R Otis Nkiwane v THE Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney |
| Judgment Date | 20 October 2015 |
| Neutral Citation | [2015] EWHC 2899 (Admin) |
| Docket Number | Case No: CO/1344/2014 |
| Date | 20 October 2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 2899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sweeney
Case No: CO/1344/2014
Gordon Bishop (instructed by Wells Burcombe Solicitors) for the Claimant
Mathew Gullick (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 17 February 2015
Introduction
With the permission of Cranston J, granted at an oral hearing on 10 July 2014, the Claimant seeks:
(1) an order quashing the Defendant's decision of 11 June 2012 to refuse him compensation for miscarriage of justice on the ground that his case did not pass the test set out by the Supreme Court in R (Adams) v Secretary of State for Justice; In re MacDermott; In re McCartney [2011] UKSC 18; [2012] 1 AC 48 (" Adams"); and/or
(2) a declaration that he is entitled to compensation under s.133 of the Criminal Justice Act 1988 ("the 1988 Act"); and/or
(3) an order requiring the Defendant to refer his application for compensation to the duly appointed assessor to assess the amount of compensation to which he is entitled; or
(4) an order requiring the Defendant to reconsider the Claimant's application on the basis of the law as it stood before the coming into force (in March 2014) of s.175 of the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act").
The Defendant submits that the Claim should be dismissed, or alternatively that no relief should be granted, as:
(1) There was no material error of law in the decision of 11 June 2012;
(2) Even if there was such an error, in consequence of the coming into force of s.175 of the 2014 Act, the statutory provisions applicable to the decision have now changed and the result of any re-determination by the Defendant under those provisions would inevitably result in the application for compensation being refused.
Against that background, and in the light of the arguments advanced on each side, the issues that I am invited to determine boil down to:
(1) Whether the Defendant's decision to refuse the Claimant's application was unlawful on public law grounds because it was:
(i) irrational and/or unreasonable; and/or
(ii) based on a false understanding of the facts; and/or
(iii) based on a misunderstanding of the law.
("The first issue")
(2) The correct interpretation of s.175(2) of the 2014 Act, and in particular whether:
(i) It means that the test in subsection (1ZA) can be applied by the Defendant to cases which were determined by him prior to the passing of the 2014 Act, but in respect of which applications for judicial review had not by then been decided; or
(ii) It is restricted to cases where the Defendant had not made a decision on an application at the time that the 2014 Act came into force.
("The second issue")
Background
On 22 July 2004, at the conclusion of a trial before His Honour Judge Breen and a jury in the Crown Court at Luton, the Claimant (then aged 26) was convicted, by a majority of 11:1, of the rape of a woman (to whom I shall refer as "Z") at a party at a house in Luton in the early hours of Boxing Day 2003. Transcripts of Z's evidence and of the summing up, together with the later Statement of Reasons by the Criminal Cases Review Commission ("CCRC") show, amongst other things, that:
(1) Everyone had been drinking to a greater or lesser extent. The issue in the case was consent. The jury were directed that, before they could convict, they had to be sure that Z's account was both truthful and accurate in all essentials.
(2) Z's account was that she had been asleep in a bedroom at the house, along with her friend Jackie, when she had woken to find the Claimant having sex with her; that she had immediately pushed him off when he refused to stop, accusing him of rape; and that thereafter, when he was standing, she had punched him on the nose – after which, despite advice not to, she had called the police.
(3) The Claimant's account was that he had gone to the bedroom twice. On the first occasion Z had been awake, and Jackie, Nicky (the host) and two other women Sylvia Zungu ("Sylvia") and Runyararo Ziyenge ("Runy") had also been present. In the presence of the others Z, who was lying on the bed, had asked him to kiss her bottom and then to perform oral sex on her, each of which he had done in turn until she had asked him to stop – saying "You're not my boyfriend". On the second visit, some minutes later, and when only Jackie (who was asleep) was also present, he had again performed consensual oral sex on Z and they had then had consensual intercourse until she had said "Stop, you're not my boyfriend", which he did – after which they had argued, Z had said "I'll call the police and say you raped me", and had struck him.
