R Paul Cleeland v Criminal Cases Review Commission

JurisdictionEngland & Wales
JudgeLord Justice Bean,Lady Justice Andrews,Lord Justice Underhill
Judgment Date11 January 2022
Neutral Citation[2022] EWCA Civ 5
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2021/1555/PTA
Between:
The Queen on the application of Paul Cleeland
Applicant
and
Criminal Cases Review Commission
Respondent

[2022] EWCA Civ 5

Before:

Lord Justice Underhill

(Vice-President, Court of Appeal, Civil Division)

Lord Justice Bean

and

Lady Justice Andrews

Case No: C1/2021/1555/PTA

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

MR JUSTICE LAVENDER

CO/227/2020

Royal Courts of Justice

Strand, London, WC2A 2LL

Edward Fitzgerald QC and Abigail Bright (instructed by Arora Lodhi Heath) for the Applicant

Sarah Clover (instructed by CCRC) for the Respondent

Hearing date: 8 December 2021

Approved Judgment

Lord Justice Bean
1

On 25 October 2019 the Criminal Cases Review Commission (“CCRC”) decided not to refer to the Court of Appeal, Criminal Division (“CACD”) the conviction of the Claimant, Paul Alexander Cleeland, on 25 June 1973 for murder. By a claim form issued on 22 January 2020 Mr Cleeland applied for permission to seek judicial review of that decision. Permission was refused on the papers by Garnham J on 13 March 2020. The Claimant renewed his application to an oral hearing. In a reserved judgment handed down on 30 June 2021 Lavender J dismissed the application. Mr Cleeland seeks permission to appeal to this court. The first question is whether we have jurisdiction to entertain the appeal.

Jurisdiction

2

The Court of Appeal (Civil Division) has no jurisdiction to hear an appeal, or an application for permission to appeal, in a criminal cause or matter (s.18(1)(a) of the Senior Courts Act 1981). In R (Saxon) v CCRC [2001] EWCA Civ 1384 it was decided that an application to review a decision of the CCRC not to refer a criminal conviction came within the terms of s.18(1)(a) of the 1981 Act as being a decision in a criminal cause or matter, so that this court has no jurisdiction. However, it seems plain to me (and Ms Clover for the CCRC accepts) that this cannot stand in the light of the decision of the Supreme Court in Re McGuinness [2021] AC 392; [2020] UKSC 6. The question in that case was whether a convicted murderer, Michael Stone, would be first eligible for release on licence in 2018 or 2024. The Parole Commissioners for Northern Ireland decided that the tariff expiry date was in 2018. Mrs McGuinness, widow of one of Stone's victims, sought judicial review. The Divisional Court of the Queen's Bench Division in Northern Ireland upheld her challenge and held that the correct date was 2024.

3

Before the Divisional Court all parties accepted that the case was a “criminal cause or matter”. Mr Stone applied for and was granted a certificate that a point of law of general public importance was involved and the Supreme Court itself granted him permission to appeal. However, the Attorney General for Northern Ireland was permitted to intervene and to contend that the Supreme Court had no jurisdiction to hear a direct appeal from the Divisional Court because this was not a criminal cause or matter. The Supreme Court upheld this contention.

4

Although the issue about Mr Stone's eligibility for release arose under the Belfast Agreement of 1998, the statutory provisions relating to routes of appeal are identical for England and Wales and for Northern Ireland, in particular the restriction on appeals from the High Court to the Court of Appeal in a criminal cause or matter. Lord Sales, with whom the other Justices agreed, reviewed what he described as the “tangled web of jurisprudence” surrounding the phrase “criminal cause or matter”. He pointed out at [68] that if the phrase is given an “overly expansive interpretation”, this “would have the effect of reducing to an unacceptable degree parties' access to justice at appellate level, leaving pockets of unchallengeable, potentially erroneous first instance decisions.” In paragraph [77] he referred to the decision of the House of Lords in Amand v Home Secretary [1943] AC 147. That case explained how to identify what counts as a decision in a criminal cause or matter. Viscount Simon LC said that the question was whether the High Court proceedings were proceedings “the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so”. Lord Wright said that the question was whether they were proceedings “which, if carried to [their] conclusion, might result in the conviction of the person charged and in a sentence of some punishment”.

