Roger Kearney v The Chief Constable of Hampshire Police
|England & Wales
|Lady Justice Simler,Lord Justice Underhill
|31 October 2019
| EWCA Civ 1841
|Case No: C1/2018/2531/PTA
|Court of Appeal (Civil Division)
|31 October 2019
 EWCA Civ 1841
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mrs Justice Andrews
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lady Justice Simler
Case No: C1/2018/2531/PTA
Philip Rule (on the preliminary question of jurisdiction) and Mr Mark Harries QC (appearing on the substantive application) (instructed by Hackett & Dabbs LLP) for the Appellant
Matthew Holdcroft (instructed by Office of the Force Solicitor for Hampshire Police) for the Respondent
Hearing dates: 16 July 2019
The Appellant, Roger Kearney, has been seeking to challenge by judicial review, the failure or refusal by the Chief Constable of Hampshire Police, the Respondent, to disclose original CCTV footage said to be relevant to his appeal against his conviction for murder. Andrews J refused permission to apply for judicial review. She held the application was totally without merit (“TWM”) so that the Appellant was not entitled to renew his application at an oral hearing.
This appeal is a challenge to those decisions (to use a neutral term for reasons that will appear below), but a preliminary jurisdictional question arises as to whether the proposed appeal is “from a judgment of the High Court in any criminal cause or matter” so that s.18(1)(a) of the Senior Courts Act 1981 applies to restrict the Court of Appeal's jurisdiction to consider it.
It is common ground that if the court has no jurisdiction to hear the appeal, then, subject to a point of law of general public importance first being certified, the only route of appeal from the Administrative Court is or would be to the Supreme Court with permission granted either by the Administrative Court or by the Supreme Court itself. On the other hand, if the court does have jurisdiction, the question whether permission to appeal should be given must then be determined.
The background against which the jurisdictional question arises can be summarised as follows. The Appellant was convicted of the murder of Paula Poolton who was killed in October 2008. There was no forensic evidence linking him (or any other individual) to this murder, as was made clear to the jury. His conviction was based on many strands of circumstantial evidence of varying degrees of strength and cogency. One of these strands was the prosecution and defence CCTV experts' interpretation of CCTV footage relied on by the prosecution to show the probability that the vehicle captured in various frames between 21.30 (when he left home and drove to meet the victim), 21.40 (when she was captured on CCTV at Tesco), and 22.26 (when her phone stopped responding to calls/texts) and he continued to his work, arriving late and completing his shift, was the motor car driven by the Appellant, albeit there was no positive evidence identifying that vehicle by its registration number since no registration plate was visible.
Following his unanimous conviction on 11 June 2010, the Appellant applied for permission to appeal but was refused permission by Evans J (on the papers) by a decision of 18 November 2010. An application to renew to an oral hearing was made but withdrawn by the Appellant before the hearing. That withdrawal brought the criminal appeal proceedings to an end.
Subsequently, in December 2012 the Appellant made an application to the Criminal Cases Review Commission (“the CCRC”) to refer his conviction to the Court of Appeal Criminal Division. To support his application to the CCRC, the Appellant requested (for the first time) the original CCTV footage from which extracts were produced by the prosecution at his trial and assembled in a compilation disc played to the jury at trial. It is his case that the original footage is relevant to the question whether or not he left home in sufficient time to have committed the murder before he arrived at his place of work that evening. It is therefore relevant to the safety of his conviction and his alibi for the relevant time. The Appellant has obtained a preliminary report from an expert expressing a positive view on this question but he has asked to see the original CCTV footage given issues as to the quality of the compilation footage.
The Respondent originally expressed her willingness to disclose the material to the CCRC, but declined to disclose it to the Appellant directly.
The CCRC however, made clear that they did not propose to instruct their own expert to examine the footage. As the CCRC explained, it gave careful consideration to each of the submissions made on behalf of the Appellant regarding the CCTV evidence and considered whether any further work should be undertaken. It did not identify any work that it considered could potentially lead to a finding that would undermine the safety of the Appellant's conviction. In particular, it observed that both trial experts identified other vehicles which they considered presented in a similar way to the vehicle said to have been driven by the Appellant at the material time. Where there was a possibility that the captured image was of an alternative vehicle, this was highlighted. The CCRC found no evidence to suggest that the trial experts had not undertaken thorough and fully considered examinations of the material in question. Moreover, there were agreed sightings of the Appellant's car captured on the CCTV footage and the CCRC concluded that even if other vehicles indistinguishable to the Appellant's vehicle were captured on CCTV around the murder scene, outside the original timeframes, this would not significantly undermine the significance of the agreed sightings. For these and other reasons, the CCRC did not delay their decision on the Appellant's case to await disclosure of the original CCTV footage.
By a decision dated 31 October 2017, the CCRC concluded that there are no grounds to refer the Appellant's conviction to the Court of Appeal and declined to do so. By that time, the CCRC had undertaken its own enquiries and instructed further DNA testing but ultimately, had not been able to identify any new evidence or a new argument which it considered would give rise to a real possibility that the Court of Appeal would quash the Appellant's conviction. The CCRC gave comprehensive and cogent reasons for its adverse decision on the Appellant's prospects of success in an appeal against conviction.
Notwithstanding the CCRC's decision, and supported by a charity called “Inside Justice”, the Appellant has continued to seek disclosure of the original CCTV footage. The Respondent has maintained her refusal to disclose the material to the Appellant, ultimately concluding that it is not required for a legal purpose because of the CCRC's disengagement. Further, and in any event, the Respondent concluded that it would be disproportionate to disclose the material in the particular circumstances.
By a judicial review claim form filed on 18 July 2018, the Appellant sought to challenge the refusal of post-conviction disclosure on public law grounds. The application was resisted. By a decision (again, using a neutral term) made on the papers, dated 11 October 2018, Andrews J refused permission to apply for judicial review and certified the application as TWM. The judge gave full reasons, concluding that there is no obligation on the Respondent in circumstances such as this to disclose material to assist the Appellant in an attempt to persuade the CCRC to change its mind. She observed that the Respondent fully complied with all her legal post-conviction disclosure obligations: the material requested was not new and it was rational for the Respondent to conclude that it is not material which might cast doubt on the safety of the conviction and that its disclosure would entail a disproportionate allocation of police resources. There was no prospect of establishing that the ongoing refusal is a disproportionate interference with the Appellant's human rights. The judge's certification of the application as TWM meant that the Appellant could not request that the decision to refuse permission should be reconsidered at an oral hearing.
The legal framework
It has long been the case that appeals from the High Court in criminal causes or matters lie to the Supreme Court (and before its creation to the Judicial Committee of the House of Lords) and not to the Court of Appeal. This flows from successive statutory provisions, now found in s.18(1) of the Senior Courts Act 1981 (“the SCA”) which provides:
“18. – Restrictions on appeals to Court of Appeal
(1) No appeal shall lie to the Court of Appeal –
(a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter;
(b) from any order of the High Court or any other court or tribunal allowing an extension of time for appealing from a judgment or order;
(c) from any order, judgment or decision of the High Court or any other court or tribunal which, by virtue of any provision (however expressed) of this or any other Act, is final.”
Section 151(1) SCA defines “cause” as meaning “any action or any criminal proceedings” and “matter” as meaning “any proceedings in court not in a cause.”
Section 1 AJA provides:
“1. – Right of appeal.
(1) Subject to the provisions of this section, an appeal shall lie to the Supreme Court, at the instance of the defendant or the prosecutor, —
(a) from any decision of the High Court in a criminal cause or matter; …”
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