England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT CO/5091/2005
(Auld LJ and Wilkie J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

LORD JUSTICE HOOPER:

This is the judgment of the Court

1. At the conclusion of the hearing last Friday we announced our decision that the Secretary of State for Justice ("SSJ") is required within 28 days of that date to decide whether Lotfi Raissi is or is not entitled to compensation under the second paragraph of the ex gratia compensation scheme announced by Mr Douglas Hurd in 1985 (and abolished in April 2006):

"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 that 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 on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought."

2. On 14 February 2008 the Court of Appeal (the then Master of the Rolls, Smith and Hooper LJJ) in The Queen on the application of Lotfi Raissi v The Secretary of State for the Home Department [2008] EWCA Civ 72, [2008] QB 836, [2008] 2 All ER 1023 ordered the appellant's application for compensation under the ex gratia scheme to be referred back to the Home Secretary for reconsideration in the light of the judgment. A decision on that reconsideration has not yet been taken two years later. The responsibility for the ex gratia scheme now lies with the SSJ.
3. The details of the appellant's claim are set out in detail in that judgment. It is sufficient to repeat for the present purposes part of the introduction to that judgment:

"2. On 21 September 2001, the appellant, who was then 27 years old, was arrested at his home under the Terrorism Act 2000 on suspicion of having been concerned with the World Trade Centre atrocity ("9/11") ten days earlier. Following questioning, he was 'de-arrested' seven days later and was immediately re-arrested under a provisional extradition warrant issued at the request of the United States. The warrant related to what can only be described as minor charges, for which the appellant would normally have been entitled to bail. He was remanded in custody because it was said that he was a terrorist, involved in the 9/11 atrocities and that the charges were only "holding charges". He remained in custody until 12 February 2002, a period of some 4.5 months. On that date he was granted bail contrary to the objections of the Crown Prosecution Service (the "CPS") representing the United States. He was granted bail because the CPS was unable to say whether or when he would be charged with terrorist offences. On 24 April 2002, Senior District Judge Workman ("DJ Workman") discharged the appellant in relation to all the extradition charges. According to the clerk's notes, on that occasion, the district judge said:

'Your client appeared before me on a number of occasions when allegations of terrorism were made - the court has received no evidence at all to support that allegation.'

3. The public labelling of the appellant as a terrorist by the authorities in this country, and particularly by the CPS, over a period of many months has had and continues to have, so it is said, a devastating effect on his life and on his health. He considers that, unless he receives a public acknowledgment that he is not a terrorist, he will be unable to get his "life back together again". For that reason, he has sought compensation from the respondent."

4. The head of the team responsible for Miscarriages of Justice in the Ministry of Justice is Mr Paul Jackson. Mr Richard Mason is head of the unit within which that team operates. Mr Mason has made a witness statement for these proceedings relying upon his own knowledge and upon conversations with Mr Jackson.
5. In the words of the appellant's skeleton argument:

"The Appellant seeks a finding that the Secretary of State is in contempt of court as, more than two years since the decision of the Court, the Appellant's application has not been reconsidered (and no timescale has currently been set for doing so), and for an order that the Respondent complies with the order of the Court within a timescale specified by the Court (28 days is suggested)."

6. It is agreed that the order of the Court of Appeal required the respondent to reach a decision within a reasonable time. We did not need to decide whether the failure to comply with an order to do something within a reasonable time can constitute contempt of court because the appellant was content with the order which we made.
7. Mr Mason in his witness statement apologises for the delay:

"The witness statement from Mr Raissi's solicitor indicates that his client feels that he is being strung along and that he had no confidence that a review is taking place at all. I can understand Mr Raissi's frustration. To the extent that there has been a delay, and a failure more effectively to share what we could about how we would expect a decision to be made, I apologise both to him and to the court."

8. The SSJ accepts in the skeleton argument served on his behalf that the delay is "deeply regrettable."
9. Mr Jules Carey solicitor for the appellant summarises the position from the appellant's perspective in this way in his first statement:

"42. It is now over two years since the Court of Appeal's Judgment and order that the Secretary of State should reconsider Lotfi Raissi's application for compensation. It is six years since Mr Raissi first applied for compensation under the scheme. Mr Raissi has no confidence that a review is taking place at all. There is no apparent structure or timetable for the review, it is unclear who is conducting it and updates have consisted of no more than notices of further delay without explanation or apology."

