Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13th February 2004
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the applications of Ali Daghir, Elizabeth Forsyth and Peter Dimond
|- and -
|The Secretary of State for the Home Department
Mr Hugo Keith (instructed by the Treasury Solicitors ) for the Defendant
Hearing dates: 15 and 16 January 2004
Crown Copyright ©
Mr Justice Hooper:
"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.
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 [limb 1 as it is known].
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 that 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 [limb 2 as it is known].
It has been the practice since 1957 for the amount of compensation to be fixed on the advice and recommendation of an independent assessor who, in considering claims, applies principles analogous to those on which claims for damages arising from civil wrongs are settled. The procedure followed was described by the then Home Secretary in a written reply to a question in the House of Commons on 29 July 1976 at columns 328-330. Although successive Home Secretaries have always accepted the assessor's advice, they have not been bound to do so. In future, however, I shall regard any recommendation as to amount made by the assessor in accordance with those principles as binding upon me. I have appointed Mr. Michael Ogden QC [now Lord Brennan QC] as the assessor for England and Wales. He will also assess any case that arises in Northern Ireland, where my right Hon. Friend the Secretary of State for Northern Ireland intends to follow similar practice."
"Allegations of serious default can of course vary enormously but the situations involved may include:
fabrication of evidence;
suppression or non-disclosure of evidence;
breaches of the Police and Criminal Evidence Act 1984;
failure to investigate properly".
"There are no set criteria for determining whether the threshold of serious default has been met (this would be inappropriate for what is, in essence, a discretionary policy and any criteria might be construed as fettering that discretion).
10. But there are a number of considerations which would have a bearing on the decision:
the significance of the alleged default in relation to the case (sourced from comments by the judge at voire dire or during hearing; Court of Appeal judgments; CPS; police or other public authority):
the status of the alleged default (i.e. whether it has been investigated and a reasonable explanation given or whether it can ever be substantiated);
what evidence exists to suggest that the default was deliberate or negligent;
whether those who committed the alleged default would have known the likely impact of their actions and it is reasonable for those involved to have been aware of this (e.g. did regulations exist which they should have known about etc.);
the cumulative effect of the alleged action whether it is one devastating impact or the combined effect of a number of incidents.
In short, it is the context of the alleged default in relation to the case as a whole which is often critical to the decision; something which is considered exceptional in one case might not be so exceptional in another.
11. If serious default is not alleged or established, consideration is given to whether the applicant has been completely exonerated within the terms of the statement. Complete exoneration has been construed as covering those rare cases where it is conclusively established that the accused person did not commit the crime. Acquittal of an offence in itself has not been construed as complete exoneration but more generally as reflecting the operation of the due process of law. Under the 1985 statement, compensation is not paid 'simply because at 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.'
12. Generally, exceptional circumstances are recognised when seen rather than defined in advance, and the 1985 statement has provided a reasonably wide discretion. The standard applied in considering ex-gratia cases has been very high and the number of payments made consequently small. The vast majority of ex-gratia applications have not met the terms of the 1985 statement and have been refused."
"25. In determining whether there has been a "serious default on the part of a member of a police force or of some other public authority" there are three questions to be asked:
(1) Has the alleged default been committed by a member of a police force or of some other public authority? The vast majority of applications where serious default is an issue will involve allegations against the police. Other public authorities against whom allegations of serious default might be made, and which could if proven justify payment of compensation, include HM Customs & Excise, the Crown Prosecution Service, the Probation Service and Social Services. This is not, however, an exhaustive list. On the other hand, the Courts have consistently said that neither a judge nor a magistrate is a public authority (see paragraph 30 and 36(1) and successive Secretaries of State have taken the view that prosecuting Counsel is not a public authority (but see paragraphs 50 and 51).
