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

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    38.  It is, of course, right that provisions of the ICCPR, in this case articles 14(2) and 14(6), must be read together as part and parcel of the scheme of the covenant: Maaoia v France (2002) 33 EHRR 42. The primary role of article 14(2) is to protect the defendant in the trial process. It has, however, also a role in protecting a defendant from assertions of guilt by the state or its agencies after his acquittal. All this is the obvious field of application of the presumption of innocence. It does not follow that it can influence the scope of the specific duty of the state to compensate victims of miscarriages of justice. On the contrary, the obvious and sensible construction is that article 14(6) is a lex specialis and that the general wording of article 14(2) does not warrant either an expansive or a restrictive reading of article 14(6). The latter provision creates an independent fundamental right governed by its own express limits. This is the view upheld by the international tribunal charged with the implementation of the ICCPR. In W J H v The Netherlands (No. 408/1990, 31 July 1992) the Human Rights Committee said in paragraph 6.2:

    "With respect to the author's allegation of a violation of the principle of presumption of innocence enshrined in article 14, paragraph 2, of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted."

    39.  Counsel for Mr Mullen relied, however, on decisions of the ECtHR in support of his submission to the contrary. The ECHR contains in article 6(2) a presumption of innocence provision in the same terms as article 14(2) of the ICCPR. By article 3 of Protocol No. 7 dated 22 November 1984 a fundamental right in respect of compensation for wrongful conviction was introduced. Article 3 reads as follows:

    "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 the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."

Subject to the addition of the underlined words to the text of article 14(6) of the ICCPR the wording of article 3 follows verbatim the language of article 14(6).

    40.  The United Kingdom has not so far signed or ratified Protocol 7. It is, however, relevant to an understanding of the European jurisprudence.

    41.  Sekanina v Austria (1993) 17 EHRR 221 is the first in a line of Austrian cases concerning the same compensation scheme. The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the relevant Austrian legislation. Section 2(1)(b) of the Compensation in Criminal Cases Act 1969 provides for a right to compensation—

    "where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in Austria . . . and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds, insofar as these grounds existed when he was arrested; …"

On the ground that suspicion remained concerning the applicant's involvement in his wife's death the Austrian authorities rejected the claim. The ECtHR found this to be a breach of article 6(2) on the basis that "the voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to reply on such suspicions once an acquittal has become final." The applicant's case did not involve a claim arising from article 3 of Protocol No. 7. Indeed the ECtHR was careful to emphasis that:

    "in addition, despite certain similarities, the situation in the present case is not comparable to that governed by Article 3 of Protocol No. 7, which applies solely to a person who has suffered punishment as a result of a conviction stemming from a miscarriage of justice."

Rushiti v Austria (2001) 33 EHRR 56 concerns the same Austrian provisions. The ECtHR noted at paragraph 27 that "Austrian legislation and practice link the two questions—the criminal responsibility of the accused and the right to compensation—to such a degree that the decisions on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former." Again the case concerned compensation for time spent on remand, prior to an acquittal by a jury. Article 3 of Protocol No. 7 was not relied upon. A violation of article 6(2) was found on the basis that "the general aim of the presumption of innocence . . . is to protect the accused against any judicial decision or other statements by State officials amounting to an assessment of the applicant's guilt without him having previously been proved guilty according to law." It was held that once an acquittal has become final, albeit an acquittal giving the accused the benefit of the doubt in accordance with article 6(2), the voicing of any suspicions of guilt, including those expressed in the reason for the acquittal, is incompatible with article 6(2). Lamanna v Austria, ECtHR judgment of 10 July 2001 and Weixelbraun v Austria (2003) 36 EHRR 45 both concern similar Austrian legislation and similar factual circumstances as Sekanina and Rushiti. On the basis of the latter decisions a breach of article 6(2) was found in both cases. The decisions are not relevant to the issue presently under consideration. The interaction between article 6(2) and article 3 of Protocol No. 7 was not under consideration. The reason was that in Austrian legislation there was a wider right to compensation than provided by article 3 of Protocol No. 7.

