Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent)

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    19.  After a summing up by Hidden J, the jury retired to consider their verdict. Following their retirement the jury asked whether the claimant had been extradited to the United Kingdom. The intelligence services and police were aware that the claimant had been unlawfully deported. They did not tell prosecuting counsel how the presence of the claimant in the Central Criminal Court was to be explained. The judge's knowledge was restricted to the evidence before him. The judge, quite correctly, on the evidence led could not enlighten the jury. He simply reminded the jury of the evidence. In any event, after two days of deliberations, and by a 10:2 majority the jury convicted the claimant of causing conspiracy to cause explosions as alleged in the main count. The judge sentenced the claimant to thirty years' imprisonment.

    IV. THE APPELLATE PROCEEDINGS.

    20.  The claimant applied for leave to appeal against sentence but not conviction. On 4 November 1990 a single judge of the Court of Appeal (Criminal Division) refused the application. By letter dated 7 November 1990 the Criminal Appeal Office reminded him that, although out of time, he could still apply for leave to appeal against conviction. He did not do so. On 21 March 1991 the Court of Appeal (Criminal Division) refused a renewed application for leave to appeal against sentence.

    21.  Following the decision on 24 June 1993 of the House of Lords in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 the claimants' solicitors wrote on 27 January 1994 to the Crown Prosecution Service asking for disclosure of all material relating to how the claimant came to be brought into the jurisdiction. The CPS refused to consider the request on the ground that no leave had been obtained.

    22.  On 21 July 1997 the claimant lodged an application for an extension of time (approximately 7 years) in which to apply for leave to appeal against conviction. Initially he had raised an issue about the correctness of the judge's directions on the issue of duress. He did not pursue this aspect. His case was confined to the argument that he was brought to trial in England as a result of the illegal collusion of the British and Zimbabwean authorities. On 30 September 1997, leave was refused by a single judge of the Court of Appeal (Criminal Division). On 29 January 1998, the full Court granted an extension of time in which to appeal, and leave to appeal against conviction on the grounds relating solely to the circumstances of the claimant's deportation from Zimbabwe. In November 1998, the Crown sought, and was granted, an ex parte hearing before the Court of Appeal in order to seek directions concerning public interest immunity. The Court of Appeal ordered the disclosure of a summary of background information concerning the claimant's removal from Zimbabwe. This material was disclosed to the claimant's solicitors on 3 November 1998 and formed the basis of his subsequent appeal. On 13 and 14 January 1999, the claimant's appeal was heard by Rose LJ, Colman J and Kay J. The claimant pursued one argument only, namely that the events which led to him being brought before the court in 1990 were such as to render his prosecution an abuse of the process of the court, and thus unsafe.

V. THE JUDGMENT OF THE COURT OF APPEAL (CRIMINAL DIVISION).

    23.  Rose LJ gave the judgment of the Court of Appeal: [2000] QB 520. He described in detail the unlawful deportation of the claimant from Zimbabwe as a result of the collusion of British intelligence services and police with the Zimbabwean intelligence services and police. He stated (at 535-536a):

    "This court is firmly of the view that it must have been appreciated by the S.I.S., and probably by the police in Britain, that the vital element in the operation, the insulation of the defendant from any legal advice following his detention, was in breach of specific provisions of the law of Zimbabwe, or, at the least, was contrary to the defendant's entitlement as a matter of human rights. In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the defendant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of public international law.

    Finally, the events leading to the deportation as now revealed in the summary for disclosure were concealed from the defendant until last year.

    In all these circumstances, can it now be said that the conduct of the British authorities is causing the defendant to be deported in the manner in which he was, and in prosecuting him to conviction was, to use the words of Lord Steyn in R v Latif [1996] 1 WLR 104, 113, 'so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed?'

    This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates' Court Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached.

(My emphasis)

He concluded at (536e-g):

    "In these circumstances, the discretion has to be exercised on the basis that, but for the unlawful manner of his deportation, he would not have been in this country to be prosecuted when he was, and there was a real prospect that he would never have been brought to this country at all.

    Additionally, the need to encourage the voluntary disclosure before trial of material and information in the hands of the prosecution relevant to the defence is a further matter of public policy to which it is also necessary to attach great weight. Omission to make such disclosure clearly is a matter to be taken into account, on the exercise of this court's discretion following a conviction.

    In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.

    Inasmuch as that discretionary exercise now falls to be carried out by this court, we conclude that, by reason of this abuse of process, the prosecution and therefore the conviction of the defendant were unlawful."

