Judgments - In re McFarland (AP) (Appellant) Northern Ireland

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    21.  I agree with Lord Bingham of Cornhill that Mr McFarland cannot bring his case within article 14(6) of the International Covenant on Civil and Political Rights (1966) or section 133 of the Criminal Justice Act 1988.

    22.  The remaining question is whether Mr McFarland was entitled to compensation under the policy statement announced by Mr Hurd on 29 November 1985, which has already been cited in full by Lord Bingham. The two limbs on which Mr McFarland relies provide as follows:

    "I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.

    [The first limb]

    There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts may emerge at trial, or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought."

(The second limb]

The question is whether Mr McFarland can bring himself within the scope of the relatively narrow first limb, or, very much as a fallback position, within the more onerous provisions of the more general second limb.

    23.  I turn to the question how under the first limb one should approach the question whether the court is "a public authority."

    24.  Lord Bingham has observed that the Home Secretaries responsible for policy statements did not intend to include a court within the meaning of the concept of a "public authority": para 15. That I understand to be a reference to the personal views of the Home Secretaries. In my view, however, in respect of the many kinds of "soft laws" with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law. And on such a question of law it necessarily follows that the court does not defer to the Minister: the court is bound to decide such a question for itself, paying, of course, close attention to the reasons advanced for the competing interpretations. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular Minister may have had in mind.

    25.  That brings me to another aspect of the reasoning in this case. Lord Bingham emphasises the fact that the statements of Mr Jenkins and Mr Hurd were made many years ago, i.e. in 1976 and in 1985. This suggests that we must look at the point of construction through the lens of an earlier era. This proposition too creates a difficulty. It is now settled that legislation, primary or secondary, must be accorded an always speaking construction unless the language and structure of statute reveals an intention to impress on the statute a historic meaning. Exceptions to the general principle are a rarity. If I am right in holding that the interpretation of a policy statement is a question of law, which must be approached objectively, it would be strange to regard ministerial statements as susceptible of only a historical interpretation. One is surely entitled to expect greater rather than less flexibility in interpreting ministerial statements. In my view the correct approach is that stated by Cross, Statutory Interpretation, 3rd ed (1995), at 51-52, namely that the legislation (here read policy statement) "should be interpreted in the light of its place within the system of legal norms currently in force" (author's emphasis).

    26.  The phrase "a public authority" in the policy statement is not a term of art. It must be construed in a purposive way, taking particular account of the context. What does that involve in the present case?

    27.  One must surely in the first place concentrate on the role of a court. In constitutional law as well as international law the courts are one of the three departments of state: Köbler v Republik Ostereich, judgment of ECJ, 2003, para 32. Institutionally a court is a public authority. The functions of a judge, magistrate or jury are of a public character. They exercise authority on behalf of the Monarch in deciding cases between the state and individuals, between individuals, and so forth. Institutionally and functionally a judge, magistrate and jury are therefore the paradigm of a public authority: see the illuminating discussion in Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003-2004, HL paper 39.

    28.  In the modern world it is strange to say, in the context of the ex gratia scheme, that the police and the Crown Prosecution Service are public authorities but that a judge, magistrate and a jury are not public authorities. How can such a curious and unjust interpretation be right? Imagine a situation where a magistrate was bribed or biased in the sense of having a personal motive to find against a party. According to the holding of the majority such a case falls outside the scope of the words "a public authority". It is true, as Lord Bingham has mentioned, that this view has been upheld in a series of decisions, starting with an unmotivated obiter dictum in R v Secretary of State for the Home Department, ex p Harrison [1988] 3 All ER 86, at 89 and 92. The distinctive feature of the subsequent decisions is emphasis rather than analysis. The decisions are conclusionary in nature, derivative from one another, and do not address the questions which arise let alone provide answers. The decisions are not binding on the House. Moreover, one is entitled to ask what citizens will make of the idea that victims of wrongful convictions may be compensated for a serious default of the police and prosecution, but in respect of very serious misconduct by a judge, magistrate or jury the policy statement excludes them. Surely, this creates the risk of an impression in the public mind of judges protecting their own kind. There must be something awry in the legal logic which leads to such a result.

    29.  In my opinion the sensible and practical construction is to hold that a judge, magistrate and jury are within the meaning of "a public authority" in the policy statement. On the other hand, it would be acceptable to filter out minor errors by making clear that a very high threshold must be passed for something to constitute "serious default" on the part of a judge, magistrate or jury. Perhaps it must be something in the nature of misconduct.

    30.  Given that a contrary view has prevailed on the point under consideration, it may be that the extant policy statement will now require explicit revision to cover serious default of a judge, magistrate or jury.

    31.  That brings me to the question whether there was "serious default" on the part of the magistrate. Lord Bingham has summarised the factual position as follows:

    "There were before the court affidavits sworn by Mr McFarland, the magistrate and counsel who had represented Mr McFarland in the magistrates' court, which to some extent conflicted. But it was plain that there had been a private meeting in the magistrate's chambers, that the magistrate had commented on the strength of the complainant's evidence, that the magistrate had mentioned the possible need to refer the case to the Crown Court for sentence, where a sentence of eighteen months' imprisonment might well be imposed, and that defence counsel had passed on the gist of the magistrate's observations to Mr McFarland."

