COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Queen's Bench Division
(Administrative Court and Divisional Court)
May LJ and Gray J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SEDLEY
| The Queen
On the application of
(1) Bhatt Murphy (a firm) and Ors
The Independent Assessor
|- and -
On the application of
(2) Noorrullah Niazi
(3) Hamidreza Tachibeglou
(4) Huseyin Cakir
|- and -
| The Secretary of State
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court
Mr Rabinder Singh QC and Mr Stephen Cragg (instructed by Hodge Jones and Allen) for the 2nd and 3rd Appellants and (instructed by Fisher Meredith) for the 4th Appellant)
Mr Jonathan Swift (instructed by The Treasury Solicitor ) for the Respondents
Date of Hearing: 14 & 15 April 2008
Crown Copyright ©
LORD JUSTICE LAWS:
COMPENSATION FOR MISCARRIAGES OF JUSTICE: THE SCHEMES AND THEIR BACKGROUND
"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."
"(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.
(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) on a reference
(i) under section 17 of the Criminal Appeal Act 1968..."
"I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph [sc. the statutory scheme] 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."
"... [N]or does the right to compensation in any way depend on the existence or proof of any delictual wrong recognised by the law. Wrongful conviction and punishment may and often are the result of delinquency on the part of public officials or others, but this is not necessarily so. The Secretary of State makes payment out of public funds to victims of miscarriages of justice not because he or his officials are or are treated as being wrongdoers, but because such victims are recognised as having suffered what may (as here) be a great injury at the hands of the state and it is accepted as just that the state, representing the public at large, should make fair recompense."
The discretionary scheme has been considered by their Lordships' House in the McFarland case, and by this court in Raissi  EWCA Civ 243.
THE SECRETARY OF STATE'S STATEMENT OF 19 APRIL 2006
"The existence of the second, discretionary scheme is confusing and anomalous. The scheme predates the introduction of international standards and agreements in this area and addresses cases beyond the UK's international obligations. The scheme currently costs over £2m a year to operate but benefits only between five and ten applicants. I do not believe that the discretionary scheme can continue to be justified.
Applications for compensation already received by the Office for Criminal Justice Reform will continue to be considered both under section 133 and the discretionary scheme. However, with immediate effect I will entertain new applications for compensation only under the statutory scheme."
This is what he said about legal costs:
"The Assessor has also decided that legal costs in relation to applications for compensation will, with immediate effect, be paid by reference to the fees for publicly funded civil cases as provided for in the Legal Help contained in the Community Legal Service (Funding) Order 2000. This change will apply to all existing cases (both under the statutory and discretionary scheme) which are currently awaiting a decision from the Assessor on the amount of compensation, as well as to all existing cases (both under the statutory and discretionary scheme) where the question of eligibility for compensation is being considered by the Office for Criminal Justice Reform, and to all new cases for compensation under the statutory scheme received by the Office for Criminal Justice Reform. However, in the case of applications already received by the Office for Criminal Justice Reform or already under consideration by the Assessor, the change will apply only in relation to legal costs incurred after today and compensation in respect of legal costs before today will be paid on the same basis as before."
The Office for Criminal Justice Reform ("OCJR") is a cross-departmental organisation within government which reports to Ministers in the Ministry of Justice, the Home Office and the Attorney General's Office. On behalf of the Secretary of State it decides eligibility for compensation under both schemes. If an application is found eligible it is passed to the Independent Assessor to fix the amount, including legal costs.
THE APPLICANTS AND THE SOLICITORS
"[I]t seems to us that critical aspects of the case against the appellant were so implausible as truly to defy belief"
and the case against Mr Taghibeglou "offended common sense".
"The Home Office will pay your legal costs in addition to your award for compensation so long as they consider that those costs are reasonable."
The letter goes on to deal with other matters. Then under the heading "Termination", among other things this is stated: "We may decide to stop acting for you if we have a good reason... We must give you reasonable notice that we will stop acting for you."