(My emphasis)

It is therefore clear that the Court of Appeal relied on a combination of the abuse of executive power and the flawed trial process involving in the words of Rose LJ the concealment of the events leading to the deportation. The Court of Appeal held that the conviction was unlawful, and unsafe within the meaning of section 2 of the Criminal Appeal Act 1968 (as substituted by section 2 of the Criminal Appeal Act 1995). The claimant was released after almost ten years in custody.

VI. THE CLAIM FOR COMPENSATION.

    24.  On 25 February 1999 the solicitors for the claimant applied to the Secretary of State for compensation. On 6 March 2000 the Secretary of State rejected the application.

VII. COMPENSATION FOR MISCARRIAGES OF JUSTICE.

    25.  The procedure adopted in respect of ex gratia payments in the case of miscarriages of justice was described by the Home Secretary (Mr Roy Jenkins) in an written answer on 29 July 1976 (H.C. Deb., cols 328-330.) He stated:

    "A decision to make an ex gratia payment from public funds does not imply any admission of legal liability; it is not, indeed, based on considerations of liability for which there are appropriate remedies at civil law. The payment is offered in recognition of the hardship caused by a wrongful conviction or charge and notwithstanding that the circumstances may give no grounds for a claim for civil damages."

Under this policy the Secretary of State exercised a broad discretionary power.

    26.  Gradually a fundamental human right to compensation for miscarriages of justice evolved. The Universal Declaration of Human Rights (1948) made no provision for such a fundamental right. The European Convention on Human Rights and Fundamental Freedoms (1950) in its original form also did not contain such a provision. The American Convention on Human Rights, 1969, contained in article 10 a weak provision which left it to states to make suitable provision for compensation in accordance with law. The breakthrough came with the International Covenant on Civil and Political Rights.

    27.  On 19 December 1966 the ICCPR was adopted by the General Assembly of the United Nations and opened for signature at New York. On 20 May 1976 the United Kingdom ratified the ICCPR. On 20 August 1976—three weeks after Mr Jenkins' statement—the required number of ratifications was attained and the ICCPR entered into force. Article 14 contained two relevant provisions, namely:

    "2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

    . . .

    6. When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."

(My emphasis)

From 1976 to 1985 the United Kingdom purported to fulfil its international obligations under article 14(6) under the extant ex gratia scheme.

    28.  On 29 November 1985 the Home Secretary (Mr Douglas Hurd) formalised the position by a policy statement in the House of Commons. He stated (H.C. Deb., cols 691-692):

    "There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose convictions are quashed on appeal, or to those granted free pardons by the exercise of the royal prerogative of mercy. Persons who have grounds for an action for unlawful arrest or malicious prosecution have a remedy in the civil courts against the person or authority responsible. For many years, however, it has been the practice for the Home Secretary, in exceptional circumstances to authorise on application ex gratia payments from public funds to persons who have been detained in custody as a result of a wrongful conviction.

    In accordance with past practice, I have normally paid compensation on application to persons who have spent a period in custody and who receive a free pardon, or whose conviction is quashed by the Court of Appeal or the House of Lords following a reference of a case by me under section 17 of the Criminal Appeal Act 1968, or whose conviction is quashed by the Court of Appeal or the House of Lords following an appeal after the time normally allowed for such an appeal has lapsed. In future I shall be prepared to pay compensation to all such persons where this is required by our international obligations. The International Covenant on Civil and Political Rights [article 14.6] provides that:

    "When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is provided that the non-disclosure of the unknown fact in time is wholly or partly attributable to him".

    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.

    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. . . .

There was international pressure on the United Kingdom to put its obligations under article 14(6) on a statutory footing: see McGoldrick, The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights, 1991, p 412. The result was section 133 of the Criminal Justice Act 1988. It provides as follows:

    "(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 or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

    (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.

    (3) The question whether there 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.

    (4A). In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—

      (a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

      (b) the conduct of the investigation and prosecution of the offence; and

      (c) any other convictions of the person and any punishment resulting from them.

    (5) In this section ' reversed' shall be construed as referring to a conviction having been quashed—

    (a)  on an appeal out of time; or

    (b)  . . ."

(My emphasis)

It will be noted that the language closely follows article 14(6). But for the word "conclusively" in article 14(6) section 133 substituted the words "beyond reasonable doubt". As a matter of law this enactment replaced pro tanto the policy statement of Mr Hurd, viz to the extent that it set out article 14(6). Section 133 was amended in 1995 and 2000 in respects not material to this appeal.

