England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2009

Lord Justice Leveson:

1. On 29^th July 1999, following a trial in the Crown Court at Leeds, the Claimant John Siddall was convicted by majority verdict of two offences of indecent assault in relation to RW and offences of indecent assault and indecency with a child, PW; he was acquitted of three offences of indecent assault in respect of a third girl JF. He was sentenced to a total of four years imprisonment and his subsequent application for leave to appeal against conviction was refused. On 10^th August 2000, he applied to the Criminal Cases Review Commission ("CCRC") who, on 8^th December 2004, referred his convictions and those of Ian Brooke (who had been convicted of offences in relation to RW and a fourth girl AMS) to the Court of Appeal (Criminal Division) ("CACD"). Following a hearing over two days on 23^rd and 24^th May 2006, on 15^th June, the CACD quashed the convictions both of Mr Siddall and Mr Brooke ([2006] EWCA Crim 1353).
2. By letter dated 22^nd January 2007, Mr Brooke applied to the Secretary of State pursuant to section 133 of the Criminal Justice Act 1988 ("the 1988 Act") for compensation for wrongful conviction. On 8^th May 2007, the Home Secretary decided, without admission of liability, to make payment to him and (in accordance with the usual practice) consulted an Assessor to determine the amount to be paid.
3. Thereafter, on 12^th June 2007, Mr Siddall also applied to the Secretary of State. This was considered on behalf of the Secretary of State for Justice (to whom this responsibility had by then devolved and to whom I shall refer as the Justice Secretary"). By letter dated 3^rd March 2008, the claim was rejected in these terms:

"While he [the Justice Secretary] accepts that Mr Siddall's convictions were reversed on the basis of a new or newly discovered fact, he is not of the opinion that they were reversed 'on the ground that a new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice'. In particular, he does not think that it is beyond reasonable doubt that your client has suffered a miscarriage of justice, in the sense that he should not have been convicted (see the speech of Lord Bingham in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, as applied in R. (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), R. (Harris) v Secretary of State for the Home Department [2007] EWHC 3218 (Admin) and Re Boyle [2007] NIQB 88)."

4. With the leave of the single judge, Mr Siddall challenges that decision primarily on the grounds that he should not have been convicted and that his case falls fairly and squarely within Lord Bingham's approach, but also on the separate basis that the Justice Secretary provided insufficient reasons why he had not been so accepted (especially having regard to the acceptance of Mr Brooke's claim) and that, in the absence of any reasonable justification, it was irrational and unlawful to treat the two cases differently. In argument, it was accepted that this essentially boiled down to the two issues - whether the case fell within Lord Bingham's approach and, even if it did not, whether it was unlawful to treat the two cases differently.

