England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(LORD JUSTICE LEGGATT
MR. JUSTICE McCULLOUGH)

		Royal Courts of Justice, Strand, London, WC2A 2LL.
		17th May 1994.

1. THE MASTER OF THE ROLLS: There are two appeals before the court against a decision of the Divisional Court, Leggatt LJ and McCullough J, given on 5th May 1993, when the Divisional Court refused to make orders of judicial review against the Home Secretary. The applications related to the statutory procedure for granting compensation to victims of miscarriages of justice and to the Home Secretary's extra-statutory power to grant compensation ex gratia in cases not covered by the statute.
2. The first of the two appellants is Katrina Rosemary Howse who seeks judicial review to quash a decision of the Home Secretary given to her in a letter dated 8th October 1991. The effect of that decision was not to award her compensation under section 133 of the Criminal Justice Act 1988 and not to make her an ex gratia award.
3. The brief facts surrounding Miss Howse's application are these. Since 1982, or thereabouts, she had been a member of the Greenham Common peace camp. In 1985 the Greenham Common Byelaws were made by the Secretary of State for Defence under section 14(1) of the Military Lands Act 1892. Thereafter Miss Howse was convicted on several occasions of trespass in breach of the regulations. On some of these occasions she was fined and on some of them she was sent to prison for varying periods. The evidence shows that altogether she served some 14 days in prison. In July 1990 a House of Lords' decision declared these Byelaws invalid.
4. That decision is reported as Director of Public Prosecutions v Hutchinson [1990] 2 AC 783. Reliance is particularly placed on a passage in the speech of Lord Bridge of Harwich at 813 C where he said:

"The draftsman of the byelaws cannot possibly have been in ignorance of the terms and effect of the proviso to section 14(1) of the Act of 1892 and the theory of an inadvertent omission appears the less plausible since five sets of byelaws in relation to common lands used for military purposes which were made by the Secretary of State for Defence under section 14 of the Act of 1892 in the years 1976 to 1980 all contain careful express provisions to safeguard rights of common."

5. The ground upon which these Byelaws were held be ultra vires was that they did not contain provisions to safeguard rights of common. The Byelaws having been declared invalid it followed as a matter of course that the convictions recorded against Miss Howse were invalidated. She accordingly asked the Home Secretary to quash the convictions. She was advised to apply for leave to appeal out of time, which she did, and her convictions were duly quashed in the Reading Crown Court in June 1991. She then wrote to the Home Office seeking compensation for the imprisonment she had undergone which was, by this series of events, shown to have been wrongful. The Home Office refused her request for compensation in a letter to which I should refer. After an introductory first paragraph the letter said:

"Your claim for compensation has now been considered under the terms of section 133 of the Criminal Justice Act 1988 and in the light of the then Home Secretary's statement of 2 9 November 1985. I enclose copies of both for your information.

I am afraid that after careful consideration of the circumstances of your case, it does not appear that the provisions of section 133 are met. In particular it was not a 'new or newly discovered fact' which led to the reversal of your convictions. Yours is therefore not a case which qualifies for compensation under the statutory scheme.

We have also considered whether your claim might be met by an ex gratia award. But we are not satisfied that your convictions resulted from any serious default by a public authority; and I am afraid that nothing else has emerged from our consideration of your case to justify the Home Secretary in authorising an exceptional payment from public funds."

6. Following that letter, Miss Howse applied for leave to move for judicial review which was initially refused by Paul Kennedy J, but thereafter granted on oral argument by Schiemann J. The matter accordingly came before the Divisional Court and an order of judicial review was refused on 5th May, as I have already recorded. Miss Howse promptly gave notice of appeal against that order on 2 8th May.
7. The second appellant before the court is Andrew John Bateman who seeks judicial review of a decision of the Home Secretary, given to his solicitors on 25th February 1992, also rejecting a claim for compensation for wrongful imprisonment. The facts in his case are in brief these. On 14th September 1987, following a trial at Isleworth Crown Court, Mr. Bateman was convicted of various offences of conspiracy to handle stolen building society cheques and conspiracy to obtain property by use of those cheques. For those offences he was sentenced to six years' imprisonment.
8. He appealed against his conviction, but that appeal was dismissed in February 1989. He prevailed upon the Home Secretary to refer his case to the Court of Appeal (Criminal Division) in April 1990 under section 17 of the Criminal Appeal Act 1968. When his appeal came on for hearing on the second occasion, on 3rd October 1991, his appeal was allowed. The effect, therefore, is that his convictions were quashed. I think that he would wish me to say that the court did not apply the proviso to section 2(1) of the Criminal Appeal Act 1968.
9. Following the quashing of his convictions, Mr. Bateman applied for compensation and in his case also the request was refused. The letter giving this decision to his solicitors recorded that the claim had been considered by the Home Office, and made reference to the terms of section 133 of the Criminal Justice Act 1988, to which I shall shortly come. The letter continued:

"Mr. Bateman's claim has received careful consideration in the light of these provisions but I am afraid to say that the terms of section 133 do not appear to have been met in this case. The Court of Appeal quashed Mr. Bateman's conviction because certain statements had been wrongly admitted in evidence at the trial and the Court of Appeal's previous ruling on this point (upon the original appeal) had been incorrect. The discovery of a judicial error does not amount to the emergence of a 'new or newly discovered fact' for the purposes of section 133 of the 1988 Act.