    42.  The applicant in Hammern v Norway, ECtHR judgment of 11 February 2003, was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether "it is shown to be probable that he did not perform the act that formed the basis for the charge" (Article 444 of the Code of Criminal Procedure, Norway). The application was refused. The applicant appealed to the ECtHR alleging that Norway was in breach of article 6(2) of the ECHR. The ECtHR held that there were no grounds for distinguishing Mr Hammern's case from those of Sekanina and Rushiti. Accordingly article 6(2) was applicable and there was a violation of it. Again, the court was not called on to consider the interaction between article 6(2) and article 3 of Protocol No. 7.

    43.  Much was made by Mr Sales of Leutscher v Netherlands (1996) 24 EHRR 181. In that case the ECtHR rejected an application under article 6(2) of the Convention and Dutch law on the ground that a suspicion still attached to the applicant despite his acquittal on appeal. Again, however, the link between article 6(2) and article 3 of Protocol No. 7 was not considered.

    44.  In my view the European jurisprudence cited throws no light on the question whether article 6(2) of the convention justifies an expansive interpretation of article 3 of Protocol No. 7, or the corresponding question in respect of article 14(2) and 14(6) of the ICCPR. In my view the principled analysis already set out must prevail. Article 14(6) of the ICCPR (and therefore section 133 of the 1988 Act), are in the category of lex specialis and the general provision for a presumption of innocence does not have any impact on it.

Textual analysis.

    45.  It is now possible to examine the interpretation of article 14(6) on its own terms. The starting point must, of course, be the language and structure of article 14(6) as enacted in United Kingdom law by section 133. It is to be noted that a case where a defendant was wrongly convicted (e.g. on the ground that the circumstantial evidence did not exclude the reasonable possibility of innocence) and then had his conviction quashed on an appeal lodged within ordinary time limits does not qualify for compensation. There was no intention to create a right to compensation in favour of victims in this category. All cases in this category are excluded whatever the grounds on which the appeal is allowed and whatever the cause of the wrongful conviction. It follows that there was no overarching purpose of compensating all who are wrongly convicted. In cases of a wrongful conviction quashed on an appeal out of time an indispensable pre-condition is that "(1) a new or newly discovered fact (2) shows conclusively that there has been a miscarriage of justice" (numbering added). If there is no new or newly discovered fact, but simply, for example, a recognition that an earlier dismissal of an appeal was wrong, the case falls outside article 14(6). That is so, however palpable the error in the first appellate decision may have been, and however severe the punishment that the victim suffered unjustly. These considerations demonstrate that the fundamental right under article 14(6) was unquestionably narrowly circumscribed.

    46.  The requirement that the new or newly discovered fact must show conclusively (or beyond reasonable doubt in the language of section 133) "that there has been a miscarriage of justice" is important. It filters out cases where it is only established that there may have been a wrongful conviction. Similarly excluded are cases where it is only probable that there has been a wrongful conviction. These two categories would include the vast majority of cases where an appeal is allowed out of time. In agreement with Simon Brown LJ in the Divisional Court (at 1864C-D) I regard these considerations as militating against the expansive interpretation of "miscarriage of justice" put forward on behalf of Mr Mullen. They also demonstrate the implausibility of the extensive interpretation of Schiemann LJ: it entirely erodes the effect of evidence showing "conclusively that there has been a miscarriage of justice". While accepting that in other contexts "a miscarriage of justice" is capable of bearing a narrower or wider meanings, the only relevant context points to a narrow interpretation, viz the case where innocence is demonstrated.

    47.  The French text of the ICCPR is also relevant. It reads as follows:

    "Lorsqu'une condamnation pénale définitive est ultérieurement annulée ou lorsque la grâce est accordée parce qu'un fait nouveau ou nouvellement révélé prouve qu'il s'est produit une erreur judiciaire, la personne qui a subi une peine en raison de cette condamnation sera indemnisée, conformément à la loi, à moins qu'il ne soit prouvé que la non-révélation en temps utile du fait inconnu lui est imputable en tout ou partie."

For "shows conclusively" the French text uses the word "prouve". For "a miscarriage of justice" the French text uses the word "une erreur judiciare". The latter is a technical expression indicating a miscarriage of justice in the sense of the conviction of the innocent. France acceded to the ICCPR in 1981. France has given effect to its international obligations under article 14(6) by article 626 of the Code de Procédure Pénale which provides as follows:

    "Sans préjudice des dispositions des deuxième et troisième alinéas de l'article L. 781-1 du code de l'organisation judiciaire, un condamné reconnu innocent en application du présent titre a droit à réparation intégrale du préjudice matériel et moral que lui a causé la condamnation. Toutefois, aucune réparation n'est due lorsque la personne a été condamnée pour des faits dont elle s'est librement et volontairement accusée ou laissé accuser à tort en vue de faire échapper l'auteur des faits aux poursuites."

From the words "reconnu innocent" in article 626, it is clear that in France the obligation in article 14(6) was narrowly construed by the legislature, viz as extending only to a miscarriage of justice in the sense of the conviction of an innocent person. If Schiemann LJ's extensive interpretation of "miscarriage of justice" is right, article 626 is too narrow to fulfil the international obligations of France under article 14(6). That I regard as quite implausible. This factor tends to reinforce the view at which I have arrived. In any event, the French dimension establishes state practice, which is relevant to treaty construction: article 31(3)(b) of the Vienna Convention on the Law of Treaties.

    48.  This is the view which I would expect to prevail if the ECtHR is called upon to interpret article 3 of Protocol No. 7. When that happens the ECtHR will have before it the Explanatory Report prepared by the 21 member Steering Committee for Human Rights appointed by the Council of Europe. It accompanied Protocol No 7 when it was published. The Committee of Ministers emphasised in September 1984 "the importance of the explanatory report for the purpose of interpreting the protocol". In paragraph 25 the Steering Committee observed about article 3:

    "The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge."

It is true that the Introduction to the Explanatory Report (para 4) states:

    "It was understood that participation of member states in this Protocol would in no way affect the interpretation or application of provisions containing obligations, among themselves, or between them and other States, under any other international instrument."

Such cautionary language is understandable. But the Explanatory Report has great persuasive value in the process of interpretation. For example, it is a basis on which states sign and ratify the Protocol. Inevitably, state practice will be based on the Explanatory Report, and in this way it becomes directly relevant to the interpretation of article 14(6): article 31(3)(b) of the Vienna Convention on the Law of Treaties. Bearing in mind that one is considering an autonomous concept, which must apply in the legal systems of many states, this interpretation is in no way surprising. It is likely to prevail in European jurisprudence. If this is right I regard it as implausible that one can assign to the much earlier 1966 text of the ICCPR a more expansive meaning.

    49.  I would add one further perspective. The Explanatory Report was available from 1984. It was available to the British authorities, draftsmen and Parliament before section 133 was enacted. It was relevant to the treaty background of section 133. The relevant comment in paragraph 25 would, however, have come as no surprise.

Travaux Préparatoires.

    50.  That brings me to the reliance of the Court of Appeal on the travaux préparatoires of the ICCPR in respect of article 14(6). The principle that a court may in appropriate cases have regard to travaux préparatoires in construing a treaty is clear. But it is also settled that such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention: Fothergill v Monarch Airlines [1981] AC 251, at 278A-B, per Lord Wilberforce. In Effort Shipping Company Limited v Linden Management SA [1998] AC 605, at 623E, I cited the judgment of Lord Wilberforce and added: "Only a bull's eye counts. Nothing less will do".

    51.  In the present case Schiemann LJ made the following observations about the travaux préparatoires (at 1002):

    "14. The Covenant was many years in preparation, drafting having started in 1947. For present purposes it suffices to pick the trail up at the 14th session of the Third Committee in 1959. Then, the words which now appear in article 14(6) were attacked by the United Kingdom as being objectionable on the ground that they allowed compensation to persons who were 'clearly guilty but whose conviction had been annulled for reasons of form of procedure": p 313.