The Factual Background

5. Mr Siddall was employed in the 1980s as an unqualified full time care worker at Rivendell Children's Home, operated by Kirklees Local Authority, West Yorkshire, which catered for vulnerable and emotionally damaged children. On 2-3 nights a week, he was required to sleep on the premises in a staff room equipped with both desk and bed.
6. It is sufficient briefly to set out the allegations in relation to each of the three complainants in Siddall's case. First, JF (who was 27 at date of trial) was at Rivendell from June 1985 to January 1986 when she was aged 15. She admitted that she regularly ran away from the home. She described three instances of indecent touching but the judge withdrew the first count from the jury and the jury were unable to agree on the two remaining counts. In the result, on the Judge's direction, not guilty verdicts were returned on all three counts.
7. RW (who was 28 at date of trial, and had first started making disclosures to the police about sex abuse in December 1996) was at Rivendell from October 1985 until May 1986 when aged between 13 and 14. She provided a 40 page statement dated 19th December 1996 setting out a catalogue of abuse she had suffered from the age of 7. In her evidence she said that she had been placed in local authority care after suffering sexual abuse by a member of her family. On one occasion she had been naughty and was told to go to the upstairs staff room. Mr Siddall had kissed and cuddled her. He locked the door and the next thing she remembered was lying on his bed and having sex with him with him on top of her. This was the subject of an allegation of indecent assault (presumably because of the potential difficulty of proving the absence of consent). The second incident of sexual intercourse also took place in the upstairs staff room. In total he had sex with her either 3 or 4 times but she was not sure. The incidents always took place when he stayed over in the staff room bed, and probably occurred over a 4-5 week period before she was moved from Rivendell to another home called Westfields for assessment.
8. Finally, PW (who was 25 at date of trial) arrived at Rivendell in December 1987 when she was aged 13 years. The two other complainants RW and JF had left by that time and there was no contact between them. She recalled one occasion when at around 3.00 am she had a really bad headache and went crying to the downstairs staff room to ask for tablets. She sat down opposite the appellant and he made a lewd or rude suggestion and said that she could smoke confiscated cigarettes if she played with his penis. She did not at first but then felt as though she had to, doing so for about ten minutes. She gave further evidence that, during this incident, the appellant was squeezing her breast through her pyjama top. These were the indecency and indecent assault allegations.
9. In March 1997, following the complaint made by RW, Mr Siddall was arrested. When interviewed then, and subsequently, he denied all the offences. In evidence, he repeated these denials saying that he could not remember any of the complainants. The only memory he had was of going to the police station with RW following her complaint that she had been raped by, apparently, two taxi-drivers outside Rivendell. He would not have touched JF indecently. The most he would do was to pat a child's head to reassure them. He certainly never touched a child on the bottom and agreed that it would be inappropriate to touch a child's thigh. He was not normally a very tactile person. All three women were lying. He could not think of any reasons why they would want to make up allegations against him. These were the issues that the jury had to resolve.
10. Meanwhile, the police were pursuing similar enquiries against Ian Brooke in relation to allegations of sexual abuse in 1986 both in relation to RW and a different girl AMS at a different residential facility, Westfields Assessment Centre. He was tried in April 2000, after Mr Siddall, and was acquitted of one count of indecent assault in relation to RW but convicted of two offences of rape and one of buggery in relation to her, and three offences of indecent assault and one of rape in relation to AMS.
11. After the appeal process had been concluded, both Mr Siddall and, later, Mr Brooke, sought the assistance of the CCRC. Mr Siddall advanced a number of complaints concerning the three alleged victims, the Crown Prosecution Service and the police investigation. Save in respect of the new material, these complaints were rejected. In particular, in relation to the police, it was alleged that they had withheld relevant information from the defence and failed to investigate the allegations properly. Although the CCRC went on to identify new material which it had obtained, it made clear that previous allegations of rape did not appear to have been disclosed to this police investigation and, as regards the complaint, concluded (paragraph 6.21):

"The Commission's review has uncovered no evidence of improper behaviour on the part of West Yorkshire Police in the manner in which they investigated the allegations made against Mr Siddall. In the absence of any such evidence, or leads for further investigation, the Commission has no basis on which to take this matter further."

12. As for the additional material which had been amassed by the CCRC, it was summarised by the CACD under four headings (at paragraph 23) as follows:

"(A) Allegations of rape made by RW but not disclosed by RW in the course of her disclosures to officers responsible for Operation Clyde (the relevant police investigation into incidents at Rivendell and Westfields) and Operation Care (another investigation in relation to a care home on Merseyside to which RW was subsequently sent). These allegations derived from information contained in contemporaneous records recovered by the CCRC (1) from Nugent Care Society files relating to RW's time at Clarence House in Merseyside which themselves contained information about RW's time at Westfields and (2) from Social Services files compiled in and around 1998 in connection with care proceedings relating to RW's children;

(B) Other information contained in these files;

(C) Information contained in applications to the Criminal Injuries Compensation Authority ("CICA") in relation both to Siddall and another person, this time at Clarence House, Wilfred Jollie who was tried in Liverpool in May 2001 but against whom the Crown decided to proceed no further as a result of RW's cross-examination;

(D) Allegations made, subsequent to trial, by JF of penetrative sex by Siddall, no such allegations having been made by JF during the trial of the counts of indecent assault of which Siddall was in any event acquitted."