(2) Has there in fact been a default? There is a wide range of defaults that might be committed in the course of a wrongful conviction or charge, including any or all of the following:
(a) fabrication of evidence;
(b) suppression or non-disclosure of evidence;
(c) breaches of the Police and Criminal Evidence Act 1984;
(d) failure to investigate properly;
(e) failure to follow correct procedures.
The first question to ask about any allegation of these or other defaults is whether it is well founded. Has the allegation been investigated and substantiated? Is there a reasonable explanation for an apparent default? Even if it is clear that there has been a default, this would not of itself automatically trigger a payment of compensation.
(3) Does the default constitute a serious default for the purposes of the ex-gratia scheme? This will often depend on the individual circumstances of the case. There are no set criteria for determining whether the threshold of serious default has been met. But there are a number of considerations that would have a bearing on the decision, namely;
(a) The seriousness of the alleged default in relation to the case (this may be apparent from: comments by the judge at voire dire or during hearing; the Court of Appeal judgment or comments made by CPS, police or other public authority);
(b) What evidence exists to suggest that the default was deliberate or negligent (though on the one hand a negligent act does not necessarily constitute a serious default, and on the other even an "innocent oversight" can do see paragraph 32 (4));
(c) Whether those who committed the alleged default would have known the likely impact of their actions, or whether it is reasonable to assume they should have known (e.g. did regulations exist which they should have known about etc);
26. In short, it is the seriousness of the alleged default in relation to the case as a whole that is critical to the decision not the significance of the outcome of the default. In Sheffield and Brook the Divisional Court said that when assessing seriousness, one 'cannot refer to the consequences of the default, because in every case, where a default has resulted in a conviction, that default has resulted in a conviction that default must have had serious consequences. Accordingly we are looking at the nature of any individual default.' If a decision is taken that, notwithstanding a serious outcome the default was not serious, it will be important to go on to consider whether the case comes within the category of 'exceptional circumstances'".
"27. If serious default is not alleged or established, consideration is then given to whether the applicant has been completely exonerated.
28. As a matter of practice, and in keeping with the exceptional nature of ex-gratia payments, the policy of successive Secretaries of State has been to pay compensation on the basis of complete exoneration only where facts emerge which establish beyond any doubt that the accused person did not commit, or could not have committed, the crime. The mere fact of an acquittal, whether at trial or an appeal, does not, of itself, completely exonerate the accused person, nor is it exceptional. Rather, acquittal of an offence in itself has generally been regarded as reflecting the operation of the due process of law because, under the terms of the 1985 statement, compensation will not [be] paid 'simply because at 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." (This aspect of the Home Secretary's policy was upheld by the Divisional Court in April 1999 in R v Secretary of State for the Home Department ex parte Garner and Others.)"
"It is important to bear in mind that serious default and complete exoneration are only examples of 'exceptional circumstances' in which compensation might be paid. The Home Secretary's discretion under the 1985 statement is effectively unlimited and, even if neither of these examples apply, there may still be other circumstances which, taken together or separately, are sufficiently exceptional to justify payment. In practice, cases where ex-gratia compensation is paid on grounds other than serious default or complete exoneration will be very rare. In the very few cases where other exceptional circumstances have been identified, there has generally been a combination of factors which individually would not have triggered a payment but which collectively tip the balance in favour of payment (e.g. a default that would not, on its own, be regarded as sufficiently serious to merit a payment, coupled with facts which tend to, but do not completely, exonerate the applicant). The circumstances of each case should therefore be examined as a whole, as well as against the specific examples."
"As indicated above, the Divisional Court said in Garner that it would be 'a very rare case indeed where judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the statement requires' (See also paragraph 40a.) Subsequently, in Tawfick, it said that ' a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances'. Beyond these remarks (and the fact the judge's conduct in Tawfick was deemed to be 'wholly exceptional'), there is little to guide us in determining what sort of judicial error might be 'of such quality as to give rise to exceptional circumstances'. Neither can we, in considering the judicial errors that have occurred in individual cases, apply any fixed criteria (because to do so could be to fetter the Secretary of State's discretion). But particular attention should be paid to anything that the Court of Appeal said about the nature and effect of the (alleged) judicial error. It is the effect of the error on the trial that is relevant here rather than the effect in the sense that it resulted in a conviction; whenever a conviction is quashed on the basis of one or more judicial errors, those errors can be said to have resulted in the original conviction, so this cannot be regarded as an exceptional factor. Essentially, as with serious default, it is the nature of the error rather than its consequences that determines whether it constitutes exceptional circumstances."
