R (Niazi) v Secretary of State for the Home Department; R (Bhatt Murphy (A Firm) and Others v Independent Assessor
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE SEDLEY,Lord Justice Laws,THE MASTER OF THE ROLLS |
| Judgment Date | 09 July 2008 |
| Neutral Citation | [2008] EWCA Civ 755 |
| Docket Number | Case Nos: C1/2007/1963, C1/2007/1935, C1/2007/1937, C1/2007/1956 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2008 |
[2008] EWCA Civ 755
The Master Of The Rolls
Lord Justice Laws
Lord Justice Sedley
Case Nos: C1/2007/1963, C1/2007/1935, C1/2007/1937, C1/2007/1956
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Queen's Bench Division (Administrative Court and Divisional Court) May LJ and Gray J
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Rabinder Singh QC and Ms Phillippa Kaufmann (instructed by Bindman & Partners for the 1st ppellant)
Mr Rabinder Singh QC and Mr Stephen Cragg (instructed by Hodge Jones and Allen) for the 2nd and 3rd Appellants and (instructed by Fisher Meredith) for the 4 th Appellant)
Mr Jonathan Swift (instructed by The Treasury Solicitor ) for the Respondents
Date of Hearing: 14 & 15 April 2008
INTRODUCTION
There are two sets of appellants before the court. I will call them respectively “the applicants” and “the solicitors”. They seek to challenge two decisions announced by the Secretary of State in a written ministerial statement on 19 April 2006. Other decisions were also announced in the statement, but we are not concerned with those. The statement's context was the existence until that date of two concurrent schemes to compensate victims of miscarriages of justice. There was a statutory scheme provided for by s.133 of the Criminal Justice Act 1988 (“the 1988 Act”). There was also a discretionary scheme operated under the Crown's common law powers. I will describe the schemes below. The first decision now sought to be impugned was to withdraw or abolish the discretionary scheme with immediate effect save as regards applications already received. The second was a decision not of the Secretary of State's own, but of an officer called the Independent Assessor (at present Lord Brennan QC). It was to the effect that as from 19 April 2006 legal costs incurred in relation to applications (both under the statutory scheme which continued, and as regards extant applications under the discretionary scheme) should be assessed by reference to the level of fees paid for Legal Help pursuant to the Community Legal Service (Funding) Order 2000. There were certain transitional arrangements which I will describe. The previous basis of assessment had been more generous. It allowed for sums by way of legal costs (which were included in the overall figure for compensation arrived at in any given case) which were reasonable and proportionate.
The applicants are three persons who claim to have suffered miscarriages of justice. They had instructed solicitors before 19 April 2006, but no applications on their behalf had been submitted to the Secretary of State prior to that date. None of them is eligible for compensation under the statutory scheme. Their prospective claims would be under the discretionary scheme. The solicitors are six firms possessing specialist professional skill in this field, having over time represented many persons seeking compensation for actual or alleged miscarriages of justice. I give below a more detailed account of the facts relating both to the applicants and the solicitors. With permission granted by Calvert-Smith J they both sought judicial review: the applicants of the decision to withdraw the discretionary scheme, the solicitors of the decision to substitute Legal Help costs. The applications were dismissed by the Divisional Court (May LJ and Gray J) on 26 June 2007. The solicitors appeal to this court with permission granted by the court below; the applicants with permission granted by myself on 16 October 2007.
The case requires the court to revisit the law relating to legitimate expectations. It is a field much trodden in recent years, but its principles are still developing.
COMPENSATION FOR MISCARRIAGES OF JUSTICE: THE SCHEMES AND THEIR BACKGROUND
Since as long ago as 1905 the Home Secretary has from time to time made ex gratia payments to the victims of miscarriages of justice. Since 1957 the level of such payments has been fixed on the advice of an Independent Assessor. In a written answer in the House of Commons on 29 July 1976 the then Home Secretary, Mr Roy Jenkins, described the payments as being “offered in recognition of the hardship caused by a wrongful conviction or charge and notwithstanding that the circumstances may give no grounds for a claim for civil damages”. On 20 May 1976 the United Kingdom had ratified the International Covenant on Civil and Political Rights (“the ICCPR”). On 20 August 1976 Article 14(6) of the ICCPR came into force. It provides:
“When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
From 1976 until 1985 the United Kingdom purported to fulfil its obligation under Article 14(6) by means of the existing arrangements for ex gratia payments. At length, however, measures required for compliance with Article 14(6) were placed on a statutory footing in the shape of s.133 of the 1988 Act. Mr Douglas Hurd, then Home Secretary, announced that that would be done in a statement to the House of Commons on 29 November 198S.133 provides so far as material:
“(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 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.
(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.
(5) In this section “reversed” shall be construed as referring to a conviction having been quashed—
(a) on an appeal out of time; or
(b) on a reference—
(i) under section 17 of the Criminal Appeal Act 1968…”
In the same statement on 29 November 1985 the Secretary of State described the discretionary scheme, which was to continue in tandem with the statutory scheme. This description has been taken as defining the scope of the discretionary scheme from that date on. The Secretary of State said this:
“I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph [sc. the statutory scheme] but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.
There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts may emerge at trial, or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.”
It will be apparent that a significant difference between the statutory and discretionary schemes is that the former did not cover the case where the claimant's conviction was quashed on an appeal brought within time.
The Independent Assessor fixed the level of compensation under both schemes, including sums in respect of claimants' legal costs. Under the statutory scheme this was (and is) on the footing that the phrase “the amount of the compensation” in s.133(4) of the 1988 Act is apt to include costs. Until 19 April 2006 the figures arrived at for costs were based on the private fee rates of the solicitors instructed. We were told that across the board this was some three to five times the Legal Help rate substituted by the Independent Assessor's decision announced on that date.
Both schemes have received the attention of the higher courts. The House of Lords has considered the statutory scheme in Re McFarland [2004] UKHL 17, [2004] 1 WLR 1289, Mullen [2004] UKHL 18, [2005] 1 AC 1, and O'Brien [2007] UKHL 10. In the last case Lord Bingham of Cornhill made these general remarks at paragraph 11:
“… [N]or does the right to compensation in any way depend on the existence or proof of any delictual wrong recognised by the law. Wrongful conviction and punishment may and often are the result of delinquency on the part of public officials or others, but this is not...
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