England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		8th June 2007

1. MR JUSTICE MITTING: On 15th December 1987, Christopher Nugent was killed by two shots fired from a shotgun by Stephen Gray at the Mildenhall office of a financial services company trading as "Walkers", of which Nugent and the claimant, James Dowsett, were joint proprietors. On 22nd March 1989, the claimant was convicted of the murder of Nugent by a jury at Norwich Crown Court. The prosecution case was that the claimant had agreed to pay £20,000 to Gray and Gary Runham to carry out the murder. Gray and Runham pleaded guilty to the murder. The claimant's defence was that he had agreed to pay Gray and Runham £7,500 to set upon Nugent and to break his arm and so incapacitate him for a period from participating in the Walkers business; but had in fact paid £20,000 or thereabouts in total when blackmailed by them.
2. Grey gave evidence against the claimant. Unsurprisingly, his evidence was criticised as self-serving and in significant respects false. His evidence about the manner of the killing conflicted with expert firearms evidence called by the Crown. Nevertheless, as to the arrangements made before the killing between the claimant, Gray and Runham, the Crown contended that the evidence was true. It was supported by evidence from two people who knew the claimant: O'Dowd, who said that he had said to him in November 1987 that he was going to "have that bastard Nugent blown away" and on a separate occasion had gestured behind Nugent's back as if to point a gun at him; and Davis, who said the claimant told him on 7th December 1987 that he wanted to be "rid of" Nugent.
3. When interviewed after arrest, the claimant said at first that he had no knowledge of a plot against Nugent. Later he said that he had agreed to pay £7,000 to Gray and Runham to beat him up. On any view, Gray's evidence was a very important part of the Crown's case against the claimant; and his credibility (or lack of it) decisive to the reliance which the jury could put upon it.
4. The claimant sought leave to appeal out of time to the Court of Appeal against his conviction. Leave was refused by the Single Judge but eventually, on 28th October 1993, granted by the full court. The appeal was heard and dismissed on 29th March 1994. The grounds of appeal included the admitted fact that the Crown had not disclosed to the defence significant material that may have affected Gray's credibility: (1) a police action report which showed that three women who knew the claimant had not seen him at the place, Barton Mills picnic area, at which Gray said that the claimant had met him and Runham to give them details of the layout of the office at which Nugent would be found; (2) another action report from a police officer and a traffic warden who knew the claimant and his car which said they had not seen him outside the swimming baths in Mildenhall, at which place Gray said that the claimant had picked him and Runham up to take him to the meeting described in (1); (3) any material relating to the completion of Gray's lengthy witness statement, dated 12th January 1989.
5. The court's assessment of this material was that its impact on the case as a whole would have been minimal. Neither the failure to disclose this material nor other shortcomings, in disclosure relating to other issues, and in the summing-up, caused the court to have any doubt about the safety of the conviction. It was satisfied that no miscarriage of justice had occurred and so applied the then proviso to section 2(1) of the Criminal Appeal Act 1968.
6. The claimant appealed to the European Court of Human Rights at Strasbourg on 20th September 1994 and applied to the Criminal Cases Review Commission on 16th September 1999. He asked the Commission to defer its report until the Strasbourg court had given its ruling.
7. By a judgment dated 26th June 2003, the second section of the Court unanimously held that his rights under Article 6(1) of the Convention had been violated and awarded him costs totalling €15,500 and concluded that a finding of violation constituted sufficient just satisfaction. No compensation was ordered in respect of the conviction.
8. The issue was prosecution disclosure but it was broken down into two elements: (1) the material which the Crown did disclose to the defence before the appeal, including the police action reports to which I have referred; (2) material which was listed but withheld from disclosure before and at the appeal hearing, including a document subsequently known as D580 (of which more below). As to (1), the Court held that the procedure adopted permitted the defence to make full use of the material before the Court of Appeal, and the Court of Appeal to assess its significance, so that the requirements of fairness of Article 6(1) were belatedly satisfied; see paragraph 46 of the judgment. As to (2), the Court found as a fact that it was not satisfied that D580 had, as the Crown had contended, been disclosed to the claimant's representatives before or at the appeal, but that:

"There is therefore unambiguous evidence showing that the letter concerned had not been disclosed by the eve of the appeal hearing and only indirect, circumstantial evidence that the prosecution might have changed its mind at the last moment. The Court is not persuaded therefore that the Government have shown that this letter, relevant to the applicant's defence, was made available to his counsel in time for use at the appeal."

It rejected the Government's contention that the right of the defence to ask the Court of Appeal to review the material was sufficient in paragraph 49 of its judgment.