"In short, and whilst we can to some extent be guided by these two precedents, each case is considered on its individual merits and, as with serious default, it does not follow that a particular judicial error that is considered exceptional in the context of one case will necessarily be considered so serious in the context of another."
"In considering whether there was judicial error or misconduct amounting to exceptional circumstances, the focus of our attention will almost invariably be judicial error or misconduct on the basis of which the Court of Appeal quashed the conviction (and which could thus be said to have 'caused a period to be spent in custody'). However, the judgment of the Court of Appeal does not limit the considerations that the Secretary of State can take into account in determining whether or not to make an ex-gratia payment and to confine ourselves to considering only those errors that have been established as such by the Court of Appeal could be to fetter the Secretary of State's discretion. Thus, consideration should also be given (if relied upon by the applicant) to alleged judicial errors that were not considered by the Court of Appeal. However, in the absence of any judicial or quasi-judicial findings or agreement on such errors, it is unlikely that there will be sufficient grounds upon which the Secretary of State could be satisfied that they either contributed to the conviction or could amount to or contribute to exceptional circumstances."
The court's approach to the interpretation of 1985 policy.
"The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man's understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence."
"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, 'What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."
"It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts 'fall within the parliamentary intention' (see Royal College of Nursing of the UK v Dept of Health and Social Security  1 All ER 545 at 565,  AC 800 at 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word 'family' to have a narrow meaning for all time, it would be a court's duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court's duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament's function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation."
Is a judge a "public authority" within the meaning of the 1985 statement?
"For the purposes of the cases with which the Court is now concerned, the term 'public authority' hardly seems apt to apply either to a judge, or to a parliamentary draftsmen, or indeed to a member of the Crown Prosecution Service, or prosecuting counsel. It looks as though the Home Secretary when enunciating his policy may have been intending to refer to authorities like the police responsible for initiating or maintaining prosecutions, and to express his intention to pay compensation for deliberate wrongdoing on their part."
"The question is whether his announcement of his policy in the House of Commons in 1985 and the subsequent implementation of it had given rise to a legitimate expectation to which in the cases now before the Court the Home Secretary did not measure up because he was in breach of his duty to act fairly in applying that policy."
"The respondent has, it seems to us, invariably proceeded on the basis that a judge is not a public authority within the first limb. That approach is correct as far as it goes."
Rose LJ also said (page 600):
"Miss Dinah Rose, on behalf of Thompson, in submissions adopted by Counsel on behalf of all the other applicants, accepted that the Secretary of State is entitled to rely on authorities, which also bind this Court, which hold that a judge is not a public authority whose serious default can give rise to compensation under the first part of the statement "
Limb 2- length of sentence an exceptional circumstance?
"At the outset of the appeal the Court, without hearing submissions on the length of the sentence, stated that in the circumstances it considered that the sentence that it imposed is excessive and disproportionate to the appellant's role in the offences."
Limb 2- judicial misconduct
"It will, no doubt, be a very rare case indeed where a judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the Statement requires. It will, as Sir Thomas Bingham MR made claim in ex parte Bateman and Howse, be an even rarer occasion in which the Court will interfere with the Secretary of State's evaluative judgment in this respect."
"I accept Mr Keith's [counsel for the SSHD] submission that not every error by a judge be considered exceptional. The Divisional court in Garner was concerned to emphasise that a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances. It is necessary to concentrate upon the actions of the judge and to decide whether they amount to exceptional circumstances."