5

Applying those tests (which seem to me indistinguishable), Lord Sales held that the issue of Mr Stone's tariff expiry date was not a decision in a criminal cause or matter and that the correct route of appeal from the Divisional Court was to the Northern Ireland Court of Appeal. I would hold that the Saxon case has clearly been overruled by McGuinness and that we therefore have jurisdiction to hear this application for permission to appeal. I note that the Divisional Court in Northern Ireland has taken the same view in Re Quinn [2020] NIQB 24.

Principles applicable to judicial review of the CCRC

6

Prior to the establishment of the CCRC the only course open to a serving prisoner whose appeal against conviction or sentence had been dismissed was to petition the Home Office for a review of his case. The Criminal Appeal Act 1995 changed this by establishing the CCRC with the power under section 9 of the Act to refer a conviction to the CACD. Section 13(1)(a) provides that “a reference of a conviction shall not be made” [emphasis added] unless the Commission considers that there is a real possibility that the conviction would not be upheld. That raises the issue of what test the CACD applies when deciding whether to uphold a conviction in cases where evidence is put before them which was not before the jury at the appellant's trial.

Principles applicable to fresh evidence cases in the CACD

7

Section 2 of the Criminal Appeal Act 1968 (as amended) provides that, subject to the provisions of the Act, the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case…”

8

Section 23(1) of the 1968 Act gives the CACD the power to receive any evidence which was not adduced at the trial. Section 23(2) provides that:-

“The Court of Appeal shall in considering whether to receive any evidence, have regard in particular to—

a) whether the evidence appears to the court to be capable of belief;

b) whether it appears to the court that the evidence may afford any ground for allowing the appeal……”

9

Mr Fitzgerald QC relied on the speech of Lord Bingham in R v Pendleton [2001] UKHL 66; [2002] 1 WLR 72 on the approach to the safety of a conviction in a fresh evidence appeal. The following points emerge from Lord Bingham's speech:-

(1) The Court of Appeal is not, and should never become, the primary decision maker.

(2) The Court of Appeal “has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard.”

(3) In a case of any difficulty, it will usually be wise for the Court to test its own provisional view by asking whether the fresh evidence might reasonably have affected the decision of the trial jury to convict.

(4) If the fresh evidence might reasonably have affected the decision of the jury then the conviction must be thought to be unsafe.

10

However, it is clear from subsequent decisions of high authority that Pendleton does not alter the principle that the ultimate responsibility for deciding whether a conviction is safe rests with the CACD. In Dial v Trinidad and Tobago [2005] UKPC 4, [2005] 1 WLR 1660 Lord Brown of Eaton-under-Heywood, giving the advice of the Judicial Committee of the Privy Council (one of whose members sitting on the appeal was Lord Bingham), said:

“The law is now clearly established and can simply be stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, always assuming that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.”

11

In R v Noye [2011] EWCA Crim 650 Lord Judge CJ reaffirmed the position that the ultimate responsibility for deciding whether a conviction was safe rested with the CACD. He recognised at [31] the difficulties which can face the court when assessing the impact of fresh evidence on the safety of the conviction. But, he said, the essential question was whether in the light of the fresh evidence the conviction was unsafe. The responsibility rested with the court.

The test for the CCRC to apply

12

It follows that the question for the CCRC to answer, when asked to refer a conviction to the CACD, is whether the CCRC considers that there is a real possibility that the CACD will admit the fresh evidence and in the light of it will consider the conviction unsafe. Mr Fitzgerald accepted that this is the usual position but argued that special principles apply where the fresh evidence is not extraneous to the evidence which was before the jury but undermines it. He drew our attention to the well-known case of Barry George [2007] EWCA Crim 2722. In that case a crucial element of the otherwise circumstantial case against the defendant was that a single particle of firearm discharge residue (FDR) had been found in the pocket of the defendant's coat. The CACD quashed the conviction for murder and ordered a retrial (at which Mr George was acquitted).

13

The CACD said:-

“52 … We have to decide...

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