R (Mullen) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER OF GESTINGTHORPE,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL,LORD STEYN,LORD SCOTT OF FOSCOTE |
| Judgment Date | 29 April 2004 |
| Neutral Citation | [2004] UKHL 18 |
| Court | House of Lords |
| Date | 29 April 2004 |
[2004] UKHL 18
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
On 20 December 2002 the Court of Appeal (Schiemann and Rix LJJ and Pumfrey J) held ( [2002] EWCA Civ 1882, [2003] QB 993), reversing a decision of the Queen's Bench Divisional Court (Simon Brown LJ and Scott Baker J: [2002] EWHC 230 Admin, [2002] 1 WLR 1857), that the Secretary of State was legally bound to pay compensation to Mr Mullen. The Secretary of State now challenges the Court of Appeal's ruling and seeks to reinstate the Divisional Court's ruling in his favour.
In agreement with all members of the committee I would allow the Secretary of State's appeal. But I would do so on a narrow ground, less far-reaching than the main submission made on behalf of the Secretary of State. In explaining the reasons for my decision, I will adopt, without repeating, the account of the facts given by my noble and learned friend Lord Steyn.
In paragraphs 7 and 8 of my opinion in R v Secretary of State, Ex p McFarland [2004] UKHL 17, I drew attention to the difficulty and sensitivity of questions affecting the payment of compensation to acquitted criminal defendants. I there made reference to the statement by Mr Roy Jenkins as Secretary of State in July 1976 and quoted in full the statement of Mr Douglas Hurd as Secretary of State in November 1985. I would refer to those passages and need not repeat them.
It is apparent from their statements that Mr Jenkins and Mr Hurd were addressing the subject of wrongful convictions and charges. For present purposes, wrongful charges need not be considered. The expression "wrongful convictions" is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.
In the course of his statement Mr Hurd recited the terms, and undertook to observe, article 14(6) of the International Covenant on Civil and Political Rights 1966, an instrument which the United Kingdom and many other states have signed and ratified. It is common ground that section 133 of the Criminal Justice Act 1988 was enacted to give effect to this obligation in domestic law, so that the right to be compensated should more obviously be "according to law". The only change was to replace the word "conclusively" in article 14(6) by the expression "beyond reasonable doubt", familiar in domestic criminal law, in section 133. The task of the House in this appeal is to interpret section 133. But both parties are rightly agreed that the key to interpretation of section 133 is a correct understanding of article 14(6).
Article 14(6) of the ICCPR is the provision of that instrument which is directed to ensuring that defendants shall be fairly tried. Despite differences of wording and substance, it matches article 6 of the European Convention. It also matches, for example, section 11 of the Canadian Charter of Rights and Freedoms, sections 24 and 25 of the New Zealand Bill of Rights and section 35(3) of the Bill of Rights incorporated in the Constitution of the Republic of South Africa. All of these provisions lay down certain familiar principles (the presumption of innocence, the right to be told of the charge against one, and so on). They address different aspects of the core right, which is to a fair trial. They have no bearing on abuses of executive power which do not result in an unfair trial.
The judgment of the Court of Appeal (Criminal Division) (Rose LJ, Colman and Maurice Kay JJ: [2000] QB 520) makes it clear that Mr Mullen was the victim of a gross abuse of executive power. The court found that the British authorities had acted in breach of international law and had been guilty of (page 535) "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". For this conduct, as it seems to me, Mr Mullen had strong grounds for a claim in conspiracy or misfeasance in public office. He could have challenged the legality of his detention, perhaps praying in aid the provisions of article 5(5) of the European Convention (reflected in article 9(5) of the ICCPR):
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation".
But Mr Mullen claims compensation under, in effect, article 14(6), the fair trial guarantee, and he cannot show any defect in his trial or the investigation leading up to it. After conviction he applied for leave to appeal against sentence only. He may, it seems, have wished to appeal against conviction, but did not do so. On his appeal out of time in January 1999, no challenge was made to the conduct of the trial itself. He had, it is true, a legitimate complaint of non-disclosure, but the material which should have been and was not disclosed related to the circumstances of his apprehension and abduction, not to the facts of his offence.
The jurisdiction exercised by the Court of Appeal (Criminal Division) when quashing the conviction of Mr Mullen was based on the reasoning of the House in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42. That case concerned a stay of proceedings. There had been no trial. But there had been unlawful conduct by the authorities which resulted in the applicant's return to this country where he was arrested and charged. The ground upon which the House held it right to intervene was explained by Lord Griffiths, who gave the leading opinion (pages 61-62):
"In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law".
He concluded (on page 64):
"The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused".
Lord Hoffmann correctly characterised this salutary jurisdiction, in my respectful opinion, when he said in R v Looseley [2001] UKHL 53, [2001] 1 WLR 2060, paragraph 40:
"The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power".
In quashing Mr Mullen's conviction the Court of Appeal (Criminal Division) condemned the abuse of executive power which had led to his apprehension and abduction in the only way it effectively could. But it identified no failure in the trial process. It is for failures of the trial process that the Secretary of State is bound, by section 133 and article 14(6), to pay compensation. On that limited ground I would hold that he is not bound to pay compensation under section 133.
The central submission of the Secretary of State was that section 133, reflecting article 14(6), obliges him to pay compensation only when a defendant, finally acquitted in circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he had been convicted. Having reached the conclusion already expressed, in favour of the Secretary of State, I need form no concluded opinion on this submission, which is strongly challenged by Mr Mullen. But in deference to the very detailed arguments advanced by Mr Sales and Mr Pleming I should very briefly indicate why, on the materials now before the House, I would hesitate to accept it.
(1) The expression "miscarriage of justice" in section 133 is drawn directly from the English-language text of article 14(6). In the article the expression describes a concept which is autonomous, in the sense that its content should be the same in all states party to the ICCPR, irrespective of the language in which the text appears. Nonetheless, "miscarriage of justice" is an expression which, although very familiar, is not a legal term of art and has no...
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