The Queen (on the Application of Danny Kay) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur,Mr Justice Foxton |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWHC 2125 (Admin) |
| Docket Number | Case No: CO/1704/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur and Mr Justice Foxton
Case No: CO/1704/2020
Mr Philip Rule and Mr Benjamin Harrison (instructed by Instalaw Ltd) for the Claimant
Mathew Gullick QC (instructed by The Government Legal Department) for the Defendant
Hearing dates: 26 & 27 May 2021
Approved Judgment
Introduction:
The Claimant challenges the Defendant's refusal to pay him compensation under section 133 (as amended) of the Criminal Justice Act 1988 in the circumstances described below. The Defendant resists the claim.
Julian Knowles J granted permission on all grounds, as indicated in [21] below, expressing doubt about the strength of some aspects of certain of the grounds but stating that “ as these are just strands of the Claimant's interlocking overall Convention/fairness complaint I will not shut him out from arguing them in order that the Court can see the complete picture.”
In extending time for the challenge to be brought, Julian Knowles J stated that “ given the length of time (22 months, from March 2018 – January 2020) the Defendant took to reach the decision now challenged despite repeated correspondence from the Claimant's solicitors chasing for a decision which attracted stonewalling responses from the Defendant; [and] given the clearly and obviously wrong basis of the Defendant's first decision in October 2019… I do not deny permission on that basis …”.
Notwithstanding this admonition, it is noteworthy that the Defendant did not reply to an email dated 12 March 2021, sent from the Claimant's solicitor seeking further disclosure, until 12 April 2021 and then in a begrudging tone, in the main asserting that the Claimant was involved in a fishing expedition. We do not need to adjudicate upon that claim, since on the first day of the hearing before us, further documents were produced by the Defendant exhibited to a witness statement of Mr Glenn Palmer signed on 17 May 2021. The application to rely on this witness statement stated that this was as a result of “ reconsideration” of the Claimant's requests in “ most recent correspondence” and “ in the interests of assisting the Court and facilitating the effective resolution of these proceedings”. The information provides “ an account of Mr Palmer's historical involvement in the decision making process”.
The documents are obviously pertinent to the claim, and I have no hesitation in giving leave for them to be admitted into the proceedings. However, in doing so, I observe that there was no good reason provided, nor any that I can discern, why the relevant department was not more forthcoming to the requests made beforehand.
The Defendant's approach and his failure to engage with the complaint expeditiously or effectively may well have heightened the Claimant's sense of injustice and contributed to his perception that his claim for compensation had not been dealt with lawfully. Overall, I regard the Defendant as having conducted himself over-defensively at times, something which merits adverse comment. Nevertheless, for the reasons set out below, I would dismiss the claim. I consider it to be misconceived and dependent upon an entirely erroneous interpretation of the judgement of the Court of Appeal (Criminal Division) which quashed the Claimant's conviction, and upon a misguided perception that it is the process ultimately adopted by the Defendant which has denied the Claimant the opportunity to establish his ‘innocence’ beyond reasonable doubt.
Relevant Background Facts
On 23 September 2013, the Claimant was convicted of rape and subsequently sentenced to serve an immediate custodial term of 4 years and 6 months. The issue in the case was consent. The Claimant has always maintained that the complainant was obviously willing and consented to engage in sexual intercourse.
At trial, the jury were shown Facebook messages going between the Claimant and the complainant which the former had always insisted were partial and incomplete. The Claimant repeatedly asked the prosecution to obtain the full Facebook exchanges, which at that stage the Claimant thought he could no longer access from his own Facebook account. The full exchanges were only obtained by the Claimant's family and new legal team from his archive folder after the conviction.
An application for an extension of time in which to seek leave to appeal against conviction based on fresh evidence was lodged on 15 March 2016. The fresh evidence comprised the complete Facebook exchanges between the Claimant and the complainant. It became apparent from the full exchanges that by deleting certain parts of the conversation, the complainant had effectively manipulated the sequence, and therefore the apparent effect, of the substance of the messages.