The November 1985 statement provides that, where a claim does not meet those provisions which have since been codified in section 133 of the 1988 Act, the Home Secretary remains prepared to make an ex gratia payment of compensation to a person who has spent a period in custody following a wrongful conviction or charge, where he is satisfied that it has resulted from serious default on the part of the police or some other public authority, or where there may be exceptional circumstances such as the emergence of facts which completely exonerate the accused person. I should explain that a trial judge is not a public authority for the purpose of the statement. Mr. Bateman's case has been carefully examined but there is no evidence of serious public default nor are there other exceptional circumstances that would meet the criteria for the making of an ex gratia payment."

10. In May 19 92 Mr. Bateman obtained leave to move for judicial review. The basis of his claim was essentially this: that at the trial leading to his conviction statements had been read which had been given by witnesses resident in New Zealand who had accordingly been subject to no cross-examination. This was, Mr. Bateman contended, the evidence upon which his conviction had been founded, since the evidence given by the witnesses resident in the United Kingdom did not incriminate him. He had, he said, always wanted the New Zealand witnesses to be called and cross-examined, but they had not been. The failure to call these witnesses, and the admission of their evidence without the witnesses being called, was the basis upon which his appeal was mounted unsuccessfully on the first occasion, but also the basis upon which he had succeeded on the second occasion. He accordingly contended that he had suffered a grave injustice as the result of spending three-and-a-half years in prison on the strength of a conviction which should never have been recorded. In his case, like that of Miss Howse, his application for judicial review came before the Divisional Court on 5th May 1993 and an order for judicial review was refused. He also gave notice of appeal against the refusal.
11. It is convenient, I think, at this point to refer to the material to which reference has been made in the letters from which I have quoted and also to the judgment of the Divisional Court. Chronologically, the first matter to be referred to is Article 14(6) of the International Covenant on Civil and Political Rights, an international treaty made in 1966 and ratified by the United Kingdom. Article 14(6) provides:

"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."

12. That language was reproduced as Article 3 of the Seventh Protocol to the European Convention on Human Right in 1984, but that protocol has never been ratified by the United Kingdom.
13. On November 1985, before there had been any statutory intervention, the Home Secretary (at the time Mr. Douglas Hurd) gave a written answer in the House of Commons. He was asked to make a statement with regard to the payment of compensation to persons who had been wrongfully convicted of criminal offences. His answer, so far as relevant for present purposes, was as follows.

"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 the 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...."

14. The Home Secretary then cites from Article 14(6) of the covenant to which I have already referred, although the punctuation in the Hansard version of his written answer differs slightly, but possibly significantly, from the print of Article 14.6 supplied to this court.
15. The Home Secretary then continued:

"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 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."

16. Lastly, I should make reference to section 133 of the Criminal Justice Act 1988 which was enacted to give effect to the United Kingdom's treaty obligation undertaken on its ratification of the International Covenant on Civil and Political Rights. I should quote first from subsection (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."

17. Subsection (4) provides for the assessment of compensation in an appropriate case by an assessor appointed by the Secretary of State. Schedule 12 sets out detailed provisions for the appointment and functioning of assessors. Subsection (5) is significant because it provides:

"In this section 'reversed' shall be construed as referring to a conviction having been quashed -

(a) on an appeal out of time; or

(b) on a reference -

(i) under section 17 of the Criminal Appeal Act 1968."

It is unnecessary to cite the rest of that section. It is also, I think, unnecessary to refer in detail to the provisions of Schedule 12.