TRANSITIONAL AND CONSEQUENTIAL ARRANGEMENTS AFTER 19 APRIL 2006
"32. To avoid unfairness, it was decided that the pre-19 April 2006 approach to the costs of making an application for compensation would continue to apply for legal work undertaken prior to 19 April 2006 where an application has already been made. I should also make it clear that, in relation to applications for compensation received before 19 April 2006 a further concession will be made by the Assessor. In any such case it will be open to the applicant to make representations that his costs incurred after 19 April 2006 should be reimbursed at a rate higher than the Legal Help rate because work was undertaken on the assumption that a different rate would apply, and that work would not have been undertaken had it been realised that the Legal Help rate would apply. The Assessor will consider any such representations, and may adjust the amount payable in respect of the legal costs of the application for compensation accordingly. Finally, on this point, it should also be noted that the costs incurred when it is necessary to instruct an expert for the purposes of making an application for compensation are treated differently. The Assessor will agree reimbursement of reasonable costs for this purpose where he considers the use of an expert to be justifiable and necessary."
"52. ... Mr Swift, upon taking specific instructions, accepted that the Assessor will be prepared to receive and consider representations that a particular case might merit the payment of solicitors' costs above the Legal Help rate."
This seems to me to contemplate a somewhat wider discretion to pay costs on the old basis than is described by Mr Jackson in paragraph 32 of his witness statement which I have set out.
REASONS FOR REDUCING COSTS
"were not driven by the desire to make savings, rather to ensure that compensation following a miscarriage of justice is more proportionate to the level of injustice, to achieve a better balance with the treatment of the victims of crime, and to make the system simpler and fairer..."
So the concern was not to make net savings, but to ensure that available money was spent in the right place (as the Crown saw it). That is by no means to say that matters of cost were irrelevant to the decision; quite the contrary.
THE CABINET OFFICE CODE OF PRACTICE AND THE HOME OFFICE WEBSITE
Consultations have your say
Before changing policy, the Home Office publishes consultation papers.
These set out Government proposals on a particular issue and ask for responses from people and organisations with specialist knowledge in that area. We also value responses from the general public.
The responses received help to ensure that any proposed changes to the law will have a real, practical impact.
All Home Office open consultation papers are available in the current consultations section of this website. We welcome your views."
"23. The Prime Minister's Foreword introduced [the Code] with a statement that effective consultation is a key part of the policy making process. The first of six criteria adverts to wide consultation throughout the process allowing a minimum of twelve weeks for written consultation at least once during the development of the policy. The Introduction states that the Code and the criteria apply to all public consultations by government departments and agencies... The Code states that it does not have legal force but should generally be regarded as binding on United Kingdom departments and their agencies unless Ministers conclude that exceptional circumstances require a departure from it. Ministers retain their existing discretion not to conduct a formal written consultation exercise under the terms of the Code, for example where the issue is very specialised and where there is a very limited number of so-called stakeholders who have been directly involved in the policy development process."
I would add two citations from the Code, the first also from the Prime Minister's Foreword:
"[The original Code] has been effective in raising both the quality and quantity of consultation carried out by government. We consult more extensively now than ever before."
Then the first sentence of the Introduction:
"The code and the criteria within it apply to all UK public consultations by government departments and agencies, including consultations on EU directives."
LEGITIMATE EXPECTATIONS THE PRINCIPLES
Procedural Legitimate Expectation
Substantive Legitimate Expectation
"1. Sometimes the phrase [sc. legitimate expectation] is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him... [Various] authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel."
And it formed category (c) in the judgment of the court delivered by Lord Woolf in Ex p Coughlan at paragraph 57 (242C):
"(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."
A Question of Classification
"To qualify as a subject for judicial review the decision must
have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:
(b) by depriving him of some benefit or advantage which
either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment..."
Next, Simon Brown LJ's category 2 (Ex p Baker at 88 89):
"2. Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness - the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision..."
"Thus the only touchstone of a category 2 interest emerging from Lord Diplock's speech is that the claimant has in the past been permitted to enjoy some benefit or advantage. Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court's view of what fairness demands in all the circumstances of the case. That, frankly, is as much help as one can get from the authorities."
