The Queen (on the application of (1) Robert Clark and (2) Christopher Drury) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr Justice Blake |
| Judgment Date | 10 August 2015 |
| Neutral Citation | [2015] EWHC 2383 (Admin) |
| Date | 10 August 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2541/2014 |
[2015] EWHC 2383
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
and
Mr Justice Blake
Case No: CO/2541/2014
Mr Alun Jones QC and Ms Laura Herbert (instructed by Kaim Todner Solicitors Ltd) for the Claimant
Mr James Strachan QC and Mr Mathew Gullick (instructed by Government Legal Department) for the Defendant
Hearing date: 24 February 2015
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Introduction
Section 133 of the Criminal Justice Act 1988 (the CJA 1988) provides a statutory entitlement to compensation to persons whose criminal convictions have been reversed in out-of-time appeals or where they have been pardoned, on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice; and for the question as to whether there is a right to such compensation to be determined by the Secretary of State.
This claim for judicial review made on 2 June 2014, challenges the decisions made by the Secretary of State for Justice that the claimants, Robert Clark and Christopher Drury, are not entitled to compensation for a miscarriage of justice under section 133 of the CJA 1988. The decisions were communicated to the claimants in letters from the Secretary of State for Justice dated 13 March 2014; and were made under section 133 prior to its amendment by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act).
Permission to apply for judicial review was granted on 18 October 2014 by Collins J on a limited basis. The point he considered arguable was whether, after both cases had come to retrial, no conviction could properly have resulted, and accordingly there has been a miscarriage of justice. He said the paucity of reasons is not by itself an arguable ground. However the lack of proper reasons (if established) was material in considering whether the decision properly addressed the situation, and so was reasonable. He rejected a ground relying on delay as unarguable.
For the reasons given below, I would dismiss these claims.
Factual background
(i) The convictions
On 3 February 2000 after a 48 day second trial at the Central Criminal Court before Blofeld J, and a jury (the trial), the claimants were each convicted of offences of conspiracy to supply class B drugs and perverting the course of justice. Two co-accused, Lawson and Pearce were acquitted of similar charges. The first trial had begun on 4 October 1999 but the jury was discharged on the claimants' application in November 1999.
The claimants and their co-accused were all police officers serving with the South East Regional Crime Squad (SERCS) at the time of the offences alleged against them. These offences concerned the alleged corrupt 'recycling' of drugs seized by the claimants and others in SERCS from suspects, to the financial benefit of officers in SERCS and others with whom they conspired.
Robert Clark was convicted on two 'pairs' of counts referred to as the 'Nutley' counts and the 'Guildford John' counts. The Nutley counts were count 1, conspiracy to supply class B drugs and count 2, perverting the course of justice. The Guildford John counts were count 10, conspiracy to supply class B drugs and count 11, perverting the course of justice. His total sentence was one of 12 years' imprisonment. 1
Christopher Drury was also convicted on count 10, and one pair of counts referred to as the 'Briar Cottage' counts, counts 12 and 13, each a count of perverting the course of public justice. His total sentence was one of 11 years' imprisonment. 2
Three other police officers serving with SERCS, Thomas Reynolds, Terance O'Connell and Thomas Kingston, were convicted of similar offences at a subsequent trial. 3
The safety of the claimants' convictions has been considered on two occasions by the Court of Appeal, Criminal Division (CACD). First, in 2000, when their appeals against conviction were unsuccessful but their sentences were reduced: Clark's sentence was reduced to 10 years imprisonment, and Drury's to 8 years' imprisonment: see R v Drury & Ors [2001] EWCA Crim 975 (Potter LJ, Hallett and Gibbs JJ), which I shall refer to as the first appeal.
Secondly, following a reference made to the CACD on 23 February 2009 by the Criminal Cases Review Commission (CCRC) under section 9 of the Criminal Appeal Act 1995: see R v & Clark & Anor [2010] EWCA Crim 2849 (Hooper LJ, Davis and Foskett JJ). Two references were made, one for each claimant, but they were to all intents and purposes the same, and I shall refer to them as the reference.