"Mr Keith contends that the Secretary of State's conclusion of the conduct of the judge did not amount to exceptional circumstances was within the range of reasonable responses to the test provided in the Scheme. I disagree. The attack by the judge on the integrity of the defendant in open court in front of the jury was, to my mind, wholly exceptional. The attack was advanced on more than one occasion. The judge accused the defendant of hoodwinking the jury and of trickery. Although the judge had been provoked, the Court of Appeal did not regard those observations as excusable. They were likely to have led the jury to regard the defendant as a liar and a cheat. These observations, it must be recalled, were made in the context of allegations of dishonesty. Moreover it is important to recall that the defendant was acting in person and was thus without any protection. As he complained at the time, he was humiliated by the interventions of the judge directed against him."
Moses J then referred to the Derek Bentley case and the fact that the Secretary of State had awarded compensation in that case. In paragraph 33 Moses J turned to the other arguments. He said:
"The additional argument that the judge failed properly to direct the jury as to the Crown's case could not have amounted to an exceptional case ."
1. Whether the Secretary of State acted irrationally in deciding that the judge's misdirection was not an exceptional circumstance; and
2. Whether the Secretary of State acted irrationally in deciding that the errors found against prosecuting counsel were not an exceptional circumstance.
"Having chosen to allege that the capacitors were for nuclear use, the prosecution had to prove that specific purpose if they were to satisfy the jurors on the first part of the case.
That was fully and properly accepted by the Crown in the appeal. Mr Moses conceded that if the jury was directed or left with the impression that it could convict on the basis that the capacitors were especially designed for military use generally, then the summing up was materially defective. He further conceded that such a defect could not be cured by the application of the proviso to s.2 of the Criminal Appeal Act 1968. The evidence during the trial and the lengthy arguments addressed to the jury by counsel, were directed at the case put forward by the prosecution that the capacitors had been designed for nuclear use since the Crown had nailed their colours to the mast, the defence was emboldened to call expert evidence, in particular for Mr Tilford, that the capacitors could be used in flash units for photographing explosives and ballistics. If the photography was of military ballistics, the capacitors could be said to be for military use and rendering their export unlawful."
"This passage in our view exposed the appellants to a significant risk of being convicted on a basis different from that on which the case had been fought."
"Nowhere in the summing up did the judge tell the jury that the prosecution had to prove that these capacitors were designed for use in nuclear bombs unless they were sure that they must acquit. On the contrary there were, as we have shown, a number of passages suggesting design for some, any, military use would suffice. There was in the circumstances a material misdirection and since it is conceded that the proviso cannot be applied, we concluded that this appeal must be allowed and the conviction must be quashed."
"Aside from the misdirection, which it is accepted was fundamental to the case, there were no other adverse findings in relation to the judge's overall conduct of the case and no other strong criticism of his summing up. There is certainly no evidence that the Court of Appeal questioned the judge's integrity and the Secretary of State cannot find any support for your claim of 'gross judicial misconduct'. He does not accept your allegation that the trial judge deliberately misdirected the jury nor that he was negligent in his approach."
"However, the nature of the judge's error was not so gross or exceptional as to fall within the second limb of the compensation scheme."
He also wrote:
"He has concluded that whilst the Court of Appeal considered that a clear direction was needed in this case, the error in this case is not of the order of a very rare judicial error that might constitute exceptional circumstances."
"The only reasonable inference which can be drawn from their silence is that they saw a better prospect of a conviction of the broader basis which overrode their previous consideration of the unfairness and injustice to the applicants [Daghir and Another] on the broader basis."
"It is to be inferred that the reason why Customs did not seek to instruct counsel to correct the learned judge in what was such fundamental and obvious misdirection ... (such that the Court of Appeal quashed the claimant's conviction on that ground alone without applying the proviso), was that Customs believed that a conviction ... [was] necessary for the reasons set out above.