10. The reconsideration started when leave to appeal was refused by the House of Lords on 19 May 2008. On 28 July 2008 the views of the Metropolitan Police Service ("MPS") and the Crown Prosecution Service ("CPS") were sought in the light of the conclusion of the Court of Appeal that:

"147. ... that there is a considerable body of evidence to suggest that the police and the CPS were responsible for serious defaults."

11. Both the MPS and the CPS denied that there had been any serious default. Their reports were forwarded to the appellant whose solicitors, after some six months, made substantial submissions in January and March 2009 contradicting the views of the MPS and CPS as expressed in those reports.
12. In May 2009 Mr Mason decided "for reasons of speed and fairness to focus on 'complete exoneration' which appeared at the time potentially more straightforward." Mr Mason wrote:

"If the Secretary of State were to decide that Mr Raissi should be paid compensation on this basis, we would not need to reach a decision on 'serious default' of either the CPS or the MPS."

13. Mr Fitzgerald QC for the appellant agreed with this approach. We are surprised that the decision to focus on complete exoneration was not made earlier.
14. Mr Mason describes what then happened:

"The Summer – May to September 2009

22. In order to inform advice to the Secretary of State on the issue of whether Mr Raissi was 'completely exonerated', and to satisfy ourselves that there would be no risk to public safety in paying compensation to Mr Raissi, we consulted the relevant bodies in Whitehall between May and September 2009.

23. We also sought further information from the United States Authorities through the CPS in June and July. No answer was forthcoming. A request through the Foreign Office to the American Embassy has not yet yielded results."

15. We learnt during the course of the hearing that the request through the Foreign Office had only been made a few days before the hearing. It is regrettable that this sentence appeared under the heading "The Summer – May to September 2009" and it is regrettable that it was not made clear that the request had only been made a few days ago. It is not surprising that it had "also not yet yielded results".
16. We take up the story from the chronology prepared by Mr Mason. On 28 September 2009 a draft submission to the Secretary of State was circulated to senior officers for comment. It seems reasonable to infer that by this time, having consulted "the relevant bodies in Whitehall", a draft recommendation for the SSJ must have been reached on the issue of complete exoneration.
17. It was decided during the course of the discussions which followed the circulation of the draft submission that contact should be made with the Independent Police Complaints Commission ("the IPCC"). We do not know on the papers when that contact was first made. We do know that on 4 November Mr Jackson received a call from the IPCC investigating officer, Mr Orr. Mr Jackson sent an email to Mr Mason about the call. That email was produced during the course of the oral hearing before us (we have added numbers to the sub-paragraphs to make it easier to cross-reference):

"I took the call on your line and it was Peter Orr from the IPCC. ... he was happy for you to call back and to meet this week if that would be helpful. What I gleaned was (rather randomly, I am afraid):

i. The IPCC report was ready in draft 18 months – 2 years ago it found that there was no misconduct by the police.

ii. This was around the time of Raissi JR and the criticisms of the police in that [judgment].

iii. Raissi sols (Tuckers) saw the draft report and said what about the court of appeal's comments in our JR you need to take into account.

iv. Following the reports from the Met and the CPS to us and Tuckers' response in March 2009 Raissi's sols widened/renewed their complaint to the IPCC in March 2009 saying that there had been a criminal conspiracy, using the CPS, Police reports to us, Tuckers' response and the CoA judgment as evidence – this was the first time anyone had seen anything in writing from the CPS – before that they had said they were simply acting on behalf of the Americans.

v. The IPCC have asked the Americans to view the material they have on Raissi and they are considering – he thinks they will allow.

vi. Peter last had contact with Americans in October 2009 but still waiting to hear, two jurisdictions in US, New York and Phoenix are involved and it is complicated to get approval.

vii. Tuckers only alert IPCC to court judgments that go in their favour (and think only they should be taken into account).

ix. Peter recently spoke with a police officer who had seen the American evidence and this suggested extensive contact between Raissi and Hanjour and others involved in 9/11.

x. Belief that American evidence will show contact between Raissi and those involved in 9/11.

xi. One issue is that while American evidence gathering complies with their own laws would not necessarily comply with ours.

xii. Peter happy to keep us posted, and as I say happy to speak to you or meet if I haven't covered anything.