9. Document D580 is a letter from Gray's solicitors to Detective Chief Inspector Baldry of Suffolk Police, the force which investigated the murder. It reads:

"Re: Stephen Roy Gray

Further to our several discussions concerning Mr Gray, you will of course be aware that I did visit him in Leicester Prison on 26th March.

He has requested a transfer either to Brixton Prison or Wormwood Scrubs if this is at all possible and I should be grateful if you would let me know whether there is any possibility of Mr Gray receiving a transfer.

Secondly I now understand that apparently Mr Gray understands that you would be willing to support him receiving a straight term of life imprisonment and an Application for early parole.

Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters.

Thirdly I understand that Mr Gray's wife is to be produced at fortnightly intervals to Leicester Prison for visits and perhaps again you could clarify the position.

I look forward to hearing from you."

10. The claimant's representatives submitted to the Commission that the Strasbourg Court's findings, in particular in relation to document D580, required a reference to be made to the Court of Appeal in the exercise of its powers under section 13 of the Criminal Appeal Act 1995. The Commission gave careful consideration to the wording and possible implications of the document. It concluded that the arrangements instigated for Gray's location within the prison estate were unremarkable, given, as they put it, "the potential for disorder" in the case of a remand prisoner known to be intending to give evidence against a co-defendant in a serious case; that the reference to "straight life" was puzzling, given the nature of the sentence which the law required to be imposed on a conviction for murder; and that it was understandable that Gray would expect to receive special treatment of some sort given his agreement to give evidence. The Commission undertook further enquiries into Gray's imprisonment and discovered that, despite a recommended tariff of 11 years, he was still in prison. It specifically looked for documents before and after document D580 which might have related to it and it found none. Its provisional and final conclusion was stated in two paragraphs of its report, 6.35 and 7.49. It considered not only document D580 but also the documents that had been listed in a schedule before the hearing before the Court of Appeal but not disclosed either to the court or to the defence. It did so, because of the Strasbourg Court's finding in paragraph 47 of its judgment that:

"... this finding [that is to say the finding about document 580] is not however essential to the reasoning in this case as in any event it is not in dispute that other documents were not disclosed at this time on the basis inter alia of the prosecution's assessment that public interest immunity attached to them."

In paragraph 6.35 the Commission said:

"The Commission made an thorough examination of the papers held by the Suffolk Constabulary's Major Incident Archive where Document 580 was (and is) stored. All sensitive material, which has never been disclosed, was examined. Aside from Document 580, nothing seen by the Commission was thought to be either prima facie disclosable or to impact upon the safety of Mr Dowsett's conviction."

In paragraph 7.49, stating its final conclusion, it observed:

"Applying that test [that is the Pendleton test] to its referral powers, the Commission can only conclude that Document 580 was a letter showing that Mr Gray was being held in isolation from his co-defendants, that the police were facilitating visits for his wife and that he was hopeful for relatively favourable treatment (compared, at least, to his co-defendants) in terms of his life sentence. In the view of the Commission, this new information, taken in any combination with any other frailties in the prosecution case, is not sufficient to lead the Commission to believe that there is a real possibility that any properly directed jury might reasonably have reached a different decision in Mr Dowsett's case."

11. In giving permission to apply for judicial review of the Commission's decision, this court confined the grounds to the consequences of the Strasbourg Court's findings. In a nutshell, the question which we have to answer is this: whether the Commission was required by the fact that the claimant's Article 6 rights were infringed in the way identified by the Strasbourg Court, to refer the case to the Court of Appeal Criminal Division. The answer to that question requires two issues to be analysed: first, domestic law on the effect of the breach of Article 6 upon the safety of the conviction; secondly, the Commission's powers contained in section 13 of the 1995 Act.
12. As to the first issue, judges have not hitherto spoken with one voice. In R v Forbes [2001] 1 AC 473, at paragraph 24, Lord Steyn stated baldly that:

"If on such consideration it is concluded that a defendant's right to a fair trial has been infringed, a conviction will be held to be unsafe within the meaning of section 2 of the Criminal Appeal Act 1968."

13. Those observations did not however prevent him in R v Lambert [2002] 2 AC 545, from upholding a defendant's conviction in a case in which his Article 6 rights had been infringed in these terms, in paragraph 43:

"My Lords, this is a case of an accused found in possession of two kilograms of cocaine worth over £140,000. It must be comparatively rare for a drug dealer to entrust such a valuable parcel of drugs to an innocent. In any event the appellant's detailed story stretches judicial credibility beyond breaking-point. Even if the judge had directed the jury in accordance with law as I have held it to be the appellant's conviction would have been a foregone conclusion. I would dismiss the appeal."