For my part this was outrageous conduct on the part of the magistrate reminiscent of judicial habits of a bygone era. It deserved severe censure. However, as Lord Bingham has observed, if the judgment contained criticism of the magistrate, it was of the mildest kind: [2000] NI 403. I am troubled by the position that has arisen. Allegiance to the discipline of the law requires one to follow the indisputable evidence where it leads.

    32.  Given the terms of the judgment, on which the Secretary of State was entitled to base his decision about an award of compensation, I would nevertheless with considerable hesitation not press to a dissent my view that there was "a serious default" by the magistrate.

    33.  I would accept that the decision of the Secretary of State that Mr McFarland does not qualify for compensation under the second limb was open to him in the circumstances of the case.

    34.  I would also dismiss the appeal.


My Lords,

    35.  Persons who have been imprisoned following a conviction which later has been quashed have two possible routes for seeking compensation. One route is to claim compensation under section 133(1) of the Criminal Justice Act 1988. The other is to apply for an ex gratia payment from the Home Secretary. The difference is obvious. If the case can be brought within section 133(1), the claimant has a statutory right to compensation. If it cannot be brought within the section, the claimant has no right to compensation but merely the hope, and sometimes the expectation, that he will be the recipient of an ex gratia payment.

    36.  The facts of the present case have been set out by my noble and learned friend Lord Bingham of Cornhill. As my noble and learned friend has explained in paragraph 9 of his opinion, Mr McFarland cannot bring his case within section 133(1). If he is to receive compensation it must be an ex gratia payment.

    37.  In a statement to the House of Commons made on 29 November 1985 the then Home Secretary, Mr Douglas Hurd, explained the circumstances in which he would be prepared in the future to make ex gratia payments of compensation to persons who had spent time in custody before their convictions had been quashed. This statement has been overtaken in part by the enactment of section 133(1) of the 1988 Act but, apart from that, has not been modified or added to and has been the basis on which successive subsequent Home Secretaries have made, or refused to make, ex gratia payments.

    38.  Mr McFarland applied to the Secretary of State for compensation but his request was refused. He brought an application for judicial review challenging the refusal. The relief sought included a declaration that

    "the Applicant is entitled to have a decision by the Secretary of State in accordance with the law on his request for compensation arising out of his imprisonment on a wrongful conviction."

and an order that

    "the matter be remitted to the Secretary of State to be considered in accordance with the ruling of this Court."

    39.  In the courts below and in this House the Home Secretary's statement of 29 November 1985 has been subjected to a process of construction and analysis with a view to ascertaining whether the facts of Mr McFarland's case bring him within one or other of the categories of case in which, according to the statement, the Home Secretary would be prepared to make an ex gratia payment. Having read the opinion of Lord Bingham I am in full agreement with the reasons he has given for concluding that Mr McFarland's case falls within none of those categories. I agree, in particular, that section 133(1) has subsumed the category of cases that would previously have fallen within Article 14(6) of the International Covenant on Civil and Political Rights. I agree also that a magistrate would not normally be regarded as "a member of a police force or of some other public authority". But this process of construction and analysis of the Home Secretary's statement that your Lordships, and the courts below, have engaged in seems to me sufficiently odd to warrant a few supplementary remarks.

    40.  In making ex gratia payments the Home Secretary is disbursing public money. But he is not doing so pursuant to any statutory duty or statutory power. There is no statute to be construed. He is exercising a Crown prerogative. He is accountable for what he does with public money to Parliament and, in particular, to the House of Commons. The making of ex gratia payments is lawful if, but not unless, there is Parliamentary authority for the disbursements (see Auckland Harbour Board v The King [1924] AC 318 per Viscount Haldane at pp 326/7). Your Lordships have, not surprisingly, not been addressed on this aspect of the ex gratia scheme but presumably the ex gratia payments in wrongful conviction cases are authorised by some provision in the annual Appropriation Act.

    41.  So, on the footing that the requisite Parliamentary authority exists, the ex gratia payments are lawfully made under the prerogative power of the Crown. It is now well established that the Crown prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review (see R v CICB Ex parte Lain [1967] 2 QB 864 and R v CICB Ex parte P [1995] 1 WLR 845). But the scope of the courts' powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one.

    42.  In the present case Mr McFarland's complaints about the refusal of his compensation claim seem to me to be a distance away from what would be necessary to impugn the refusal. If the Secretary of State is not willing, post the enactment of section 133(1), to consider making payments pursuant to Article 14(6) of the ICCPR, there is nothing irrational about that. If the Secretary of State is not prepared to make ex gratia payments to compensate those who have suffered imprisonment on account of some serious error by a judge or magistrate, there is nothing irrational in that. Nor would there be anything irrational in a policy that did allow ex gratia payments in such cases, a policy that many, or most, might prefer. The policy, bar irrationality, is for the Secretary of State.

    43.  Accordingly for these reasons, as well as those given by Lord Bingham, I would dismiss this appeal.


My Lords,

    44.  I have had the privilege of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons he gives, I too would dismiss this appeal.


My Lords,


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