The Queen (on the application of Paul Cleeland) v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde,Lord Justice Beatson |
| Judgment Date | 09 March 2015 |
| Neutral Citation | [2015] EWHC 155 (Admin) |
| Docket Number | Case No: CO/17618/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2015 |
[2015] EWHC 155 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Holroyde
Case No: CO/17618/2013
Mr Cleeland appeared in person
Mr Michael Aspinall (instructed by CCRC) for the Respondent
Hearing dates: 19th November 2014
On 22 nd April 2014 the Criminal Cases Review Commission (hereafter, "the Commission") notified Mr Paul Cleeland that they had decided not to refer his murder conviction to the Court of Appeal, Criminal Division (hereafter, "Court of Appeal"). This is an application by Mr Cleeland for judicial review of that decision. It follows a long series of unsuccessful attempts by Mr Cleeland, over many years, to overturn his conviction. Before summarising the history of those earlier proceedings, and considering the present application, it is convenient first to consider the position of the Commission.
The Commission was established by Part II of the Criminal Appeal Act 1995. By section 9(1) of that Act, the Commission "may at any time refer" a conviction to the Court of Appeal. By section 9(2) such a reference "shall be treated for all purposes" as an appeal against conviction under s1 of the Criminal Appeal Act 1968. The criteria for making a reference are set out in section 13 of the 1995 Act:
"(1) A reference of a conviction … shall not be made … unless
a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,
b) the Commission so consider
(i) in the case of a conviction … because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it …
c) an appeal against the conviction … has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it"
If a reference is made, the Court of Appeal are required by section 2 of the Criminal Appeal Act 1968 to allow an appeal against conviction if they think the conviction is unsafe. By section 23 of the 1968 Act, the Court of Appeal may receive fresh evidence "if they think it necessary or expedient in the interests of justice" to do so. Section 23(2) provides –
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
The effect of those statutory provisions, in a case in which an applicant requests the Commission to refer his conviction to the Court of Appeal on the basis of fresh evidence, was explained in R v CCRC ex parte Pearson [1999] 3 All ER 498. At p505J Lord Bingham CJ noted that "the judgment required of the Commission is a very unusual one, because it inevitably involves the prediction of the view another body (the Court of Appeal) may take". He went on to say at 506A:
"In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction?"
R v CCRC ex parte Pearson also establishes clearly that an applicant who seeks to challenge a decision of the Commission, refusing to refer his case to the Court of Appeal, faces a high hurdle. Lord Bingham CJ said at p505C "The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else". He went on to say, at p505E –
"The 'real possibility' test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not."
That approach was confirmed in later cases including R v CCRCex parte Hunt [2001] 2 Cr App R 76 and Mills and Poole v CCRC [2001] EWHC 1153 (Admin). Earlier in the long history of Mr Cleeland's efforts to overturn his conviction, when a Divisional Court was considering in 2009 a previous application which he had made for judicial review, Scott Baker LJ said that he "would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision by the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful": see R (Cleeland) v CCRC [2009] EWHC 474 (Admin) at paragraph 48.
I turn to the circumstances of Mr Cleeland's conviction. In the early hours of 5 th November 1972, Terence Clarke and his wife returned to their home in Stevenage. As Mr Clarke got out of the car he was shot twice. The circumstances clearly pointed to the gunman, armed with a shotgun, having lain in wait for Mr Clarke's return to his home. Mr Cleeland was charged with his murder. At his first trial, in April 1973, the jury were unable to reach a verdict. They were discharged, and a retrial ordered. At the conclusion of that retrial, on 25 th June 1973, Mr Cleeland was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years. He in fact remained in prison for some 26 years before being released on licence. Throughout, he has continued to protest his innocence.
At trial, there was no real issue but that Mr Clarke was murdered by someone. The prosecution alleged that Mr Cleeland was the murderer. Mr Cleeland denied that allegation. The prosecution relied on a combination of direct and circumstantial evidence which they contended proved for sure that he was the murderer. Almost every aspect of the prosecution case was hotly disputed by Mr Cleeland. Without going into all the details of the case, I summarise the main features of the evidence as follows.
First, there was evidence that Mr Cleeland had a motive to kill Mr Clarke. Mr Clarke had given Mr Cleeland a beating, apparently because he suspected that Mr Cleeland had engaged in an affair with Mrs Clarke whilst Mr Clarke was in prison. In relation to that beating, a witness who knew Mr Cleeland gave evidence that she later saw Mr Cleeland with marks of injury, and that he said to her "I'll get him for this. Not now but later. I'll get him one dark night". Mr Cleeland denied this evidence, and accused the witness of monstrous fabrication. He denied that he bore any grudge, saying that he and Mr Clarke got on reasonably well, and had a business relationship in which each provided work for the other. Mr Cleeland also said that on occasions after the beating he had worked on scaffolding with Mr Clarke and would therefore have had an opportunity to engineer an accident at height, in circumstances which would not cast any suspicion upon him, if he wished to kill Mr Clarke.
Secondly, Mr Cleeland admitted that he knew of Mr Clarke's likely movements that night. He therefore had the requisite knowledge to enable him to ambush Mr Clarke in the way the murderer did. However, the evidence gave rise to an inference that others would no doubt have been able to make at least an informed guess about Mr Clarke's movements.
Thirdly, evidence was given by Mrs Clarke, who had been present when her husband was shot. She could give only a rough description of the physique of the gunman. It was apparent that she had not formed an immediate view that it was Mr Cleeland, whom she had known for some years. She thought the gunman was wearing a suit.
Fourthly, one of Mr Cleeland's neighbours gave evidence that she had been woken by dogs barking during the night of the 4 th/5 th November, had looked out of her bedroom window and had seen Mr Cleeland (whom she knew and could recognise) going into his house. That evidence was disputed by Mr Cleeland.
Fifthly, there was important evidence about the murder weapon. The fatal wounds were...
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R Paul Cleeland v Criminal Cases Review Commission
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