This leaves us with a real difficulty. Initial thought is that I wonder whether we write to Tuckers saying that we have considered the evidence but cannot reach a decision. The IPCC are investigating and have much wider powers than us to investigate and we will await their findings. The slight trouble with that is they will say the IPCC aren't investigating the CPS and we have to make a decision on that. I think our response to that might be that these issues are intertwined and we are not prepared to make a decision until the IPCC report. We would need to get legal advice on this approach because I am certain it would lead to a JR."

18. Before continuing with the account of what happened thereafter we need to say something about the complaint to the IPCC in order to avoid any possible misunderstanding which could arise from paragraph iv of the 4 November email. As the second witness statement of Mr Jules Carey, solicitor for the appellant, shows, a complaint was forwarded on 22 December 2005 to the IPCC about the conduct of the MPS in relation to the arrest and detention of the appellant. According to Mr Carey:

"The investigation has not only been running for four and a half years but has, by the IPCC's own admission, been of "very poor quality" ... .

19. The details of the alleged admission are contained in paragraph 16 of the second witness statement.
20. Mr Carey states that:

"On 23 January 2009 I sent an email to Ian Bynoe [a Commissioner with the IPCC who at the time had conduct of the investigation] ... stating that I considered that the judgment of the Court of Appeal about the extradition proceedings constituting an abuse of process merited an amendment to the Terms of Reference of the investigation. I also pointed out that the recent disclosures made to the Respondent, by the MPS, in the course of the Respondent's review, made it abundantly clear that the MPS knew that the "diary" being used to link Mr Raissi to terrorism could not be so relied on two months before the Magistrates Court became aware that the link was not reliable."

21. What therefore happened in early 2009 was that Mr Raissi's solicitors sought an amendment to the terms of reference and gave the IPCC further material to consider in the investigation which, as we have said, had been initiated in December 2005.
22. We return to what happened after 4 November 2009.
23. In the material produced by the respondent for the hearing was an email from Mr Orr to Mr Mason dated 23 December. Mr Orr explained that the CPS had now for the first time provided the IPCC with material including records of oral briefings and written instructions given by FBI agents to the CPS. The CPS had earlier declined to reveal that material to the IPCC as it had also done when asked by the SSJ to give its views about whether the actions of the CPS had constituted "wilful default".
24. The email continued:

"A formal request has been submitted to the United States Department of Justice for disclosure of material held by them; this request is still being considered by the US authorities. The material held by the FBI is believed to include clear links and associations between Raissi, Hanjour [a 9/11 hijacker] and others.

Once a decision is made by the US authorities the investigation can be progressed by either examining the material held, or concluding it and basing finding on the evidence in our possession."

25. It was on this passage in the email that the respondent placed substantial reliance on the issue of complete exoneration.
26. We asked during the course of the hearing who was the person who believed that the FBI material included these links. Notwithstanding the reliance placed on this passage, we were told that no contact had been made with Mr Orr to find out who that person was. A little later in the course of argument we were shown the email of 4 November. In that email, as we have seen, it was said that Mr Orr had recently spoken with a police officer who had seen the American evidence and this suggested extensive contact between Raissi and Hanjour and others involved in 9/11. We presume from the context that Mr Orr was referring to an English police officer and that was the source of the belief that American evidence would show contact between Raissi and those involved in 9/11.
27. Pressed about the issue, the respondent produced a further email during the course of the hearing, dated 20 January 2010. That email from Mr Jackson to amongst others Richard Mason stated, in part:

"As discussed yesterday, I have now spoken again to Peter Orr at the IPCC in relation to your question below:

Whether we know when the US authorities might be expected to make a decision, and whether we think they are likely to say 'yes'.

As we suspected he is not sure. He has made 3 requests but if there is no response from the US in the next four weeks or they say 'no' then it is likely that the IPCC will go on to consider the matter on the basis of the material they have. He will chase them again tomorrow. Of course, because they call a halt to getting information from the US, or the US provide it, that does not mean that a decision will come shortly after."