14. As I interpret Lord Steyn's observations, he cannot be taken to have meant that any breach of Article 6, however trivial, must result in the conclusion that a conviction is unsafe. In Lambert, at paragraph 159, Lord Clyde expressed a view which has commanded the assent of the Court of Appeal Criminal Division in subsequent cases:

"I do not consider that this understanding of the offences in question in the future should cause any serious problem for any past or current cases. Ultimately what is in issue is the fairness of the trial. No doubt in many cases an unfair trial in contravention of Article 6 will constitute an unsafe conviction: see for example R v Togher [2001] 1 Cr.App.R 457; R v Forbes [2001] I Ac 473. But an unfairness is not always fatal to a conviction."

15. In R v Lewis [2005] EWCA Crim 859 a conviction was upheld as safe notwithstanding that the Strasbourg Court had held that the appellant's Article 6 rights had been infringed. In R v Dundon [2004] EWCA Crim 621, Rose LJ, at paragraph 15, said:

"In many cases, breach of an Article 6 Convention right will result in the quashing of a conviction as unsafe. But that is not necessarily the result in all cases (see per Lord Woolf CJ R v Togher and Others ... Lambert ... per Lord Slynn and per 43 Lord Steyn; and Mills v Her Majesty's Advocate and Another [2002] 3 WLR 1597 per Lord Steyn and ... per Lord Hope of Craighead; see also R v Webber and Others [2002] EWCA 2782). In every case the outcome depends on the kind of breach and the nature and quality of the evidence in the case. Just and proportionate satisfaction may, in an appropriate case, be provided, for example, by a declaration of breach or a reduction in sentence, rather than the quashing of a conviction. Breach arising from delay may have such a consequence. (see Attorney-General's Reference (No 2 of 2003) [2004] 2 WLR 1 ). And there may be other exceptional cases in which a conviction may not be unsafe, for example if there has been unfairness because of a legal misdirection but the evidence is overwhelming (see Lambert ...) or, possibly, if the trial is unfair because of inadequate prosecution disclosure on a peripheral issue but compelling evidence of guilt makes the conviction safe."

16. The conclusion which I draw from these observations and authorities is that not every breach of Article 6 will make a conviction unsafe. The nature of the breach and the facts of the case must in every case be analysed.
17. As to the second issue, section 13 of the 1995 Act reads:

"13.—(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless—

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made..."

Subsections (b) and (c) contain other conditions which are subject to subsection (2), which provides:

"(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."

On ordinary principles of construction, section 13(1)(a) contains no ambiguity. The Commission may only refer a case to the Court of Appeal Criminal Division if "there is a real possibility that the conviction ... would not be upheld."

18. The approach which the Commission must adopt to such references is now well established and is set out in R v Criminal Cases Review Commission, Ex Parte Pearson [2000] 1 CrAppR 141 at page 149 D to E in the judgment of Lord Bingham CJ:

"Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal."

And at pages 149F to 150A:

"The "real possibility" test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not."

