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, WC2A 2LL
		4 February 2009

Mr Justice Simon :

1. This is a claim for Judicial Review of a decision of the Secretary of State for Justice set out in a letter dated 3 January 2008, in which he decided that the Claimant was not entitled to compensation for a miscarriage of justice, under s.133(1) of the Criminal Justice Act 1988.

Background facts

2. On 18 May 1993 at Newcastle Crown Court the claimant (Andrew Adams) was found guilty of the murder of Jack Royal, and was sentenced to Life Imprisonment.
3. On 12 January 2007 his appeal against conviction was allowed, following a reference to the Court of Appeal Criminal Division by the Criminal Cases Review Commission (CCRC).
4. The basis on which the appeal was allowed by the Court of Appeal was that the conduct of his case by his legal representatives had been inadequate; and that this had deprived him of a fair trial. The criticisms of his legal representatives related to the failure to discover and to deploy 3 pieces of evidence from the unused material made available by the Prosecution (see §147 of the Judgment). These were identified as

i) The Kevin Thompson material [referred to in paragraphs 72-78 of the Judgment],

ii) The West Road stop material [referred to in paragraphs 83-92 of the Judgment] and

iii) The Coalway Lane getaway material [referred to in paragraphs 110-122 of the Judgment]

5. The summary of the facts which follows is bound to be shorter and less complete than what is contained in the comprehensive judgment of the CA Crim Div (Gage LJ, Silber and Treacy JJ) [2007] EWCA Crim 1, reported at [2007] 1 Cr App R 34. I would therefore emphasise that it is intended briefly to summarise and put into context the deficiencies in the defence which were identified by the Court of Appeal.
6. At about 11.35pm on 19 March 1990 Jack Royal was murdered at his home in Newcastle upon Tyne by a single discharge of ammunition from a shot gun. The shot was at short range and to his face, and he died almost instantly.
7. In the summer of June 1991 Walter Hepple stood trial for this murder. On 26 June 1991 Walter Hepple was acquitted; and, as a result of the acquittal, the investigation into the murder was re-opened. The Claimant, together with a man named John Hands, was eventually charged with the murder of Jack Royal.
8. The Prosecution case in the 1993 trial was that Jack Royal had been killed in revenge for the earlier killing of David Thompson. Royal had been acquitted of the murder of David Thompson, having advanced a defence of self defence. The Prosecution sought to prove that the Claimant's girlfriend, Catherine Thompson, had solicited the Claimant to murder Jack Royal following his acquittal of murder of her brother David.
9. In the event John Hands was acquitted of the murder of Jack Royal and Catherine Thompson was acquitted of soliciting to murder.
10. The arrest and charge of murder was largely based on information given to the police about the killing by a man named Kevin Thompson, who was a friend of the Claimant, but no relation to either Catherine or David Thompson. He was the principal witness for the Prosecution at the 1993 trial.
11. Kevin Thompson's evidence was that, at about 6.00pm on 19 March 1990, he had been asked to drive the Claimant and Hands to Whickham so that they could 'chin a bloke who had been cheeky to Cath'. He agreed to meet them at the Denton Hotel at about 10.00 pm that evening. He went to the hotel at about that time; and the Claimant asked him to come back in about half an hour. He returned at some time between 10.30 and 10.45 and saw the Claimant and Hands at the door of the hotel. They all then left in the Claimant's silver coloured Renault 5 turbo.
12. The Claimant drove to Kevin Thompson's home where Thompson picked up his blue Ford Escort car. Thompson then drove to a petrol station opposite the Denton Hotel followed by the Claimant and Hands in the silver Renault. The timing and the presence of the Claimant's silver Renault car in the area is relevant to the West Road stop material.
13. After he had filled his car with petrol, Thompson said both cars drove to the Claimant's address. The Claimant and Hands went into the house; and, shortly afterwards, came out: Hands with a hold-all and the Claimant with a petrol-can. These were put in the boot of the Ford Escort. Kevin Thompson then drove them to a car park in Whickham; and Hands and the Claimant got out with the holdall and the petrol can. A few minutes later a white Montego car drove out of the car park, driven by the Claimant and with Hands in the passenger seat.
14. Between 10 and 20 minutes later the two of them returned. The Claimant asked Thompson whether he had heard a bang. Thompson asked whether he had chinned the bloke; and the Claimant responded by taking a single-barrelled shotgun out of the holdall and saying, 'I blew his fucking head off'.
15. At about this time the white Montego car was seen by neighbours to be on fire. This is relevant to the Coalway Lane getaway material.
16. Thompson drove the 3 of them away to another car-park at West Denton where the Claimant and Hands burnt some overalls; and Thompson agreed to hide the shot gun at his home.