Although the deleted messages were always “available” to the Claimant if he had thought to access his archive folder, the “fresh evidence” was nevertheless admitted pursuant to section 23 of the Criminal Appeal Act 1968 into the appeal which followed on 17 November 2017. The appeal was allowed. Significantly, for the purpose of this application, the judgment of the Court recorded the submission made on the Claimant's behalf:
“It is submitted that the evidence of the full message exchange goes directly to the veracity of both A and the applicant. A deleted a total of 29 separate messages sent and received in February and March 2012 from the record. A comparison between the version of the messages in the exhibit before the jury and the full exchange reveals that the messages deleted were selective. In consequence, a number of significant and misleading impressions were given in the edited trial version.” [26]
Having described the nature and contents of the complete Facebook conversation by reference to Counsel's submissions, the Court said:
“We have come to the conclusion that, in a case of one word against another, the full Facebook message exchange provides very cogent evidence both in relation to the truthfulness and reliability of A, who, in any event, gave a series of contradictory accounts about other relevant matters, and the reliability of the applicant's account and his truthfulness. We are, of course, mindful of the approach directed by R v. Pendleton [2002] 1 WLR 72, HL. We are satisfied that this further evidence does raise a reasonable doubt as to whether the applicant would have been convicted had it been before the jury, thus rendering the conviction unsafe. We also consider that there is, in the unusual circumstances of this case, a reasonable explanation for the failure to adduce the evidence at the trial.” [30]
Consequently, the conviction was quashed by judgment handed down on 21 December 2017. The prosecution indicated that it did not seek a retrial.
Application for compensation.
On 30 May 2018 the Claimant applied for compensation under section 133 of the Criminal Justice Act 1988. In the section headed ‘Reasons for applying’ it is stated that: “ The CA concluded that the conviction was unsafe (to apply that statutory test) on the clear basis that the applicant's (DK's) case was the truthful one, and that there had been consent to sexual intercourse contrary to the unreliable and untruthful complainant.” He went on to assert that “ the evidence now available demonstrating the innocence of DK is not reasonably to be doubted” and that the Secretary of State must apply a presumption of innocence required by Article 6(2) ECHR “ following a clear and constant line of jurisprudence as the CA would have done if not precluded by rules of precedent: R (Hallam) v SSJ [2017] QB 571. The SC has granted leave to appeal…The ECtHR would so find.”
The application was supported by a witness statement of the Claimant detailing the impact upon him of the conviction and subsequent imprisonment. In summary, the experience has affected him physically, emotionally, and psychologically. The Claimant was also highly critical of the justice system because of his perception of the inadequate investigation of the case against him.
On 7 June 2018 the Defendant acknowledged receipt of the application. Subsequently, the Claimant's solicitors repeatedly contacted the Defendant to progress the claim to little effect. On 29 January 2019 the Claimant's solicitors indicated that judicial review proceedings were in contemplation, and requested, inter alia, a copy of the internal guidance and policy in use for determining the process to be followed when deciding applications for compensation; a copy of any internal submission or provisional decision that was provided to, or placed before the decision-maker in relation to the Claimant's application; and, an opportunity to provide representations in relation to that material before a decision was taken.
On 6 February 2019 the Defendant responded stating that the case was under active review; referring to the documents and information being obtained from external agencies such as the courts and the Crown Prosecution Service and the fact of a backlog of applications. On 1 March 2019 the Claimant's solicitors emailed the Defendant re-iterating their previous requests and seeking a reliable time estimate for a response. By letter dated 2 May 2019, the Defendant stated the case remained under active review, and that the decision would be taken taking into account the documents submitted with the application form and from...
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...AC 279 at [18]–[19]. This was noted by the Divisional Court (Macur LJ and Foxton J) in R (Kay) v Secretary of State for Justice [2021] EWHC 2125 (Admin) at [26]. Referring to Adams, and the insertion of subsection (1ZA) by the 2014 Act, Macur LJ said: “Category 2 covered those cases where ......