Re McFarland
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER OF GESTINGTHORPE,LORD STEYN,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL,LORD SCOTT OF FOSCOTE |
| Judgment Date | 29 April 2004 |
| Neutral Citation | [2004] UKHL 17 |
| Date | 29 April 2004 |
| Court | House of Lords |
[2004] UKHL 17
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,
The issue in this appeal is whether the respondent Secretary of State acted unlawfully in declining to pay compensation to the appellant, Mr McFarland, who was imprisoned following a conviction which was later quashed. In these proceedings, brought to challenge the Secretary of State's decision to withhold payment of compensation, Mr McFarland has been denied relief by Kerr J ( [2002] NIQB 14, [2002] NIJB 154) and by the Court of Appeal in Northern Ireland (Carswell LCJ, Campbell LJ and Weatherup J: [2002] NICA 28, [2002] NI 337). He renews his challenge before the House.
The facts
A nurse complained that Mr McFarland had entered her room in the nurses' home at Tyrone County Hospital, Omagh, late at night and touched her indecently. Mr McFarland was questioned by the police and admitted that he had been in the nurse's room and might have touched the nurse, but not that he had done so indecently. He was charged with indecent assault and pleaded guilty through solicitors at the Omagh Magistrates' Court in December 1998. In January 1999 application to vacate his plea of guilty was made to Mr McRandal, the resident magistrate. He required medical evidence to support the application, but it was granted by another magistrate. The case came on for hearing before Mr McRandal on 5 May 1999, when application was made that the magistrate should disqualify himself because he knew of the original plea. The magistrate did not accede to this application, the hearing proceeded and the complainant gave evidence.
After this evidence the magistrate called prosecuting and defending counsel to see him privately in chambers, in the absence of Mr McFarland. As a result of this meeting, defending counsel spoke to Mr McFarland and, as put in McFarland's affidavit sworn on 7 March 2000,
"He lead [sic] me to understand that the Magistrate had taken a very strong and favourable view of the evidence of the two witnesses that he had heard. He advised me that if I continued to contest the matter his understanding was that the Magistrate would most certainly refer the matter to the High Court for sentencing where I would receive a sentence of 18 months or more …".
In the light of this intimation Mr McFarland changed his plea to guilty. His counsel sought an adjournment so that a pre-sentence report could be obtained, but this was refused and Mr McFarland was sentenced to eight months' imprisonment. He appealed to the county court, but the county court judge questioned whether he could entertain an appeal following a plea of guilty; the appeal was withdrawn and the conviction affirmed. Mr McFarland served the appropriate part, four months, of the term imposed upon him.
Having served his sentence, Mr McFarland applied for judicial review to quash his conviction. The application came before a Divisional Court (Carswell LCJ and Sir John Macdermott) on 20 June 2000, and on 30 June the court gave judgment quashing the conviction: [2000] NI 403. There were before the court affidavits sworn by Mr McFarland, the magistrate and counsel who had represented Mr McFarland in the magistrates' court, which to some extent conflicted. But it was plain that there had been a private meeting in the magistrate's chambers, that the magistrate had commented on the strength of the complainant's evidence, that the magistrate had mentioned the possible need to refer the case to the Crown Court for sentence, where a sentence of eighteen months' imprisonment might well be imposed, and that defence counsel had passed on the gist of the magistrate's observations to Mr McFarland. Having analysed the affidavit evidence the Divisional Court rejected as "unfounded" the complaint made by Mr McFarland that he had been subjected to pressure by which his will had been overborne. The court however acceded to an alternative submission made on behalf of Mr McFarland, that he had been misled by the magistrate's reference to sending the case to the Crown Court for sentence and to a sentence of eighteen months', since under the relevant legislation the magistrate could not commit Mr McFarland to the Crown Court for sentence after conviction, and therefore the maximum sentence which Mr McFarland could have faced on conviction by the magistrate was twelve months'. The court treated the case as analogous with that considered in R v Turner [1970] 2 QB 321, 326, where Lord Parker CJ observed that
"once [the defendant] felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter."
Giving the judgment of the court Carswell LCJ concluded (page 409):
"The conviction in the present case is flawed, because it rests on a plea of guilty which was vitiated by the lack of true consent on the part of the applicant brought about by misapprehension stemming from the magistrate's discussion with counsel."
The court accordingly quashed the conviction and ruled that there could be no retrial. The judgment ended with cautionary observations discouraging judges and magistrates from discussing with counsel in chambers matters relating either to issues in the case or to sentence:
"… we take the view that judges should exercise a considerable degree of reticence about giving an indication of the penalties which they have in mind. We certainly consider that they should be careful to avoid entering into discussions such as those in the present case which could be interpreted in such a way by the defendant as to affect his free will in deciding on his course of action."
On 25 July 2000, Mr McFarland's solicitors applied to the Secretary of State for compensation.
The payment of compensation
In any liberal democratic state there will be those who are accused of crime and are acquitted at trial. There will also be those who are convicted at trial but whose convictions are quashed on appeal. All will suffer the stigma of being accused and the trauma of standing trial. Those convicted at trial are also likely to suffer some months of imprisonment before their appeals are heard. The question inevitably arises whether the state, which has initiated such unsuccessful, or ultimately unsuccessful, prosecutions should compensate those, or some of those, who are acquitted.
This is a difficult and sensitive question, for two main reasons. The first is that ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just deserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter. The second source of difficulty and sensitivity derives from the interaction, in this field, of judicial and executive activity. Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside. This is reflected in section 14(1)(a) of the Criminal Appeal (Northern Ireland) Act 1980 and is currently reflected in section 10 of the Criminal Appeal Act 1995, providing for suspect convictions to be referred to the Court of Appeal for a final decision. Only very rarely could it be appropriate for the executive to act in a way which threw doubt on a judicial decision.
The payment of compensation to some acquitted defendants is by no means novel. Adolf Beck was compensated in 1904. But the practice has in recent years been put on a more systematic footing. On 29 July 1976 Mr Roy Jenkins, as Home Secretary, in a written answer (HC Deb, 29 July 1976, cols 328-330), outlined the procedure to be followed when ex gratia payments were to be made to persons wrongly convicted or charged. Claimants were to be informed:
"A decision to make an ex gratia payment from public funds does not imply any admission of legal liability; it is not, indeed, based on considerations of liability for which there are appropriate remedies at civil law. The payment is 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."
The Home Secretary made clear that the assessor would take into account any expenses incurred by the claimant "in establishing his innocence or pursuing the claim for compensation." He continued:
"In considering the circumstances leading to the wrongful conviction or charge the assessor will also have regard, where appropriate, to the extent to which the situation might be attributable to any action, or failure to act, by the police or other public authority, or might have been contributed to by the accused person's own conduct …"
On 29 November 1985, Mr Douglas Hurd, as Home Secretary, was asked to make a statement with regard to the payment of compensation to persons who had been wrongly convicted of criminal offences. His written answer was (H.C. Deb., 29 November 1985. cols 691-692):
"There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose...
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