13. Irrelevant for the purposes of the CACD but of potential significance for this application, a large part of this material in relation to RW was undoubtedly in existence prior to the trial; some of it, however, only came into existence subsequent to Mr Siddall's conviction, including a body of material relating to the allegations made against Mr Jolley (including RW's application to the Criminal Injuries Compensation Authority dated 16^th August 1999 and the evidence that she gave at his trial). The detail of the material which became available is described by the CACD [2006] EWCA Crim 1353 at paragraphs 26-30 and in relation to Mr Jolley at paragraphs 32-35.
14. The Court reviewed this material in some detail and considered the possible arguments that might have been deployed by both sides had this material been available for the trial. In particular, it accepted (at paragraph 32) that any one of the items of new material would not necessarily raise legitimate concerns about the verdict, while concluding that their cumulative effect did have an impact. Again, in relation to Mr Jolley, the Court observed that RW's conduct was not decisive, it was when considered cumulatively with the other matters, that it caused concern (paragraph 38).
15. The court also dealt with (and accepted) a criticism of the direction dealing with the delay in bringing the proceedings again referring to it "as one of those many points which, taken cumulatively, cause us concern about the safety of these convictions". Legal error, whenever identified, does not generate a claim under the 1988 Act; it is therefore important to underline that it was made clear that the inadequacy of this direction would not, on its own, have rendered the convictions unsafe.
16. Bringing all the features of the case in relation to RW together, the CACD expressed itself in this way (at paragraph 45):

"[W]e have decided that it is impossible for us to be certain that, if the full picture had been before the jury with a proper and careful direction, they would have convicted the appellant. On the basis of R v Pendleton [2002] 1 WLR 72 we have no option but to quash the convictions on counts 4 and 5 which relate to RW.

17. The substantive grounds pursued before the Court of Appeal concerned new material in relation to RW, but Mr Siddall had also been convicted of offences in relation to PW. Although there was no new material justifying an argument that there had been a failure to disclose facts relating to PW, it was argued that consideration had to be given to the effect of the judge's similar fact direction dealing with the issue of collusion which, unsurprisingly, invited them to consider the likelihood of similar allegations if satisfied that the complainants had not colluded was to impact on these verdicts. As to these convictions, the CACD concluded (at paragraph 46):

"In the light of the jury's inability to reach a verdict in relation to JF and the quashing of the verdict in relation to RW, we cannot think that the convictions relating to PW alone are safe and they will have to be quashed."

18. I must also deal with the position before the CACD in relation to Mr Brooke. This was somewhat different because, based upon the subsequent account of the events underlying these convictions which AMS provided to a forensic psychologist, the Crown did not even suggest that the convictions in relation to AMS were supportable. This left the allegations made by RW (subject to the new material) standing alone. As to his position, the Court observed:

"Many of the same considerations apply to Brooke's appeal. RW did not disclose that she had been abused by Brooke at Westfields until 1999. Her reason for withholding that disclosure at the time when she was disclosing abuse by Siddall was that Brooke's abuse was much worse and, indeed, the worst she had experienced. Brooke's defence team did not know that RW had in July 1998 used almost the same words to describe the abuse she had suffered at the hands of [a former partner]."

The Statutory Regime

19. In the light of the issues that have been canvassed before us, it is worthwhile traversing the history of this legislation. The background is best summarised by Lord Steyn in the case of R. (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 in these terms:

26.  Gradually a fundamental human right to compensation for miscarriages of justice evolved. The Universal Declaration of Human Rights (1948) made no provision for such a fundamental right. The European Convention on Human Rights and Fundamental Freedoms (1950) ["ECHR"] in its original form also did not contain such a provision. The American Convention on Human Rights, 1969, contained in article 10 a weak provision which left it to states to make suitable provision for compensation in accordance with law. The breakthrough came with the International Covenant on Civil and Political Rights ["ICCPR"].

27.  On 19 December 1966 the ICCPR was adopted by the General Assembly of the United Nations and opened for signature at New York. On 20 May 1976 the United Kingdom ratified the ICCPR. On 20 August 1976—three weeks after Mr Jenkins' statement—the required number of ratifications was attained and the ICCPR entered into force. Article 14 contained two relevant provisions, namely:

"2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

. . .

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him." (My emphasis)

From 1976 to 1985 the United Kingdom purported to fulfil its international obligations under article 14(6) under the extant ex gratia scheme."

20. Section 133 of the Criminal Justice Act 1988 is the consequence of international pressure to put these obligations on a statutory footing, the relevant parts of which are expressed in these terms:

"(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.

(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4) ….