At the second appeal, the claimants' convictions were quashed and a retrial ordered on counts 10 to 13 (the 'Guildford John' and 'Briar Cottage' counts).
On 19 October 2011, part way through a pre-trial hearing of applications to stay the retrial as an abuse before Bean J, at the Central Criminal Court, the prosecution decided to offer no evidence. It was following this, that the claimants' claims for compensation under section 133 of the CJA 1988 were then made.
(ii) The trial, and the events which led up to it
The facts that follow are taken for the most part from the judgments of the CACD in the first and second appeals.
Two witnesses for the Crown against the claimants are significant to this narrative: Evelyn Fleckney and Neil Putnam.
Evelyn Fleckney had been a registered police informant between 1991 and October 1995. Robert Clark was her "handler" for most of that period. In October 1996, Fleckney was arrested for conspiracy to supply drugs, offences committed mainly in 1996, and on 2 March 1998, she was convicted and sentenced to a total of fifteen years imprisonment.
In April 1998, within weeks of her 15 year sentence being passed, Fleckney was removed from prison, and moved into police custody by officers of the Metropolitan Police, ostensibly under section 29 of the Criminal Justice Act 1961 which permitted the making of orders for the production at the request of the police. Over the next 6 months, whilst in police custody, in two covert police establishments both within police stations, she made detailed allegations to the Metropolitan Police Criminal Investigation Branch, CIB3, of crimes allegedly committed by her and Robert Clark, and other officers of SERCS. During this period she was allowed out under guard, for entertainment, shopping trips, welfare visits etc. During questioning, she was asked about her corrupt involvement with police officers. She admitted participation in a number of further offences, was indicted for those offences, and pleaded guilty to them on 3 November 1998.
In March 1996, after he had been arrested for supplying drugs, John Cudworth, a frequently convicted trafficker in drugs known as "Guildford John" asked the arresting officers if they were going to steal his drugs, as had happened on the last occasion he had been arrested. He was encouraged to make a formal complaint and did so, as a result of which Clark and Drury were interviewed and denied what he alleged. As his complaint was unsupported, no further action was taken. As a result of Fleckney's allegations however, Cudworth was seen in prison and renewed the allegations against the claimants he had made in 1996, but which had not then been prosecuted.
Putnam was also a police officer in SERCS at the material time, and he too became an informant in the following circumstances.
Putnam's home was searched in July 1998 under the direction of Detective Chief Superintendent (later Assistant Commissioner) Yates. Putnam had not been implicated by Fleckney, but was suspected of corrupt activities and suspended. Shortly after the search, he admitted two acts of corruption to officers in CIB3 which he said he had engaged in with the claimants and Lawson and Pierce. He was charged with these offences and remanded in custody to HMP Brixton. Shortly afterwards, he was moved into police custody on the same basis as Fleckney in various police stations (removed from time to time, under guard for welfare visits, entertainment etc) where between July and September 1998 he admitted participation in further offences implicating the claimants and others. In October 1998 he pleaded guilty to 16 offences committed between 1991 and July 1997 which were subject of two indictments. 4Following the claimants' trial, in February 2000 he was sentenced to a total of 3 years and 1 month's imprisonment for those offences.
The investigation into Robert Clark and Christopher Drury was known as Operation Russia.
At trial, the incriminating evidence against the claimants came from three sources: Putnam, Fleckney, and the criminals whose property was stolen and their associates or neighbours, who had witnessed money or drugs being taken. Putnam and Fleckney were put forward by the prosecution at trial as witnesses who could be believed as to their evidence which related to the offences indicted, but albeit that they were generally tarnished by their own admitted, or exposed, lies and criminality. As a result of these concerns as to their reliability, the case proceeded upon the basis that the jury would inevitably be warned (and were warned in clear and forceful terms) to be extremely cautious before acting on either Putnam's or...
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...2015, the Defendant has drawn attention to the recent decision of the Divisional Court in The Queen (on the application of Robert Clark and Christopher Drury) v The Secretary of State for Justice [2015] EWHC 2383 (" Clark & Drury"). Section 133 of the 1988 Act 16 Section 133 was enacted in ......