    29.  On 17 June 1997 the Home Secretary (Mr Jack Straw) made a policy announcement in which he stated that he would continue to be bound by the terms of Mr Hurd's policy statement of 29 November 1985 (H.C. Deb., cols 691-692. This statement has, however, to be read subject to the qualification already mentioned, viz that section 133 of the 1988 Act has replaced the reference to article 14(6) in the earlier statement.

VIII. THE REASONS FOR THE DECISION.

    30.  By a letter dated 6 March 2000 the Home Office responded to the claimant's claim for compensation. The letter stated:

    "The Home Secretary has personally considered this case very carefully. In his view, there is no 'miscarriage of justice' for the purpose of section 133(1) where, as here, a defendant has conceded that he was 'properly convicted' of a very serious offence, notwithstanding that, as the Court of Appeal found, the circumstances in which he was brought to the UK were unlawful. Accordingly, the Home Secretary has decided that Mr Mullen is not eligible for compensation under the statutory scheme."

The letter added:

    "I turn now to the ex-gratia arrangements. In accordance with the terms of the 1985 statement, there are, broadly, two categories where the Home Secretary is prepared to pay ex-gratia compensation to a person who has spent time in custody following a wrongful conviction or charge. These are (1) where he is 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 of the statement); or (2) 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 (the second limb).

    The Home Secretary accepts that Mr Mullen's conviction resulted from a trial which, but for the involvement of the British authorities in securing his unlawful deportation from Zimbabwe, might not have taken place; and that this, in principle, brings him within the first limb of the 1985 statement. (He does not consider that Mr Mullen has been 'completely exonerated' or that there are any 'other exceptional circumstances' for the purpose of the second limb.) However, given the very unusual circumstances of this case, as noted above, in which the Court of Appeal quashed Mr Mullen's conviction for a very serious offence, even though he conceded that he had been 'properly convicted', the Home Secretary is minded to conclude that it would be right to depart from his usual policy, and not to pay ex gratia compensation in this case on the ground that it would be an affront to justice if someone who concedes that he was rightly convicted was compensated financially for an abuse of process.

    Before making a final decision on Mr Mullen's eligibility for compensation under the ex gratia scheme, however, the Home Secretary is prepared to consider any representations you may wish to make as to why there should be no departure from his stated policy in this case. I would be grateful if any such representations could be sent to this office by 6 April."

On 4 May 2000 the claimant's solicitors disputed the correctness of the Home Secretary's position. On 15 March 2001 the Home Office stated in the decision letter that the Home Secretary took the view that the claimant was not the victim of a miscarriage of justice within the meaning of section 133. The letter added that, having taken into account the letter of 4 May 2000, the Home Secretary remains of the view "that he should depart from his usual policy in this case and should not make an ex gratia payment of compensation to Mr Mullen."

IX. THE DECISION OF THE DIVISIONAL COURT.

    31.  The claimants' application for judicial review came before the Divisional Court (Simon Brown LJ and Scott Baker J): [2002] 1WLR 1857. The court held that under section 133 of the 1988 Act a miscarriage of justice was the wrongful conviction of an innocent defendant. The claimant did not come within this category. The court further held that the Secretary of State was entitled to depart from his stated policy with regard to the payment of ex gratia compensation. His decision was neither unfair nor irrational. The application for judicial review was dismissed.

X. THE DECISION OF THE COURT OF APPEAL.

    32.  The claimant appealed to the Court of Appeal: [2003] 2 WLR 835. Schiemann LJ (with whom Rix LJ and Pumfrey J agreed) gave the only reasoned judgment. He helpfully summarised his conclusions as follows (847B-E):

    "42 In summary therefore I consider that:

      "(a) the International Covenant on Civil and Political Rights provides for compensation in a case like the present as the travaux préparatories indicate;

      (b) even if that is wrong, the ordinary use of English indicates that the phrase 'miscarriage of justice' is wide enough to embrace circumstances such as the present;

      (c) there is nothing to prevent Parliament when giving effect to the United Kingdom's international obligations from giving the citizen more rights than those obligations require that he be given;

      (d) in a case where this court has quashed a conviction the presumption of innocence requires that Acts of Parliament are to be interpreted on the basis that it is not intended that the state should proceed on the basis that a wrongly convicted man is guilty. Had Parliament intended that compensation should only be available to those who could prove themselves innocent it would have said so clearly. In the present case there is not even such an implication.

    43. I therefore respectfully differ from the Divisional Court. Our criminal law system, like that of most other states, does not provide for proof of innocence. I do not consider that Parliament intended proof of innocence to be a prerequisite of entitlement to compensation.