28. As we understand the position, the US authorities have not responded. It is unfortunate that we were not told in the documents prepared for the hearing that, at least, four unsuccessful requests for information have been made by the IPCC to the US authorities with no response forthcoming.
29. Mr Mason tells us what happened next:

"On the basis of what I had learnt about the IPCC's inquiries in November, information which was confirmed in writing on 23 December, I concluded that I could not properly advise the Secretary of State to make a decision on either limb of the discretionary compensation scheme in the absence of information that I anticipated would arrive reasonably soon. By reasonably soon I mean a period of 3 to 4 months. I took the view that it would not be appropriate for the Secretary of State to make a decision in ignorance of evidence that might go so directly to questions of grave public concern and matters of public protection. On this basis, I decided to advise the Secretary of State about the fact of the extended IPCC investigation, explain the background to the case, its history and the legal considerations, and recommend that he not take a decision until the Ministry of Justice had seen and considered the IPCC's report. That submission was circulated in draft for comment on 18 December, substantially revised and circulated again on 16 February, and it was put to the Secretary of State's office in its final form, and copied to other ministers and senior officials, on 16 March 2010, the day before we received notice of this application.

30. The Secretary of State responded to that submission on 22 March 2010 saying that it was his view that he could not make a decision on Mr Raissi's application until after the IPCC had reported their findings."

30. By 22 March these proceedings had been served on the SSJ.
31. Miss Outhwaite QC for the respondent submitted that we should make an order the effect of which was to permit the SSJ to await the report of the IPCC and then give the SSJ time to evaluate the report and make a decision.
32. We do not agree with this submission for a number of reasons.
33. We have no idea how long the IPCC will take to prepare a report. Mention is made by Mr Mason of three to four months but we are not sure on what that estimate is based. In any event, in so far as complete exoneration is concerned, it is not easy to see how the IPCC could help. We now know that at least four unsuccessful requests have been made to the US authorities by the IPCC and that the last contact was in October 2009. We now know that the IPCC is continuing the investigation on the current assumption that it will receive nothing from the US authorities. We know that the SSJ made unsuccessful attempts in the summer of 2009 through the CPS to obtain information from the US authorities and we are entitled to draw an inference that the SSJ was unable to obtain any information of use in this respect from "the relevant bodies in Whitehall". We know that the last effort on the part of the SSJ to contact the US authorities was only made a few days ago.
34. Furthermore we have grave doubts whether the US authorities could provide any additional material on the issue of complete exoneration to that already available. There was insufficient material available to the MPS to detain the appellant once seven days had expired following his arrest. We know that the CPS accept that the extradition request was only made by the US Government because it entertained suspicions that Mr Raissi was a terrorist (supplementary bundle E 34). By 10 January 2002 (supplementary bundle E 34) the Department of Justice had informed the CPS that they would not be providing evidence of the terrorism allegations against Mr Raissi. Given that the rules on the admissibility of evidence on a bail application are not strict, it is difficult to imagine that there was some additional material available in the United States showing that Mr Raissi was involved in 9/11 which was not produced or adverted to at the time. It is hard to believe that if some additional material has since become available it would not have surfaced in some form or another.
35. Having rejected the submission that the SSJ should be given an opportunity to await any report from the IPCC, we decided to give him 28 days. We did that bearing in mind what we consider to be the inordinate delay and bearing in mind that a draft submission was available as long ago as September 28 2009.
36. At the conclusion of the hearing we invited submissions on costs. The appellant sought an order for costs on an indemnity basis covering not only the preparation for this hearing but also covering a period preceding the making of the application.
37. Mr Carey in his first witness statement describes what happened after March 2009, by which time the SSJ had received the appellant's submissions on the reports from the CPS and MPS. As can be seen from this account, proceedings designed to obtain a decision were threatened as long ago as May 2009:

"25. ... a further period of protracted email and letter correspondence ensued in which I repeatedly requested updates from the OCJR as to when we could expect a decision and at least when we could expect confirmation from the OCJR as to whether they would be seeking further information or indeed what the next steps were in this review. I wrote requesting updates on 18^th March 2009 and 19^th March 2008. On 19^th March 2009 Paul Jackson wrote confirming he would provide an update within two weeks and that by then he hoped to have a "clearer picture of how the matter will be handled and a provisional timetable". On 21^st April 2009 I wrote again requesting an update (as one had not yet been provided), Paul Jackson's response on 27 April stated;

'I am still taking advice on this matter and will get back to you shortly on what the next steps will be. I can say we are considering all of the papers very carefully before deciding whether further information is required'

26. I responded to Mr Jackson's email the same day notifying Mr Jackson that it was not acceptable to operate a review process in which they can not even give an indication as to what the next steps are, or a likely time frame. On 28^th April 2009 I received a further email from Paul Jackson stating that an update would be provided "as soon as possible and certainly within the next 2 weeks". However, no update was forthcoming.