18. The main argument in the Divisional Court turned on the construction of section 133(1). The argument was that the subsection was to be read as if the words "on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice" apply only where a person has been pardoned and not where his conviction has been reversed. In the case of Miss Howse her convictions had, of course, been reversed on an appeal out of time. In the case of Mr. Bateman his convictions had been reversed on a reference under section 17 of the 1968 Act. Accordingly if this construction was correct, neither of them were required to show any new or newly discovered fact. The Divisional Court rejected this construction for five main reasons which are set out in the judgment of Leggatt LJ at page 13 A of the transcript, concluding at page 14 B. For my part I have to say that I find those reasons entirely convincing and it may be significant that Mr. Kelly, who appears as counsel on behalf of Miss Howse, has abandoned reliance upon that argument.
19. Mr. Bateman, however, continues, as I understand him, to rely on that argument and I should, therefore, indicate briefly why I am, myself, unable to accept it. It seems to me that that construction is contrary to the natural reading of the words. It also seems to me to be clear from section 133 and Schedule 12 that a miscarriage of justice is treated as having occurred where a person's conviction is reversed in the circumstances specified as well as when he has been pardoned. So the suggested reading in my judgment makes very little sense. I cannot, furthermore, see any reason at all why a recipient of a pardon should have to fulfil conditions more onerous than those imposed upon a person whose conviction has been reversed. I accordingly agree with the Divisional Court in rejecting this argument.
20. Mr. Bateman, who has appeared in this court on his own behalf, although with the assistance of his solicitor, has also advanced a variant of that argument which has run along these lines. The Court of Appeal (Criminal Division) must, he says, in October 1991, have considered that his conviction amounted to a miscarriage of justice. If it had not thought that, it would have applied the proviso to section 2(1) of the Criminal Appeal Act 1968. Therefore, it follows, he says, that he is a victim of a miscarriage of justice and from that it follows that he is entitled to compensation. To deny him compensation is, he argues, to undermine his acquittal and the presumption of innocence which flows from the fact that his convictions have been quashed. I am, for my part, unable to accept that argument, although I hasten to assure Mr. Bateman that in doing so I have no intention whatever to undermine the effect of the quashing of his convictions. 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 on the second decision of the Court of Appeal (Criminal Division). The man in the street would regard that as a miscarriage of justice and so would I. But that is not in my judgment the question. The question is whether the miscarriage of justice from which Mr. Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation. That, therefore, is the question to which I now turn.
21. Both Miss Howse and Mr. Bateman argue that there was, in each of their cases, a new or newly discovered fact. Miss Howse points to the overruling of the regulations as ultra vires as the new or newly discovered fact in her case. Mr. Bateman points to the ruling that the evidence should not have been admitted. In each case the ground of the reversal was not in my judgment the discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along. In my judgment Leggatt LJ was right to say, as he did at page 14 E of the transcript:

"The suggestion that the reversal of a conviction on the ground that evidence was wrongly admitted, or on the ground that the byelaw under which the charge was brought was ultra vires, constituted a new or newly discovered fact is simply wrong in law. There was no new fact; there was merely a decision on a point of law, in the one case in the Court of Appeal following a reference by the Home Secretary, and, in the other by the House of Lords."

I agree.

22. The next point raised in argument turns on the Secretary of State's written answer in the House of Commons concerning his willingness in certain circumstances to make ex gratia payments. In reliance on that statement, it is said that there was here serious default on the part of a member of a police force or of some other public authority. In Miss Howse's case it is said to have been a serious default by the Secretary of State for Defence, or the parliamentary draftsman who drafted the regulations, in making or drafting a Byelaw which he knew, or must have known, to be ultra vires. Mr. Kelly places reliance on the extract that I have already read from the speech of Lord Bridge and invites the court to draw the inference that there must have been malice or bad faith, either of which he says would amount to serious default. Mr. Bateman points to serious default on the part of the Judge who wrongly admitted the evidence in his case in the first instance or on the part of the Court of Appeal (Criminal Division) who dismissed his appeal on the first occasion. The Secretary of State does not accept that this is a matter that the court can enquire into, not, I think, because the court lacks jurisdiction, but because the issue is simply not justiciable. It is, in my judgment, unnecessary to rule on that contention in this case. On any showing, all the court could properly do, if it could do anything, would be to enquire whether the Secretary of State was obviously wrong in concluding that the period in custody did not result from serious default on the part of a member of a police force or of some other public authority. It is plain that in neither case did it result from serious default on the part of a member of a police force. It was in my judgment, open to the Secretary of State to conclude in both cases that the period in custody, or the conviction, did not result from serious default on the part of a member of some other public authority or on the part of some other public authority. I say no more than that it was open to him so to conclude. It is not a question whether I, as a member of this court, agree with him or not. The question, at best for the appellants, is simply whether one can say that this conclusion was not open to him. I cannot, for my part, say that in either of these two cases.
23. The last point, also arising on the Secretary of State's written answer in the House of Commons, is that there were in these two cases exceptional circumstances and that it was not open to the Secretary of State to hold that there were not. It is argued that having made his statement in the House, and so given a basis for legitimate expectations that he would act in accordance with that policy, it is not now open to him to resile from that policy without announcing his intention to do so. That, again, is an argument that in my judgment cannot succeed. The Secretary of State has acknowledged that there may be, and that was the language that he used, exceptional circumstances that justify payment. He gave one example which has no bearing at all on the present cases. He gave no indication that he was willing to contemplate payment in cases within the general ambit of section 133, or Article 14.6 of the covenant by not complying with the precise terms of those provisions. It was essentially a question for the Secretary of State as to what he regarded as an exceptional case. It is difficult to imagine circumstances in which this court could properly interfere with a judgment by him that a case was not so exceptional as to justify special treatment. Be that as it may, I am satisfied that neither of these cases will justify the court in so holding. It follows that I would dismiss these appeals.
24. LORD JUSTICE FARQUHARSON: I completely agree with the judgment that has just been delivered and there is really nothing that I can usefully add to it.
25. LORD JUSTICE SIMON BROWN: I agree also.

Order: Appeals dismissed. No order as to costs. Order for Legal Aid Taxation of Miss Howse's costs. Application for leave to appeal to the House of Lords refused.