It was better for customs to obtain a conviction and an exemplary sentence at any cost and lose on appeal because of judicial error than not to obtain a conviction and exemplary sentence at all."
"The summing up was delivered by an extremely experienced judge: It did not seem to me appropriate to seek to correct the way in which he summed the case up."
"I remember quite clearly that several weeks of the trial were devoted to dealing with a substantial amount of expert evidence in relation to the potential use of the capacitors. I also recollect that during my closing speech to the jury, I spent a great deal of time focussing on whether the prosecution had made out a case based on specific nuclear use.
It was therefore rather surprising to me when His Honour Judge Denison summed up to the jury that any military use would do. Such a direction was fundamentally and clearly inconsistent with the basis on which the case had been conducted throughout the trial that only special design for nuclear use would do. In view of the above, it seemed His Honour Judge Dennison had decided to take a particular view of the case. As defence counsel, I did not see that it was my duty to try to correct such a fundamental error of law."
"This allegation of deliberate or negligent failure by HMCE through prosecuting Counsel to correct the misdirection of the trial judge is rejected by HMCE. The Secretary of State understands that this allegation was dealt with in the interlocutory proceedings in the civil case and struck out. You will know that neither HMCE, nor their appointed independent practising barristers considered the judge's summing up as a whole to be defective, because there were constant references to the evidence relating to special design for nuclear use. The Secretary of State is not satisfied that serious default is established. Your concerns about Counsel's failure to correct the trial judge will be addressed below under the second limb."
"The Secretary of State has considered your criticism of Counsel's failure at the time to bring the judge's attention to what you perceive was an 'obvious error'. I re-state that in Counsel's view the summing up as a whole was not deficient. The Secretary of State is aware that Mr Grenfell's evidence on this matter in the civil proceedings was 'The summing up was delivered by an extremely experienced judge; it did not seem to me to be appropriate to seek to correct the way in which he summed the case up.' He later expanded on this by saying, 'When I said, it didn't seem to me to be appropriate to correct the learned judge's direction, perhaps I should use a more appropriate phrase of to invite him to amend it. Because that would involve a subjective argument (inaudible) to move on.' The Court of Appeal did not make any adverse findings in relation to the conduct of prosecuting Counsel or HMCE in this regard (or any other) and the Secretary of State does not consider that the failure to intervene in the summing up amounts to exceptional circumstances.
"It was alleged against the appellant that, knowing or believing that the four hundred thousand pounds had been stolen from PPI [Polly Peck International] by Mr Nadir, she disposed of or assisted in the disposal of the four hundred thousand pounds by arranging for it to be sent from Switzerland to England."
On the prosecution's case, it was subsequently used for Mr Nadir's personal purposes.
"Whilst it is true that the direction as a whole is couched in subjective terms, we think it is open to misinterpretation. The appellant has said that she could not believe the money was stolen in spite of all the circumstances of suspicion suggested to her. Although it might have been obvious to others, it was not to her because of her trust and confidence in the integrity of Mr Nadir. We think the form of the directions may have left the jury with the impression that the appellant was guilty even though in her mind she could not accept that the goods were stolen. Thus the jury may have concluded that the appellant was guilty if they were satisfied that there were circumstances of great suspicion from which the only conclusion which could reasonably be drawn was that the goods were stolen but which the appellant because of her faith in Mr Nadir could not bring herself to believe so that her eyes had been closed to what was obvious."
" It seems to us that [the trial judge] ought to have made it clear to them that they had to be satisfied that the appellant actually believed that the money was stolen."
"On this crucial issue the judge's direction could have led the jury to find the appellant guilty without finding that she actually believed the money was stolen. Accordingly we believe he misdirected them.
"The essential issue for the jury was did the appellant believe the money she was assisting to dispose of was stolen? We are not satisfied that had the jury been given an appropriate direction on the meaning of 'knowing or believing' they would have been bound to find the appellant guilty. Equally we consider that the [other misdirection] significantly undermines the safety of her conviction. Accordingly, for the reasons given, we consider the appellant's conviction unsafe and allow her appeal".