(4) When cross-examined Z said that she had no recollection of the Claimant's first visit to the room, but did recall that Nicky and "Gugu" (Sylvia) had come in and left before the alleged offence. Z said that she did not engage, or had no recollection of engaging, in oral sex with the Claimant whilst Nicky and others had been present. She was not cross-examined about a witness statement in which she had mentioned that the Claimant had entered the room whilst both Jackie and Sylvia were also there.
(5) Jackie referred to seeing the Claimant, on the first occasion, fumbling Z's breasts whilst Z was sitting on the bed – which Z had only gently admonished. On the second occasion, she had woken to hear Z angrily asking what the Claimant was doing to her, saying that he was raping her, and had then seen Z punch the Claimant on the nose.
(6) Nicky was called by the defence (albeit that her account of the detail differed from that of the Claimant) and said that she had been present with Jackie, Sylvia and Runy when Z had asked the Claimant to kiss her bottom and to perform oral sex on her and that he had done both — whereupon she (Nicky), Sylvia and Runy had left.
(7) Sylvia and Runy were not called as witnesses. Neither side had traced them by the time of the trial.
(8) The judge commented that the jury might think that if what the Claimant and Nicky had said in evidence about what had happened whilst Nicky was present was true, then Z had lied about an important issue, or at least given distorted evidence about an important issue. On the other hand, if the Claimant's account was true, they might think that Z had behaved very oddly, even for someone heavily under the influence of alcohol.
The Claimant was sentenced to 5 years' imprisonment – of which he served 3 years 42 days. He was released on 17 August 2007.
On 11 November 2005 the Claimant's application, in person, for permission to appeal, which was essentially focused upon alleged failures in the trial process, was refused by the Court of Appeal (Criminal Division) ("CACD"). At [11] & [12] of its judgment the court said:
" 11. …….This case was about whether the jury believed the complainant or whether the evidence of the applicant and the supporting witness [i.e. Nicky] at least cast doubt on it.
12. This was a strong case. It was unsurprising, in our judgement, that the jury had difficult in accepting the proposition that [Z] would have invited a man she knew as a mere acquaintance to kiss her bare bottom and perform oral sex in front of two or three other women and then immediately thereafter attack him physically and accuse him of rape. The jury had to assess this evidence. They did so. We do not regard the applicant's conviction as even arguably unsafe."
On 19 December 2005 the Claimant applied to the CCRC to refer his case back to the CACD. The CCRC took statements from Sylvia and Runy. Each stated that, a few minutes before the alleged rape had taken place, they had witnessed consensual oral sex taking place between the Claimant and Z – although neither was present when the offence itself was said to have occurred. In consequence, and in view of further evidence that had also come to light (see [10(3)] below), the CCRC referred the case back to the CACD on 25 August 2010.
The appeal was heard on 10 February 2011. In her Skeleton Argument, Counsel for the Crown, Miss Cripps, referred to the summary of the evidence at trial at [1]–[25] of the CCRC's Statement of Reasons, and indicated, amongst other things, that:
(1) Against the background that there had been acknowledged errors by the police in tracing Sylvia, the application to adduce the evidence in the statements of Sylvia and Runy was not opposed. In their CCRC statements both Sylvia and Runy had supported the Claimant's account as to what had happened in their presence. Although it was conceded that, even if such an earlier event had taken place, there remained the possibility that Z could have been raped by the Claimant, the determination of that would rest on the view to be taken of Z's credibility.
(2) The case prior to trial had been finely balanced, and had the statements of Sylvia and Runy been available, the case against the Claimant would not have survived the application of the Code for Crown Prosecutors Full Code Test – namely " is there a realistic prospect of conviction?"
In the result, the statements of Sylvia and Runy were received in evidence by the CACD without the witnesses being called, the appeal was allowed and the conviction was quashed. The judgment of the Court (see [2011] EWCA Crim 347) was given by Wyn Williams J. At [19]–[22] he said:
" 19. It seems to us that the evidence of Sylvia and Runy is capable of belief. Second, their evidence would have been admissible in the Crown Court trial. Third, there is no dispute but that such evidence might afford a ground for allowing the appeal.
20. The appellant also submits that there is a reasonable...
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