    15. Other representatives accepted that this was implicit in the words but felt that this was not objectionable. An Argentinian amendment to suggest that 'the judicial recognition of the innocence of a convicted person shall confer on him the right to request an award of compensation' was rejected and the present wording was adopted: p 314.

    16. All that seems to indicate that all were agreed that the concept of miscarriage of justice was used in its wider rather than in its narrower sense. There is absolutely no suggestion that the parties understood that there was a requirement that innocence be proved.

    17. I would thus reject the conclusion of the Divisional Court that article 14(6) of the International Covenant on Civil and Political Rights uses the words 'miscarriage of justice' in such a narrow sense"

It is necessary to examine these conclusions with the aid of Bossuyt's "Guide to the 'travaux préparatoires' of the International Covenant on Civil and Political Rights," 1987, published by Martinus Nijhoff, as well as the materials produced by counsel. I start with general matters. What became article 14(6) was discussed at four sessions of the Human Rights Committee, viz in 1949 (the 5th session), 1950 (the 6th session), 1952 (the 8th session) and 1959 (the 14th session). At such an international conference it is common experience that many contradictory views are expressed. The positions of representatives on issues of substance and drafting changes are initially often widely divergent. And views change in the course of discussions and then eventually converge in the adoption of a final text. This is, however, rarely an orderly and harmonious process. Back stage deals are of the order of the day. In any event rejection of a proposal may be accounted for by a number of different reasons, e.g. disagreement on the substance of it, disagreement with the drafting technique, the view that the matter is already satisfactorily dealt with in the existing text, and so forth. Similarly, approval of a proposal may be inspired by different views as to what it means, or even the belief that pragmatically it should be adopted in order to move on, leaving arguments about its meaning to be settled later. An insight into the flavour of proceedings at an international conference is given in Fothergill, supra, by Lord Diplock (at 283F-G) as follows:

    "With some personal experience of international conferences of this kind, I should not attach any great significance to the fact that two delegates in withdrawing an amendment to article 26 which would have included in the article an express reference to partial loss as well as to damage said, without contradiction by any other delegates who happened to be present at that time, that they did so on the understanding that partial loss was included in the expression damage. Machiavellism is not extinct at international conferences."

It is, therefore, often extraordinarily difficult to infer the will of a composite body, such as an international conference, except from the language actually adopted. That is certainly the case here.

    52.  What I have described as a typical process of the evolution of a provision at an international conference neatly fits the present case. The discussions were often unstructured. Much of the discussions centred not on the issue of the desirability of a fundamental right to compensation but on the technical problems associated with finding a solution which could be accommodated across the spectrum of national systems. Divergent views were certainly expressed in favour of a wider and narrow right to compensation. The views were, however, not as polarised as at first appears. That is demonstrated by the fact that some countries supported views in both categories. A realistic reading of the discussions does not warrant a conclusion that there was a consensus, or even a majority view, in favour of any view other than the eventual view that article 14(6) should be adopted. Schiemann LJ relied in para. 15 of his judgment on what he described as an Argentinian amendment (it was in fact an Israeli/Afghan amendment), which was rejected. It is impossible to infer why the amendment was rejected. It may have been because some thought that article 14(6) already made clear that compensation would only be payable where innocence was established or because the wording of the amendment was regarded as unsatisfactory. Schiemann LJ's observed that "all were agreed that the concept of miscarriage of justice was used in its wider than in its narrower sense." He does not explain what the wider sense is: he appears to conclude that "miscarriage of justice" covers every case where wrongful conviction is quashed, e.g. even a case where a conviction is quashed on purely technical grounds, subject to retrial. In my view this interpretation of the travaux is certainly not borne out by a careful study of the discussions. If Schiemann LJ thought that there was a via media to be found in the travaux he does not identify and explain it. And counsel did not suggest it.