27. On 14^th May 2009 I faxed a letter to the OCJR with a letter warning that if the conclusions of the OCJR review are not disclosed by 27 May 2009 or at the very least a clear and reasonable plan for the review with a timetable I would either make an application for Judicial Review against the OCJR for failing to perform its function or alternatively seek the enforcement of the Court of Appeal's order.

28. I received a formal written response from the OCJR on 22^nd May 2009 which stated that:

"…you may know that in general once all the paperwork on an application for compensation has been received we aim to make a decision within 4 months. However, in more complex cases, as Mr Raissi's undoubtedly is (in fact it is unique), it can take longer…I can assure you that since we received your submissions the papers have been under active and ongoing consideration. We are anxious to make a decision on the application as soon as possible. We are, therefore considering whether a decision can be made on the basis of the papers we have under either the serious default limb of the scheme or the other exceptional circumstances limb (including complete exoneration) or whether additional information is required. I expect to write to you again in June with a firmer indication of how matters will proceed."

29. On account of the assurance by the OCJR that a decision was imminent Mr Raissi instructed me that he was prepared to wait for it. I received no further update however. I sent a letter to Paul Jackson of the OCJR on 4^th June 2009 asking for details of the nature and scope of the consultation that the OCJR instigated. The response from Mr Jackson by email on 15 June is that he had nothing to add to his earlier letter. He stated that he expected that a decision would run into July but he hoped it would not be longer.

30. I further emailed Mr Jackson for an update on 2^nd and 6^th July 2009. Mr Jackson advised me that I should receive an update before the end of July. On the 21^st July 2009 I received an email from Mr Jackson which stated that a response by the end of July would not now be forthcoming. The reason given was:

"Parliament goes into recess shortly and I will also have completed an office move next week and I hope that will enable both my advisors and myself to focus more fully on this work after next Tuesday. That said, I can assure you that we have been and are working on the papers but we have been unable to complete all our considerations at this time".

31. Mr Jackson suggested in this email that a further update would be forthcoming by the end of August. On 21 July I sent an email to Mr Jackson and copied it to the Justice Minister complaining of the inordinate delay and advising that it was our client's intention to apply to the Court of Appeal for an enforcement order. This was the second threat of enforcement proceedings. On 22 July I received an email from Mr Jackson asserting again that the matter was under "active and ongoing consideration" and that they were complying with the court order. In response to the threat of applying to the Court of Appeal for an enforcement order Mr Jackson merely remarked that it was a matter for myself and Mr Raissi. I took the view that over the summer it would have been more difficult to have the application heard and Mr Raissi agreed that he would wait until the Autumn.

32. On 28^th August 2009 I wrote to OCJR requesting an update. I received a response from Mr Jackson which said that it was not possible to supply an update, "the papers remain under active and continuing consideration" and that I could expect progress to be made within a few weeks. I wrote to Paul Jackson again by email on 1^st September 2009 expressing strong objection to the high handed tone of the communications from the OCJR and its failure to abide by any of the deadlines it set for itself. I advised that we would now be proceeding with an application for enforcement to the Court of Appeal and that we were also attempting to resolve the matter by initiating a meeting with the Justice Minister.

33. On 28^th August 2009 I also sent an email to Mr Ashwood, the PA to the Secretary of State for Justice, setting out the details of the OCRJ review and a request for a meeting between Lotfi Raissi and the Secretary of State in the hope of resolving the outstanding issues.

34. On 2^nd September 2009 I wrote a follow up letter to Mr Ashwood setting out the terms of the Ministry of Justice (OCJR) review as I understood them to be. The response from John Owen, private secretary to the Justice Minister, was received by Tuckers Solicitors on 18^th September 2009 and was dated simply September 2009. It stated that Paul Jackson at the OCJR had been asked to expedite the matter but that it was unlikely it would now be resolved before the end of the parliamentary recess. The letter further stated that 'the Justice Secretary is not able to determine the application and, therefore a meeting would not be appropriate'. It was unclear why the Justice Secretary was not able to determine the application and no attempt was made to explain the reasons for the delay so far.

