R (Shields) v Secretary of State for Justice [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 2008 |
| Date | 17 December 2008 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/8024/2008
Sir Anthony May P, Maddison J
P Weatherby and L Cawsey (instructed by RMNJ) for S; J Swift (instructed by the Treasury Solicitor) for the Secretary of State.
Whether the Secretary of State could grant a pardon to a prisoner who had been transferred to the UK under the Repatriation of Prisoners Act 1984.
MS was convicted in Bulgaria of attempted murder, arising out of an incident involving visiting football fans; he was sentenced to 10 years' imprisonment. His alibi defence was rejected and identification evidence implicating him was accepted. Subsequently, another man who had been arrested at the time but not prosecuted, and who had returned to England, confessed to the crime. The Bulgarian courts declined to accept that this made MS's conviction unsafe; efforts were ongoing to seek to persuade them to revisit the matter. MS was transferred to the UK to serve the balance of his sentence under the Repatriation of Prisoners Act 1984. He asked that the Secretary of State for Justice to exercise the Prerogative of Mercy and grant him a pardon in light of the evidence of his innocence. On 17 July 2008, the Secretary of State declined this request, suggesting that it was precluded by the 1984 Act and Art 13 Convention on the Transfer of Sentenced Persons 1983 - to which the Act gave effect - which provides that "The sentencing state alone shall have the right to decide on any application for review of the judgment". The Secretary of State indicated that the application for a pardon required a review of the foreign court's judgment. Bulgarian officials indicated their view that the UK authorities had the power to pardon MS under Art 12 of the Convention, which provides that the parties to the Convention may grant "pardon, amnesty or commutation of the sentence" in accordance with domestic law.
MS commenced judicial review proceedings, arguing that Art 13 did not preclude the Secretary of State from granting a pardon; permission was granted on this ground. He also argued that the Convention was not incorporated into domestic law and so could not affect the Prerogative; permission was refused on this ground, but a renewed application was made.
Sir Anthony May P:
This is the judgment of the court.
Facts
1. At about 5.30am on 30 May 2005, English football fans were involved in an incident at the Big Ben diner at Varna in Bulgaria. A barman, Martin Georgiev, was assaulted and sustained serious head injuries. There was a large number of football fans in the resort at the time, on holiday after the European Champions League final in Istanbul. At about 8am that morning, Bradley Thompson and Graham Sankey were arrested at a nearby hotel in connection with the assault. About 3 hours later, the claimant, Michael Shields, was arrested. Later still a man called Anthony Wilson was arrested.
2. Michael Shields was subsequently charged, tried and convicted in Bulgaria of the attempted murder of Martin Georgiev. He was sentenced to 15 years' imprisonment and ordered to pay the equivalent of about £90,000 in compensation. The prison sentence was later reduced to 10 years. Thompson and Wilson were convicted of lesser public order offences. Graham Sankey was released without charge.
3. Michael Shields, who was 18 at the time, vehemently denied any involvement in the incident. He had never been in trouble with the police before. He gave alibi evidence to the trial court, but this was rejected. He also denied being associated in any way with the other 3 men who were arrested. He was convicted on the basis of identification evidence, whose quality would have been carefully scrutinised in this jurisdiction.
4. Graham Sankey returned to England. He later went to his own solicitor and eventually made a signed confession indicating that he, not Michael Shields, had been the assailant. This confession had not been available at Michael Shields's trial. It was, however, available to and considered by the Varna Appeal Court, and subsequently by the Supreme Court of Cassation. It appears to have been rejected on grounds, analogous with one or more of those in s23 of the Criminal Appeal Act 1968, that it would not have afforded grounds for allowing an appeal. In addition to Sankey's signed confession which the Bulgarian Appeal Courts did have and consider, we are told that there is a significant amount of additional circumstantial evidence which may support Michael Shields's case that he is innocent of the offence of which he was convicted in Bulgaria. Some of this material has not been judicially considered in Bulgaria, a further application for review of the conviction to the prosecutor's office, that is to the executive, having been refused.
5. After his unsuccessful appeals against conviction in the Bulgarian courts, Michael Shields was repatriated to this country to serve the balance of his 10-year sentence. The compensation had been raised by public collection. We are told that, in December 2007, Michael Shields with the agreement of the Ministry of Justice, underwent a lie detector test while he was in prison. The results, we are told, supported his contention that he was not at the scene of the attack, let alone part of it.
6. There has been a public campaign of support for what is perceived as a miscarriage of justice. There have been concerted attempts to persuade the Bulgarian authorities to reconsider the matter; but without success. The quality of the identification procedures have been the subject of an unsuccessful application to the European Court of Human Rights. There has been a petition in the European Parliament seeking to require the Bulgarian authorities to deal with the matter. In the course of explaining to the Petitions Committee why the Bulgarian authorities were unwilling to reopen or re-investigate the case, Mr Tsoni Tsonev, a member of the Bulgarian Supreme Judicial Council, said that the new pieces of evidence did not really prove anything substantial. They merely introduced a doubt.
7. The Secretary of State has written to the Bulgarian Minister of Justice, and he and Bridget Prentice MP have held meetings with her. Both the Foreign Secretary and the UK ambassador to Bulgaria have made representations. Both the Bulgarian prosecuting authorities and the executive have declined to
intervene, but on a number of occasions have indicated in writing their view that the UK authorities have power to pardon Michael Shields under Art 12 of the Convention on the Transfer of Sentenced Persons (1983), to which we shall refer later in this judgment.
8. It is evident that the Bulgarian judicial process is at an end. Michael Shields is serving in this country a sentence of imprisonment imposed upon him in Bulgaria upon his due conviction there.
9. When the Bulgarian judicial and executive position had become clear, Michael Shields's representatives asked the Secretary of State to exercise for him the royal prerogative of pardon. The Secretary of State, upon taking legal advice, declined to do so, giving his reasons in a letter dated 17 July 2008. The Secretary of State maintained that the Repatriation of Prisoners Act 1984 and the Convention on the Transfer of Sentenced Persons 1983 preclude the granting of a pardon in transfer cases where the exercise would relate to an alleged miscarriage of justice, because that would be contrary to Art 13 of the Convention. It is of this decision that Michael Shields seeks judicial review.
10. It should be emphasised that the Secretary of State has not expressed any view as to the merits of granting a pardon. He has only decided on advice that he has no power to grant a free pardon. The issue before this court is therefore a pure question of law, that is whether the...
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