"Mrs Forsyth contends that the errors/conduct of the judge fell well short of expected standards of judicial competency generally and particularly concerning several crucial issues by a very senior High Court judge in an extremely important fraud case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly conducting serious fraud trials, and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case."
"8.2 It follows that the five errors made by this senior and experienced judge in this case were, both individually and cumulatively far more than usually serious and thus fall into the category of 'exceptional'.
8.3 All the errors (save perhaps that relating to the witnesses in Northern Cyprus), related to simple and straightforward matters which occur or are likely to occur in trials before full and part-time judges up and down the country on a weekly, if not daily basis.
8.4. They are exceptional because:
8.41 The case was tried by a senior and experienced judge of the Queen's Bench Division who ought to have been capable of conducting the trial without any basic error, let alone five fundamental errors of the nature set out above.
8.42 The errors were made against the background of a very high profile case in which, for the reasons set out in paragraph 2.5 above, scrupulous fairness and care was plainly required.
8.43 The errors (whether considered individually or cumulatively) demonstrate manifest unfairness on the part of the trial judge in that he:-
Was guilty of fundamental errors in the basic conduct of a trial on a simple charge;
Deprived Mrs Forsyth of the ability fully and properly to put her defence;
Made prejudicial comments to the jury about Mrs Forsyth on a matter which the very witnesses which she was not permitted by him to call could and would have gainsaid (transporting the money in wheelbarrows); and
"You contend that the conduct of the trial judge in Mrs Forsyth's case should necessarily be classified as exceptional in the circumstances and that the errors/conduct of the judge fell well short of the expected standards of judicial competency generally and particularly concerning several crucial issues by a very experienced Senior High Court judge and rely on Bentley, Tawfick, Garner and Roberts.
We have considered whether the judge's errors in your clients' case constitute exceptional circumstance. Judicial error is one of the most common grounds on which convictions are overturned on appeal so the mere fact of there being a judicial error which renders a conviction unsafe will not, of itself, give rise to exceptional circumstances. The Divisional Courts said in Garner & Others (1999) that it would be "a very rare case indeed" where judicial misconduct is of the exceptional nature which the second limb of the statement requires" (emphasis added). Subsequently, Tawfick (2000), the Court said, "a mere case of judicial error, such as a mistake in a summing-up or in a ruling as to admissibility, would not constitute exceptional circumstances" (emphasis added).
The judicial errors identified by the Court of Appeal in your client's case were that the trial judge misdirected the jury as to the meaning of the words "knowing and believing". The Court held that judge's direction could have led the jury to find that Mrs Forsyth was guilty without finding that she actually believed the money was stolen. Secondly, the Court held that the judge should have hinted to the jury in strong terms against drawing any inference from the absence of Jason Davies from the witness. Without this direction, the Court considered that there was an evident risk that the jury may have discounted Mrs Forsyth's account of how she came to be involved and from the absence of supporting testimony from Jason Davies have drawn conclusions unfavourable to her defence. As indicated in Louise Douglas' letter of 2 March 2000 in out view, each of these errors is more akin to the kind of 'mere error' described by the Divisional Court in Tawfick than to the rare and exceptional kind contemplated by the Court in Garner. In short, we do not consider that the errors made by the trial judge in this case, whether taken together or separately, amount to 'exceptional circumstances sufficiently exceptional to merit an ex-gratia payment.
We have also considered the additional alleged errors by the trial judge which you have advanced i.e. the mistaken view of the provisions of s.32 (3) of the Criminal Justice Act 1988 in relation to Mrs Forsyth's application to adduce evidence by video link, remarks to the jury about delivering the money in 'wheelbarrows', Five years imprisonment was excessive and disproportionate. You also say that the absence of express criticism of the trial judge by the Court of Appeal does not necessarily mean that the mistake or conduct is not exceptional.