...

36. I emailed Mr Ashwood, Mr Owen and Paul Jackson on 18^th September 2009 complaining about the continuing delay and how differently the Justice Minister was dealing with Lotfi Raissi's UK miscarriage or justice compared with Michael Shields' Bulgarian miscarriage of justice case. Despite chasing, I have not received a response to this email.

37. In the months that followed there was further email correspondence between myself and Paul Jackson. I wrote on 12^th November 2009 and 16^th November 2009 requesting an update. I asked for details as to who was considering the papers at the OCJR and how much longer the consultation would be. I received a response on the same day from Mr Jackson saying "I will respond as soon as possible, and in any event I will write to you again within the 20 working day target for responding to correspondence". On 9 December I emailed Mr Jackson to observe that he had not in fact returned to me or answered my correspondence. [To which, we are told by Miss Outhwaite, there was a reply on 11 December.]

38. On 8^th January 2010 Paul Jackson informed me that the OCJR "were currently thinking about, what impact, if any, the ongoing investigation by the Independent Police Complaints Commission should have on the timetable for the Secretary of State's consideration of the application for compensation". It was confirmed that a further update would be provided by 15^th February 2010.

39. I wrote to Paul Jackson on 13^th January 2010 and copied John Owen and the Minister for Justice into the email. I called into question why the OCJR was now concerning itself with Mr Raissi's complaint at the IPCC which had itself been running for 5 years and had not so far been taken into account by the OCJR in any of its earlier decisions. I took the opportunity in the email to compare the system of investigating police complaints by the IPCC under the Police Reform Act 2002, which requires a system of openness and transparency, to the system being operated by the OCJR. Specifically, I complained that in the OCJR review there were no terms of reference, a complete lack of clarity in terms of who is responsible for making a decision, there is no disclosure in terms of what evidence is being sought or collated, updates had been perfunctory and opaque, there was no plan of what steps still needed to be taken or time estimate for the end of the review.

40. Paul Jackson's response on 20^th January 2010 was as follows;

"With apologies for the delay in acknowledging your email. I fully understand the comments that you have made and appreciate your frustration. I expect to be able to offer you a more detailed explanation of the current state if play when I respond in mid-February"

41. On 15^th February I emailed Mr Jackson observing that a response had not been received. Mr Jackson responded as follows by email on 16 February: "I am sorry to be a day later than I said in getting back to you. The papers are currently being considered by my Head of Unit and I hope to revert to you shortly."

38. It is our view the order of costs should cover the period starting 28 days after the draft submission was ready on 28 September 2009, that is 26 October 2009. In the light of all we now know any further delay was not justified.
39. We turn to the application for indemnity costs. In our view the respondent's handling of the appellant's claim after 26 October 2009 as described in paragraphs 17 and onwards can properly be categorised as showing a high degree of unreasonableness when seen in the light of the whole history of this matter.
40. We therefore grant an order for costs on an indemnity basis from and including 26 October 2009.
41. We gave the respondent liberty to apply if he wished to submit that the calling of a general election might preclude him from making a decision in the 28 days available. First we make it clear that although we have granted the respondent 28 days it may well be that he is able to make the decision earlier and we urge him to make the decision as soon as possible. Secondly, although we have heard no argument about this, it seems to us that the Secretary of State's decision under the ex gratia scheme may well be of a quasi-judicial nature. In our papers for the appeal was a reference to a statement made by the SSJ on 9 September 2009 when deciding to recommend to Her Majesty the Queen that Michael Shields should be granted a free pardon. Michael Shields had been convicted of attempted murder in Bulgaria and returned to this country to serve his sentence. In the last paragraph of the statement the SSJ said:

"I add this as a postscript, one issue that has emerged from this case is the appropriateness or otherwise of the Justice Secretary, rather than a court, exercising this power over a prisoner's liberty involving findings of fact in an alleged miscarriages of justice, particularly in relation to cases from abroad. I am clear, even with expert advice, that a quasi-judicial role such as this is not a suitable function for the Executive. I shall therefore be exploring alternative options for dealing with any future cases which arise."