    53.  Schiemann LJ may have been led astray by the importance he attached to an observation by the U.K. delegate in the 1959 session which he mentioned. The views of the delegate as to the meaning of what became article 14(6) are irrelevant. And there is nothing to warrant the conclusion that there was a consensus, or a majority view, along the lines of the statement of the U.K. delegate. Mr Pleming made a similar point. He cited in full the statement of Mr Hoare, representing the United Kingdom, who during the earlier 1952 session said:

    "Under the existing paragraph persons would be entitled to compensation not only if it was found that they had been unjustly convicted, but even if the conviction was discovered to be invalid because of a technicality; and it was surely going too far to compensate a man, who might have been guilty in the first place, simply because the proceedings against him had not been properly conducted. It was because paragraph 3 [later article 14(6)] was a wholly inadequate statement of the circumstances in which compensation should be granted that he wished to see it deleted."

Mr Hoare's individual views are irrelevant. In any event, Mr Hoare's concerns were not directly addressed by delegates. Only very much later was the UK proposal to delete what became article 14(6) defeated in a vote. What the reasons of those who voted for the rejection of the proposal were we do not know. It is probable that there were different reasons but we shall never know for certain. It is impossible to infer any consensus or majority view for the rejection of Mr Hoare's statement.

    54.  I agree with Lord Bingham of Cornhill (paragraph 9(2)) that the travaux disclose no consensus of opinion on the meaning of the expression "a miscarriage of justice". The travaux are neutral and do not assist in any way on the proper construction of article 14(6).

    A workable interpretation

    55.  Schiemann LJ observed that our criminal law system "does not provide for proof of innocence". Sometimes compelling new evidence, e.g. a DNA sample, a forensic test result, fingerprints, a subsequent confession by a third party who was found in possession of the murder weapon, and so forth, may lead to the quashing of a conviction. The circumstances may justify the conclusion beyond reasonable doubt that the defendant had been innocent. Sometimes the Court of Appeal makes it clear (see Fergus (1994) 98 Cr App R 313, at 325) and sometimes it can be inferred from the circumstances. The interpretation which I have adopted is therefore perfectly workable. That is why France adopted it and why the Committee of Experts felt able to put it forward as the correct interpretation of article 3 of Protocol 7.

Conclusion on article 14(6).

    56.  I conclude that the autonomous meaning of the words "a miscarriage of justice" extends only to "clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent" as it is put in the Explanatory Report. This is the international meaning which Parliament adopted when it enacted section 133 of the 1988 Act.

    57.  Mr Mullen can certainly say that he was a victim of a failure of the trial process inasmuch as the circumstances in which he was deported from Zimbabwe were deliberately concealed from him before and at his trial. If it had been disclosed the trial would have been stopped. But Mr Mullen was not innocent of the charge. On the contrary, the conclusion is inescapable that he knowingly lent assistance to an active IRA unit. He is therefore not entitled to compensation under section 133.


    58.  In the alternative counsel for Mr Mullen submitted that the Home Secretary erred in his understanding and application of the ex gratia scheme, and that his decision not to award compensation was irrational.

    59.  The Home Secretary acknowledged in his decision letter that the case falls within the first limb of the 1985 statement. No question of a misconstruction of the policy arises.

    60.  The Home Secretary decided to depart from the policy. He did so in the light of the circumstances set out in the judgment of the Court of Appeal (Criminal Division). Was he entitled to depart from the policy? In the Divisional Court Simon Brown LJ observed (para 32):

    "There are, of course, cases in which substantive legitimate expectations have been built up where nowadays public authorities will be required to honour their statements of policy or intention. All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North and East Devon Heath Authority, Ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive. As, however, is there made plain, the question for the court is ultimately one of reasonableness and fairness. Would a departure from policy represent an abuse of power? That is a question to be asked in the circumstances of the particular case. It cannot in my judgment be suggested that the Secretary of State can never in any circumstances depart from his stated policy with regard to the payment of ex gratia compensation. He should, of course, give the person concerned an opportunity to say why in his particular case the policy should be applied rather than disapplied. But no problem of that sort arises here. The opportunity was given and taken. The Secretary of State was simply not persuaded."

I am in respectful agreement with these observations.

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