The Unused Material

17. The Kevin Thompson Material consisted of records of meetings between Kevin Thompson and the Durham and Northumbrian Police in April 1992. At §81 of the Judgment of the Court of Appeal the significance of this material was summarised.

[Counsel for the Respondent] accepts that the strategy of the defence lawyers was to undermine Kevin Thompson's credibility and at the same time expose opportunities for information to have been fed to him by police officers. In our judgment the use of this material might have had just that effect.

18. The West Road stop Material is a reference to material which derived from a computer database (the Holmes database) which contained a document 'Action 491'. At the trial 2 police officers (PC Howstan and PC Robotham) gave evidence that they had performed a Police National Computer Check on the Claimant's car at 10.53, when it was being driven in West Rd at Denton. This evidence was relied on by the Prosecution as at least consistent with Thompson's account that he had seen a police car while he was filling his car, and while the Claimant and Hands were driving up and down West Road.
19. The Action 491, which had not been inspected by the defence team, referred to the stopping of the Claimant's Renault car by Police Officers; but in terms which might have been used to cast doubt on the timings and place of the stop, and most particularly on the evidence of Thompson in respect of the incident.
20. After considering the Respondent's arguments on this material, the Court of Appeal expressed its view about the material at paragraph 92,

Nevertheless, we cannot escape the fact that the prosecution case on this important piece of evidence was not tested to any real extent by the defence lawyers. They ought to have seen A491. [Counsel for the Respondent] concedes that it was unacceptable not to have inspected the Holmes database. If this document had been unearthed it would have given the defence lawyers a useful tool with which to challenge both the evidence of the two police officers and Kevin Thompson.

21. The Coalway Lane getaway material was material which suggested an alternative way in which the killers of Jack Royal might have escaped from the car park, having set fire to the Montego. The use of an alternative route would have cast doubt on Thompson's account of the Claimant and Hands coming across the car park. Coalway Lane was a footpath which was used by cars and was close to where the burnt-out Montego was found.
22. The Court of Appeal had no doubt that the defence team were unaware of the material, and added at paragraph 116

In our judgment, if the defence had known of the existence of this evidence, they would have adduced it.

23. The Court concluded that all this un-deployed material had been disclosed to the defence as unused material (see paragraphs 29, 58 and 155 of the judgment); and that the reason why it was not deployed was that it was unknown to counsel, because of deficiencies in the preparation of the case.
24. The Court went on to consider whether the criticisms were sufficient to render the verdict unsafe. At paragraph 155 the Court said this

None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before the trial. But the failure to use this evidence, in our judgment, demonstrates that, for whatever reason, the legal advisers at trial had failed in those respects in their pre-trial preparations.

25. At paragraph 156 of the judgment, the Court concluded that, although any one of the individual three failures would not be sufficient to render the conviction unsafe, it was quite satisfied that cumulatively they were so, for reasons which it gave.
26. At paragraph 157 the Court said this:

We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe.

27. Following this decision the Claimant made a claim for compensation.

The impugned decision

28. Section 133(1) of the 1988 Act provides:

... when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed ... on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction ...

29. The Secretary of State refused the application for 2 reasons,

i) The Claimant's conviction was not reversed on the basis of new or newly discovered facts. The evidence which led to the quashing of the conviction (identified by the CA under the three headings) was evidence available to the defence, but not deployed. The failings of the defence representatives were not new facts; and material which was available to the defence but not read was not 'new or newly discovered.'

ii) Any new or newly discovered fact did not show beyond a reasonable doubt that there had been a miscarriage of justice. All that could be said (looking at §157 of the Judgment) was that the Jury might or might not have reached a different conclusion had the defence made proper use of the material in question.