Even though the Court considered the grounds relating to the trial judge's rejection to Mrs Forsyth's application to adduce evidence by video link, the Court did not quash the conviction on this ground. The Court felt that as they were allowing the appeal on other grounds, it was unnecessary for them to decide whether on a review of all the relevant circumstances we would have held that the judge should have permitted evidence to be given by video link. The Court stated that:
'In general, once it is shown that there is difficulty in obtaining the attendance of witnesses abroad whose evidence is relevant to the defence, we consider the Court should lean in favour of permitting the evidence to be given in this way though in particular cases there may be reasons to refuse it. Even if on reviewing the exercise of the judge's discretion we had concluded that the application should have been allowed, we would have had to consider whether the evidence denied to [Mrs Forsyth] was so significant that her conviction was unsafe'
The Court did not examine whether there were reasons to refuse permission for evidence to be given by video link in this case or whether that evidence was so significant that the refusal affected the safety of the conviction. Further, it appears relevant that the conclusion in Tawfick was that:
'a mere case of judicial error, such as in a ruling as to inadmissibility, would not constitute exceptional circumstances."
In view of these points an error by the judge in respect of this point, if any, would not appear to constitute exceptional circumstances under the ex gratia scheme.
The Court did not consider the remarks to the jury about delivering the money in wheelbarrows. We do not consider that there are sufficient grounds, established by the Court of Appeal or otherwise, upon which the Secretary of State could be satisfied that the comments either contributed to the conviction in this case or were of a nature constituting exceptional circumstances for the purpose of the ex-gratia compensation scheme. As you may know, weighing the evidence is usually the function of the courts and, where applicants are acquitted at trial, or on appeal, it is primarily the Courts' conclusion to which we ordinarily turn when determining whether compensation is merited."
"Viewing the matter in broad common sense terms, one can see an obvious merits basis upon which it could be said that the appellant had committed an offence, since it appears that he clearly understood that Mr Nadir was not permitted by the court to leave this country, but nonetheless he took it upon himself to facilitate that result. Whatever his understanding of the technicalities, he made no bones at his trial about the fact that he did know that Mr Nadir's passport remained in the hands of the authorities and that the court was not willing that he should leave the jurisdiction."
"It seems to us that the prosecution having nailed their colours very firmly to the mast, it would at this stage by unfair to attempt to redraw the indictment. We note both that no such application was made or suggestion advanced at the first hearing of the appeal, and also that counsel for the Crown has advanced this possibility with very muted vigour today."
"As it is, the appellant may well consider himself in the event somewhat fortunate, but in our judgment the conviction is as it stands unsafe. We do not think it right to substitute an alternative conviction."
"Mr Dimond submits that there were serious judicial errors because the trial judge blinded himself to the obvious and made a fundamental error in wrongly ruling that the effect of the December 1992 "Bail Variation Hearing" was to re-impose on Nadir limited conditions of bail. Even if the trial judge was acting from the best of motives (which has to be open to question) his approach was so mistaken that his approach amounted to exceptional judicial error. In the alternative, Mr Dimond submits that there was serious judicial misconduct in that in order to secure his conviction, the trial judge in an attempt to circumvent the ruling in ex parte Guney knowingly devised a pure fiction that the effect of Mr Nadir's application to vary his bail at the hearing on 19 December was to re-impose on Nadir limited conditions of bail restricting his movement from that date."
"It would be artificial to suggest that at the hearing on 17 December 1992 the learned judge was granting bail in accordance with the Bail Act".
"Mr Dimond submits that the error/conduct of the judge was serious and fell well short of expected standards of judicial competency generally and particularly by a very experienced senior judge in a very important case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly in conducting an important trial and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case."
" The trial judge strove so hard to create a fiction and a degree of artificiality to ensure a conviction, which, from the severity of the sentence, it would appear, that he considered to be well merited."