(1) Substantive Expectation
"[The health authority's promise of a home for life] was an express promise or representation made on a number of occasions in precise terms. It was made to a small group of severely disabled individuals who had been housed and cared for over a substantial period in the Health Authority's predecessor's premises at Newcourt. It specifically related to identified premises which it was represented would be their home for as long as they chose. It was in unqualified terms. It was repeated and confirmed to reassure the residents. It was made by the Health Authority's predecessor for its own purposes, namely to encourage Miss Coughlan and her fellow residents to move out of Newcourt and into Mardon House, a specially built substitute home in which they would continue to receive nursing care. The promise was relied on by Miss Coughlan. Strong reasons are required to justify resiling from a promise given in those circumstances. This is not a case where the Health Authority would, in keeping the promise, be acting inconsistently with its statutory or other public law duties. A decision not to honour it would be equivalent to a breach of contract in private law."
"May it be... that, when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict?"
The second reason is that the broader the class claiming the expectation's benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of. In Ex p Begbie I said this (1130G 1131B):
"In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes."
Though I will not go into the details, Ex p Begbie repays attention because the facts of the case (an apparent undertaking given to a parent as to the continuance of an assisted place at an independent school) potentially furnish another good example of this class of legitimate expectation potentially, because the claim failed for reasons not relevant to this present discussion (principally because to enforce the expectation would have required the Secretary of State to act contrary to statute).
(2) The Secondary Case of Procedural Expectation
"There could well be cases where the withdrawal of a travel pass would mean that the child would have to change schools, and it would seem right and sensible that the local education authority should pay some regard to the effect that a change of schools would have on that particular child before finally deciding whether to withdraw that advantage."
"On the history here, I consider that to reject Unilever's claims in reliance on the time-limit, without clear and general advance notice, is so unfair as to amount to an abuse of power."
It is plain both from Sir Thomas Bingham's judgment and that of Simon Brown LJ (Hutchison LJ added no reasoning of his own) that the court regarded the Revenue's conduct as outrageous (see for example Simon Brown LJ at 697c: "so outrageously unfair that it should not be allowed to stand").
"In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process."
Accordingly for this secondary case of procedural expectation to run, the impact of the authority's past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult.
The Paradigm Case of Procedural Expectation: Was There a Promise?
"23... The Introduction states that the Code and the criteria apply to all public consultations by government departments and agencies. Mr Swift submits, correctly in my view, that this means that the Code is to apply whenever it is decided as a matter of policy to have a public consultation; not that public consultation is a required prelude to every policy change. The Code states that it does not have legal force but should generally be regarded as binding on United Kingdom departments and their agencies unless Ministers conclude that exceptional circumstances require a departure from it. Ministers retain their existing discretion not to conduct a formal written consultation exercise under the terms of the Code, for example where the issue is very specialised and where there is a very limited number of so-called stakeholders who have been directly involved in the policy development process.
24. For the reasons given by Mr Swift, I do not consider that it is possible to read this document as any form of governmental promise or undertaking that policy changes will never be made without consultation. It would be very surprising if it could be so read, not least because a decision in a particular case whether to consult is itself a policy decision. Rather the Code prescribes how generally public consultation should be conducted if there is to be public consultation."
The Remaining Arguments
Pleas to the Secondary Case of Procedural Expectation
"44. But what are its implications? The appellants have not been able to propose any limit to the generality of the duty. Their case must hold good for all such measures, of which the state at national and local level introduces certainly hundreds, possibly thousands, every year. If made good, such a duty would bring a host of litigable issues in its train: is the measure one which is actually going to injure particular interests sufficiently for fairness to require consultation? If so, who is entitled to be consulted? Are there interests which ought not to be consulted? How is the exercise to be publicised and conducted? Are the questions fairly framed? Have the responses been conscientiously taken into account? The consequent industry of legal challenges would generate in its turn defensive forms of public administration. All of this, I accept, will have to be lived with if the obligation exists; but it is at least a reason for being cautious."
The court in that case declined to uphold a duty of such breadth, and I would decline to uphold it here. To do otherwise would be to judicialise what belongs to the political sphere. There is nothing in the facts of this case to bring it within the narrow and specific compass, best exemplified by Ex p Unilever, which is the proper territory of this class of legitimate expectation.
Pleas for Substantive Legitimate Expectation
LORD JUSTICE SEDLEY:
THE MASTER OF THE ROLLS: