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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mullen, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 1259 (27 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1259.html Cite as: [2002] EWCA Civ 1259

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2 Monday, 27th May 2002

Monday, 27th May 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of the Divisional Court constituted by Simon Brown LJ and Scott Baker J made on 21st February 2002. On that occasion the court refused judicial review of the Secretary of State's refusal to pay compensation to the applicant whose appeal against his conviction for conspiracy to cause explosions likely to endanger life or cause serious injury to property was allowed by the Criminal Division of this court on 4th February 1999. He had been convicted on 8th June 1990 and sentenced to 30 years' imprisonment. He had been in prison for something like ten years by the date of his successful appeal and release. The appeal was allowed not because any distinct case was mounted before the court as to the correctness or otherwise of the verdict on the factual merits. What had happened was that the applicant had been arrested in Zimbabwe on 6th February 1989 and, as I understand it, at once put on a plane to England, arrested on arrival at Gatwick and thence in due course put on trial.
2. The Court of Appeal Criminal Division held that this was in effect an abuse of the process and something by no means short of an outrageous default as regards the rule of law. I may take up the tale from the judgment given by Simon Brown LJ below:

"2. His [the applicant] deportation from Zimbabwe to the United Kingdom, in which the British authorities had been involved, represented a 'blatant and extremely serious failure to adhere to the rule of law' and involved a clear abuse of process. The claimant's conviction was accordingly to be regarded as 'unsafe' notwithstanding that there was 'no challenge to the propriety of the outcome of the trial itself.'"

3. As the learned Lord Justice notes the decision of the Criminal Division is reported at [1999] 2 Cr App R 143. It is convenient to continue the tale from Simon Brown LJ's judgment:

"3. Following the claimant's release, his solicitors applied on his behalf for compensation pursuant to section 133 of the Criminal Justice Act, 1988, or failing that, under the ex gratia scheme based on the Secretary of State's written statement of 29th November 1985. By letter dated 6th March 2000, finally confirmed on 15th March 2001, the Secretary of State refused to pay compensation on either basis.

4. Before the court now is the claimant's challenge to both limbs of that decision. In addition, he seeks a declaration that section 133 is incompatible with Article 6 of the European Convention on Human Rights."

4. The Lord Justice proceeds to set out parts of section 133. I need only cite subsections (1), (3) and (4):

"(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction... unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

(3) The question whether this is a right to compensation under this section shall be determined by the Secretary of State.

(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State."

5. Simon Brown LJ continues:

"6. Two issues arise out of these provisions: first, on the proper construction and application of section 133(1) was the quashing of this claimant's conviction because of the newly discovered fact as to the unlawfulness of his deportation to stand trial a quashing 'on the ground that [his] fact show[ed] beyond reasonable doubt that there has been a miscarriage of justice'? Secondly, is the requirement in 6(1) of the Convention that 'In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing... by an independent and impartial tribunal established by law' breached by the stipulation under section 133(3) that a claimant's right to compensation 'shall be determined by the Secretary of State'"?

7. A third issue arises out of the claim to an ex gratia payment. The 1985 statement indicates two broad categories of case in which the Secretary of State is prepared to pay ex gratia compensation to a person who has spent time in custody 'following a wrongful conviction or charge'. These are first, where this 'has resulted from serious default on the part of a member of a police force or of some other public authority'; secondly, where there are other exceptional circumstances, in particular the emergence at trial or on appeal within time of facts which 'completely exonerate the accused person'.

8. The Secretary of State accepted that this claimant's case falls within the first of those two categories but, having regard to its exceptional circumstances, in particular the fact that the claimant was 'properly convicted', he thought it right to depart from his usual policy and decided not to make an ex gratia payment. He concluded that to do so would be 'an affront to justice'. Was the Secretary of State entitled to depart from his policy in this way? That is the third issue which arises on this application."

6. The Secretary of State was represented before the Divisional Court as of course was the applicant. Thus there was a full hearing and Simon Brown LJ delivered with respect a full considered judgment. The thrust of the Secretary of State's case on the statute was very simple. It was to the effect that Parliament had only been concerned in enacting section 133 to provide compensation for persons who were, if I may use the expression, factually innocent. Simon Brown LJ in due course accepted that view of the Act (at paragraph 26 of the judgment):

"In short, a miscarriage of justice in the context of section 133 means, in my judgment, the wrongful conviction of an innocent accused."

7. Before us today Mr Pleming QC submits that at lowest it is arguable that the term "miscarriage of justice" may connote wider circumstances than the wrongful conviction of an innocent accused. He has pointed us to some of the passages in the judgment of the Court of Appeal Criminal Division in this appellant's case in which the language used by Rose LJ may be said to be revealing. I will take just take one of those passages. At 161(1)(g) the learned Lord Justice said this:

"Furthermore, in our judgment, for a conviction to be safe [that of course is the criteria by which appeals against conviction have to be decided under the Criminal Appeal Act] it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford Dictionary gives the legal meaning of 'unsafe' as 'likely to constitute a miscarriage of justice'.

In other passages it is plain that counsel for the Crown had used the term "miscarriage of justice" to connote or designate failures which travel beyond a conviction of an innocent person. Other material, says Mr Pleming, also assists his client's case. Simon Brown LJ himself referred to a dictum of Sir Thomas Bingham MR (as he then was) in R v Secretary of State for the Home Department ex parte Bateman and Howse Vol 7 ALR 174. In that case one applicant, Bateman, had been convicted of offences of conspiracy. His conviction was later quashed because certain statements should not have been admitted at his trial. It is not necessary to say more about the facts save that his claim for compensation under section 133 failed, though only because it seems the wrongful admission of new evidence was held not to be "a new or newly discovered fact". In the course of his judgment the Master of the Rolls said this at page 182:

"He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three-and-a-half years when he should not have been convicted or imprisoned at all... The man in the street would regard that as a miscarriage of justice and so would I."

8. In his full skeleton argument Mr Pleming refers also to learning from the United States of America in People v Wilson Vol 138 Pacific Reporter page 971 in which this was said at page 975:

"The phrase 'miscarriage of justice' does not simply mean that a guilty man has escaped, or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused in a given case to a fair trial, conducted substantially according to law, is at the same time the right of all inhabitants of the country to protection against procedure which might at some time illegally deprive them of life or liberty."

9. This was stated in the judgment of a District Court of Appeal in California, one of the Federal courts.
10. It seems to me that Mr Pleming may encounter great difficulty in persuading the full court that Simon Brown LJ was wrong in his construction of section 133. But despite my initial view of the case when I looked at it on paper on 25th March 2002, in my judgment the scope of the meaning of the expression "miscarriage of justice" in section 133 is at the very least arguable, and that suffices for Mr Pleming's purposes.
11. As regards the Secretary of State's ex gratia scheme, Mr Pleming has a number of criticisms of the Divisional Court's approach. Simon Brown LJ said this at paragraph 36 after reference had been made to the decision of the European Court of Human Rights in McCann Vol 21 EHRR 97:

"The wrongdoing in the present case, just as in McCann, was not all on one side. The applicant is not entitled to be treated for all the world as if he was entirely innocent. In my judgment the Secretary of State was entitled to refuse him ex gratia payment."

12. I do not propose to take time going into Mr Pleming's arguments in relation to the ex gratia scheme, given that for my part I would grant permission to appeal in relation to the statute. I merely say I think it would be wrong to shut out Mr Pleming from arguing these further points also. I would accordingly grant permission to appeal generally.
13. SIR MARTIN NOURSE: I agree. For reasons given by my Lord I am unable to say that this is a case in which an appeal would have no real prospect of success.
(Application granted; no order for costs).