19. Applying that test to the facts of this case and to the judgment of the Commission in this case, in my view the Commission was plainly entitled to reach the view that it did and so to refuse to refer. For those reasons I would dismiss this application for judicial review; but, before doing so, it is useful by way of a check to analyse what might happen if, contrary to the view that I have expressed, the Commission were to refer this case to the Court of Appeal Criminal Division.
20. As the Strasbourg court demonstrated in this case and as it has done in other circumstances and in other cases, for example Doorson v The Netherlands [1996] 22 EHRR 330, procedures in an appellate court can cure a defect in a trial at first instance. Thus, for example, as in Doorson, the ability to cross-examine a witness not available at first instance but available on appeal may cure that defect. In this case, as the Strasbourg court held, the opportunity for the Court of Appeal to review, in the light of submissions made by the defence, documents that have been disclosed to the defence cured the defect in disclosure in the court below. It must therefore follow that, on a reference, document D580, available to the defence and to the court, would be open to be considered by the court in circumstances in which its consideration would cure the failure to disclose in the court below. Likewise, in relation to the documents only listed but still not disclosed, two possibilities exist for the defect in the court below to be cured. The Crown might decide that, after the lapse of 20 years, it was no longer necessary to maintain public interest immunity in respect of the documents. Alternatively a special advocate might be appointed to examine them on behalf of the claimant.
21. In either event, the defect below would potentially at least be curable. Accordingly, the effect of a reference by the Commission in this case, if its judgment is right, would be that an otherwise perfectly safe conviction would not only be upheld but also would be upheld in circumstances in which the claimant's Article 6 rights would ultimately be fully vindicated by the appeal process. To embark on that course, if the judgment of the Commission is right, would be an academic exercise only. In my view there would be no purpose of justice to be served by requiring the Commission and the Court of Appeal to undertake it.
22. For those reasons I would dismiss this application.
23. LORD JUSTICE LAWS: I agree. By section 13(1)(a) of the Criminal Appeal Act 1995 the CCRC were required to consider whether there was a real possibility that the conviction would not be upheld by the Court of Appeal Criminal Division. A conviction would not be upheld if and only if the Court of Appeal were to consider it unsafe. Unless the finding by the European Court of Human Rights of a violation of Article 6 necessarily entails the conclusion that the verdict is unsafe, the impact of that finding was for the CCRC to evaluate in the course of their consideration of the section 13(1)(a) question. It seems to me that their treatment of it is beyond the reach of sensible challenge in court.
24. I agree with my Lord that not every criminal case where there has been a finding of violation of Article 6 yields the conclusion that the verdict is unsafe and I adopt with gratitude his summary of the relevant learning. While any breach of Article 6 is plainly a cause of concern, and instances of such breaches in cases where the conviction is nevertheless safe may be few and far between, in this area one would not expect to see a rigid rule with no exceptions but a case by case approach with much emphasis laid on the gravity and effect of a particular violation.
25. LORD JUSTICE LAWS: Yes.
26. MR MASTERS: My Lord, I do have an application before you in relation to appeal. I have discussed with Mr Perry the detail and both of us have come to the conclusion -- and I am very grateful for the assistance of the CCRC -- that this is a criminal cause of action.
27. LORD JUSTICE LAWS: With the obvious consequence that any appeal goes to their Lordships' house with a certificate.
28. MR MASTERS: Yes. My Lord, what I would ask -- I have drafted a question that I can show my Lords or I could ask my Lords for time. I know that in the Court of Appeal I think it is 14 days but I am not sure the time period applies in relation to the Divisional Court, I must say.
29. LORD JUSTICE LAWS: Time for what?
30. MR MASTERS: To draft a question for my Lords to consider.
31. LORD JUSTICE LAWS: Subject entirely to my Lord and to the submissions of Mr Perry, I would have thought you would have an opportunity to put a question in writing. I have a recollection that there is some glitch about the time for applying to the Lords. Is begins to run from when the judgment is handed down or --
32. MR PERRY: My Lord, no. It begins to run from the day upon which leave to appeal is refused but you count that day as the first day. It used to be 14 days and there was a notorious case where the petition was only lodged on day 15 because the first day had not been counted and for that reason it was extended to 28 days, so far as the Criminal Justice Act is concerned.
33. LORD JUSTICE LAWS: But it still runs from the day on which leave is refused and includes that day?
34. MR PERRY: And that is under the Administration of Justice Act.
35. LORD JUSTICE LAWS: Well, if we -- I am only saying if -- if we give a direction that Mr Masters may put in a written questions, plus application for leave, within seven days, obviously on notice to yourself, and then we consider it without a further hearing but in writing, if we refuse leave then time would run for any further application to their Lordships' house from when we do so. Is that right?
36. MR PERRY: Yes, that is right.
37. LORD JUSTICE LAWS: Are you content that we deal with it in writing?
38. MR MASTERS: My Lord, I wonder if I could just ask for ten days rather than seven. It is only because this weekend I am doing something specifically that would make it very difficult.
39. LORD JUSTICE LAWS: We do not wish to go into your private life. Yes.
40. MR MASTERS: I am grateful.
41. LORD JUSTICE LAWS: Ten days to put in an application for a certificate and leave to appeal in writing and I will not order but I will indicate, again subject to my Lord, we would expect any response, if he wishes to put one in, from Mr Perry within a week of that. Is that all right?
42. MR MASTERS: I am grateful my Lord. The only other thing I have been asked for by my instructing solicitors, I am not sure if I need to, is whether or not I need to ask for any legal aid taxation.
43. LORD JUSTICE LAWS: You are legally aided today, obviously. Then you need to have an order for detailed assessment for the purposes of the Legal Services Commission, I think. That is our understanding. We will grant that.
44. MR MASTERS: I am grateful, my Lord.
45. LORD JUSTICE LAWS: Thank you. We are grateful to counsel. Thank you Mr Perry, Mr Masters.