    44. I would therefore allow the appeal on the basis that Mr Mullen is entitled to compensation under section 133. In those circumstances it is unnecessary to consider his arguments on discretionary compensation."

XI. THE ISSUES.

    33.  The Agreed Statement of Facts and Issues defines the issues as follows:

    (a)  the true meaning of the phrase "miscarriage of justice" in section 133(1) of the 1988 Act;

    (b)  whether an unsafe conviction resulting from an abuse of process preceding an otherwise fair and properly conducted trial amounts to a "miscarriage of justice" within the meaning of section 133(1) of the 1988 Act;

    (c)  whether it was irrational, or otherwise unlawful, of the Secretary of State to depart from his own ex gratia policy in this case.

XII. THE CLAIM UNDER SECTION 133.

The principal contentions.

    34.  The contentions of the parties can be stated shortly. For the Home Secretary Mr Sales submitted that the concept of "a miscarriage of justice" in section 133 extends only to cases where a person who was convicted of an offence is later shown beyond reasonable doubt, by virtue of some new or newly discovered fact, to have been innocent of the offence of which he was convicted. For Mr Mullen Mr Pleming submitted that in all cases where a conviction has been quashed as unsafe, the presumption of innocence requires the defendant to be treated as innocent and therefore it follows that for the purposes of section 133 he was the victim of a miscarriage of justice.

Two preliminary points.

    35.  It is now necessary to examine the central issue in some detail. Two preliminary points must be explained. Firstly, it is clear that in enacting section 133 Parliament intended to give effect to the international obligations of the United Kingdom under the ICCPR in domestic law. International pressure prompted the legislation. The language of section 133 closely tracks the provisions of article 14(6). The observation of Schiemann LJ in the Court of Appeal that there is nothing to prevent Parliament when giving effect to the United Kingdom's international obligations from giving the citizen more rights than those obligations require that he be given is, of course, correct. But it is not in point in the present case. There is no foundation whatever in the language of article 14(6) and section 133, or by reference to any relevant external aids to construction, for the suggestion that Parliament intended to use the words "miscarriage of justice" in a wider sense than it bears in article 14(6). Parliament intended to give effect, by using the words "miscarriage of justice" in section 133, to the international obligations under article 14(6) and no more. That is hardly surprising: there was in the United Kingdom in place an ex gratia scheme, duly announced in Parliament, which was apt to cover cases outside the scope of section 133.

    36.  The second preliminary point is common ground. The concept "miscarriage of justice" in article 14(6) is an autonomous Convention concept. It must be construed "unconstrained by technical principles of English law, or by English legal precedent, but on broad principles of general acceptation": James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Limited [1978] AC 141, 152, per Lord Wilberforce. The court "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning": R v Home Secretary ex p Adan [2001] 2 AC 477, at 517B. In my view Schiemann LJ erred in relying on what he described as "the ordinary use of English" and in saying that the "phrase "miscarriage of justice" is wide enough to embrace circumstances such as the present," i.e. where the guilt of the claimant is not in doubt but he should not have been unlawfully deported to stand trial in England. The Court of Appeal ought to have concentrated on the autonomous meaning of the concept in article 14(6). For the same reason the observations of Sir John May in his Report on the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich (H.C. 449, 1994) paras 21.3-21.4 are concerned with the use of the concept in a different domestic context and certainly do not merit the weight counsel for Mr Mullen put on them in the relevant international context. On a broader basis I would add that generally in law the enquiry into what words mean is of no interest. The response of a court to such a generalised and unhelpful question must always be: "In what particular context?" And here the only relevant context is the international meaning of the words in article 14(6) upon which section 133 is based.

The impact of article 14(2) on article 14(6).

    37.  The Court of Appeal found support for its conclusion in the presumption of innocence provided for in article 14(2). It led the Court of Appeal to conclude in effect that a consideration of article 14(2) by itself rules out an interpretation of section 14(6) giving a right to compensation to only those who are innocent of the offence. Counsel for Mr Mullen made this a main plank of his argument before the House. He argued in effect that article 14(2) necessarily impresses a meaning on article 14(6) which recognises that anybody whose conviction was quashed as being "unsafe" (a technical concept under section 2(1)(a) of the Criminal Appeal Act 1968) was a victim of a miscarriage of justice under article 14(6) and therefore under section 133. Before I consider the arguments on article 14(6) and section 133 it will be convenient to examine this point.

 
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