30. Each of those conclusions is challenged on the Claimant's behalf. It is accepted that he has to succeed on both points if the decision is to be quashed

Reasonable doubt that there has been a miscarriage of justice

31. In the present claim it is convenient to start with the issue of whether it can be shown beyond a reasonable doubt that there has been a miscarriage of Justice.
32. In my view the answer to this question (so far as this Court is concerned) must be answered by adherence to binding authority.
33. In R. v. Secretary of State for the Home Department ex p. Mullen [2004] UKHL 18, [2005] 1 AC 1, there was a difference of view as to how the expression 'miscarriage of justice' in Article 14.6 of the International Covenant on Civil and Political Rights (ICCPR) and in s.133 of the 1998 Act (which was intended to give effect to the UK's international obligation under Article 14.6), should be interpreted. However, all the members of House of Lords agreed that the appeal should be dismissed on the basis that the phrase 'miscarriage of justice' related to the trial process; and that, in the conviction of Mullen, there had been no failure in trial process. The conviction had been quashed by the CACD on the basis of pre-trial abuse of process, see R. v. Mullen [2000] QB 520.
34. The divergence of view was as to how the phrase 'miscarriage of justice' should be construed. The difference was between a narrow meaning espoused by Lord Steyn and a broader meaning suggested by Lord Bingham of Cornhill.
35. Lord Steyn was of the opinion that in its context 'miscarriage of justice' referred to a case where the innocence of the defendant was clearly acknowledged (see paragraph 46).

I conclude that the autonomous meaning of the words 'a miscarriage of justice' extends only to 'clear cases of miscarriage of justice', in the sense that there would be acknowledgment that the person was clearly innocent, as it is put in the Explanatory Report. This is the international meaning which Parliament adopted when it enacted section 133 of the 1988 Act (§56).

36. In paragraph 4, Lord Bingham expressed no concluded view on the question; but made it clear that he hesitated to accept this interpretation.

Plainly the expression [wrongful conviction] includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials

He went to consider various factual situations before adding,

In cases of this kind it may, or more often may not, be possible to say that he has been wrongly convicted. The common factor is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

37. At paragraph 9(1) Lord Bingham continued,

The expression 'miscarriage of justice' in section 133 is drawn directly from the English-language text of article 14(6). In the article the expression which is autonomous, in the sense that its content should be the same in all states party to the ICCPR, irrespective of the language in which the text appears. Nonetheless, 'miscarriage of justice' is an expression which, although very familiar is not a legal term of art and has no settled meaning. Like 'wrongful conviction' it can be used to describe the conviction of the demonstrably innocent: see People (DPP) v. Pringle (No.2) [1997] 2 IR 225, 230, 236, 246. But again like 'wrongful conviction', it can be and has been used to describe cases in which the defendants, guilty or not, certainly should not have been convicted …

38. 3 points may be noted,

i) The majority of the House preferred Lord Steyn's narrow construction. Lord Scott of Foscote expressed no opinion either way. Lord Rodger of Earlsferry agreed with Lord Steyn's view; and Lord Walker of Gestingthorpe considered that Lord Steyn had 'set out powerful reasons for his conclusion as to the autonomous meaning of the expression 'miscarriage of justice', although he went no further than agreeing with the limited ground for allowing the appeal identified by Lord Bingham.

ii) In R. (Allen, formerly Harris) v. The Secretary of State for Justice [2008] EWCA (Civ) 808 (paragraphs 37-41) the Court of Appeal (Civil Division), while finding it unnecessary to decide the differences of construction articulated by Lord Bingham and Lord Steyn, indicated that if it had been necessary, it would have preferred the narrower construction of Lord Steyn.

iii) Whichever of the two constructions is correct, the Claimant cannot bring himself within the broader construction of Lord Bingham since he can neither show that he was demonstrably innocent nor that he should clearly not have been convicted at the trial.

39. The Court of Appeal in the present case stated clearly (paragraph 157) that they were not to be taken as finding that, if there had been none of the failures which they identified, the Claimant would inevitably have been acquitted.
40. In paragraph 7 of his skeleton argument, Mr Owen QC realistically accepted that he could not succeed in a challenge in the present case in the light of the Court of Appeal's judgment in Allen/Harris, in which Lord Steyn's approach was preferred to that of Lord Bingham's.
41. It follows that the claim must fail.

New or newly discovered fact

42. For the Claimant (Mr Owen QC) submitted that the purpose behind the phrase 'new or newly discovered fact' is to prevent claims where a defendant has made a tactical decision not to deploy material that was in his possession at the time of the trial. It is not intended to punish a defendant for the failures of trial lawyers who would have been aware of the facts if they had acted competently. Although the material was theoretically available to the defence before trial, it was not 'discovered' on behalf of the Claimant until the CCRC review many years after the trial and the first appeal. Section 133(1) cannot be construed so as to impose on a defendant constructive knowledge of facts of which both he and his legal representatives were unaware, due to a failure to review the unused material. Nor can it be right to treat the lawyers as having constructive knowledge of facts of which they were unaware. It was never intended to restrict the compensation scheme to 'fresh evidence' cases; and there is no reason to adopt a narrow construction to the phrase 'new or newly discovered facts'.
43. Mr Tam QC, for the Secretary of State, submitted that 'new or newly discovered facts' can only be facts which emerge after the time permitted for an appeal has expired, see R. (Murphy and Brannan)) v. Secretary of State for the Home Department [2005] EWHC 140 (Admin). In that case the Divisional Court was dealing with a case where new evidence was available at an earlier appeal. Paragraph 58 of the Judgment reads:

We accept that section 133 of the 1988 Act, read in the light of article 14(6) of the ICCPR, is concerned only with facts that emerge after the ordinary appellate process has been exhausted. The disclosure of a fact between trial and the determination of an appeal brought within the normal time limit cannot engage the operation of the section. In this case the undisclosed material was disclosed to Murphy and Brannan before the hearing of the first appeal in 1993. If it had resulted in the quashing of their convictions on that appeal, it could not have given rise to an entitlement to compensation under section 133 of the 1988 Act; and although the same material played a part in the quashing of the conviction on the second appeal in 2002, it was still incapable of meeting the statutory conditions for compensation. Since it was already known at the time of the first appeal, at no time did it amount to a 'new or newly discovered fact'.

Conclusion

44. While I can see the attractions of an interpretation of the phrase 'new or newly discovered fact' which is clear and of general application, it seems to me that there are difficulties in confining it by reference to the statutory appeal procedure that applies in England and Wales: not least because, as Lord Bingham and Lord Steyn pointed out in Mullen (paragraphs 9(1) and 46), the interpretation of Article 14.6 calls for an autonomous meaning, in the sense that its content should be the same in all states party to the ICCPR. Article 14.6 of the ICCPR uses the same phrase 'new or newly discovered fact'.
45. I also see the attractions of the argument that, if the words 'shows beyond reasonable doubt that there has been a miscarriage of justice' are to be given a confined meaning, then the phrase 'new or newly discovered fact' should be given a wide interpretation, since it assumes that whatever is new or newly discovered leads to the clear conclusion that the defendant was innocent or (on Lord Bingham's broader construction) should clearly have not been convicted. However I am hesitant about accepting a prescriptive approach in the light of, (1) the importance of an autonomous construction of the phrase which ought to be argued on fuller material than was (quite reasonably) deployed before us; and, for this reason, (2) the remarks of Lord Bingham in paragraph 6 of Mullen and paragraph 7 of In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289. In the former case he described the difficulty and sensitivity of questions affecting the payment of compensation to acquitted criminal defendants; and in the latter he expressed the two reasons,

… The first is that ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just deserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter. The second source of difficulty and sensitivity derives from the interaction, in this field, of judicial and executive activity. Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside. This is reflected in section 14(1)(a) of the Criminal Appeal (Northern Ireland) Act 1980 and is currently reflected in section 10 of the Criminal Appeal Act 1995, providing for suspect convictions to be referred to the Court of Appeal for a final decision. Only very rarely could it be appropriate for the executive to act in a way which threw doubt on a judicial decision.

46. In the light of these considerations I would confine myself to the facts of the present case. These are clear. As the Court of Appeal expressed itself in the present case at paragraph 155,

None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before the trial.

47. It was in existence and available for inspection. Before the trial the Crown had repeatedly invited the Defence to inspect the material, see paragraph 78 of the CCRC Statement of Reasons. The fault was that the Defence team had failed to accept the offer of inspection; and therefore did not know what was in the unused material. In my view, and even without the fuller review which I have suggested above, there are grave difficulties in characterising such material as 'new or newly discovered fact.' The phrase is inapt to describe something which is available to be discovered by the legal representatives, but was not.
48. Mr Owen had two further points which were not developed in argument and which I can deal with shortly. First, he submitted that the Court of Appeal had erred in concluding at paragraph 155 of the judgment that there was material discovered by the CCRC (referred to in paragraphs 221-224 of the Statement of Reasons) about police contacts with Kevin Thompson which was not available at the time of the trial. However, it seems to me that Mr Tam QC is correct in submitting that, whatever the view of the CCRC, the Court of Appeal was entitled to find (as it did at paragraphs 29 of the judgment) that all the material (apart from two irrelevant forensic experts reports) had been available to the defence in the undisclosed material. Secondly, Mr Owen placed broad reliance on what the Court of Appeal accepted was the deprivation of the Claimants right to a fair trial. However I am not persuaded that this point adds significant weight to his argument on the other points.
49. For these reasons I would dismiss the claim.

Lord Justice Maurice Kay :

50. I agree.