(5) In this section 'reversed' shall be construed as referring to a conviction having been quashed-

(a) on an appeal out of time; or

(b) on a reference-

(i) under the Criminal Appeal Act 1995; or ..."

21. As Lord Steyn went on to observe, the language closely follows Article 14(6) with the word "conclusively" in the ICCPR being replaced wth the words "beyond reasonable doubt" in section 133(1) of the Act.
22. When the provision came to be analysed in Mullen, different views as to the meaning of the phrase "miscarriage of justice" emerged. While describing the ex gratia scheme which anteceded the legislation, Lord Bingham took what is described as a wider approach to the meaning of the phrase and said (at paragraph 4):

"The expression 'wrongful convictions' is not a legal term of art and has no settled meaning. Plainly the expression includes the conviction of those who are innocent of a 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. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases 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."

23. When dealing with the legislation itself, at paragraph 9(1) of his speech, he put the matter in this way:

"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 describes a concept 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. None the less, '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…But, again like 'wrongful conviction' it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted……"

24. Lord Steyn, on the other hand, took a narrower line. He made the point that neither the Protocol nor the legislation were designed to compensate all those wrongly convicted and, in particular, did not include those whose convictions were reversed following appeals brought in time or on a basis absent new evidence (see paragraph 45). Having referred to the French text, he cited as "of great persuasive value" the views of the Steering Committee for Human Rights appointed by the Council of Europe in its analysis of Article 3 of the Seventh Protocol of the ECHR which similarly requires compensation in effectively identical terms to Article 14(6) ["when ... conviction has been reversed ... on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice"] in these terms:

"The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be an acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge."

25. In keeping with the international meaning which Parliament adopted when it enacted section 133 of the Act, he concluded (at paragraph 56) that:

"... the autonomous meaning of the words 'miscarriage of justice' extends only to 'clear cases of miscarriage of justice in the sense that there would be acknowledgement that the person convicted was clearly innocent' as it is put in the explanatory report."

26. For the sake of completeness, I should add that there was no question of the claimant in that case asserting that he was innocent (as opposed to relying on the abuse of process whereby he was returned from Zimbabwe to the United Kingdom to stand trial which itself led to his conviction being quashed) and, on the narrow basis that there had been no failure or lack of fairness in the trial process and thus no miscarriage of justice within the meaning of the section, Lord Bingham concluded that he failed. The other members of the House agreed with Lord Bingham's conclusion so that resolution of the issue of the narrower and the wider interpretations of the phrase "miscarriage of justice" was not necessary for the decision. Thus, Lord Scott declined to express a concluded view upon which was correct; Lord Roger accepted the arguments advanced by Lord Steyn and Lord Walker having said that he would go no further than the limited ground for allowing the appeal advanced by Lord Bingham but said that Lord Steyn had set out powerful reasons for his conclusion as to the autonomous meaning of the expression 'miscarriage of justice'.
27. I have summarised the views expressed in Mullen because Mr Stephen Cragg (for Mr Siddall) relies heavily on the Justice Secretary's reference to the speech of Lord Bingham in that case; Mr Hugo Keith (for the Justice Secretary) points to the reference to that speech being modified by the following expression ("as applied in R. (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), R. (Harris) v Secretary of State for the Home Department [2007] EWHC 3218 (Admin) and Re Boyle [2007] NIQB 88)") to which Mr Keith now adds the decision of the Court of Appeal in Harris [2008] EWCA Civ 808. It is to these cases that I now turn.

Developments subsequent to Mullen

28. The first decision relied upon by the Justice Secretary as affecting what might otherwise be the interpretation placed upon Lord Bingham's enunciation of the test in Mullen is R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin). Mr Clibery had been convicted in 1998 of rape of his ex-wife. Subsequently, material became known which would have been usable to cast doubt upon the complainant's general credibility: that material included a lie which antedated the trial and a number of lies told to the County Court and various agencies subsequent to the trial. On a reference to it by the CCRC, the CACD quashed the conviction on the grounds that it was unsafe. The defendant's subsequent application for compensation under section 133 was refused by the Home Secretary and the refusal was challenged by application for judicial review.
29. Lord Phillips CJ referred to paragraph 4 of Lord Bingham's speech, set out above, and explained it in these terms (at paragraph 25):

"Lord Bingham ...considered two different situations, each of which he considered fell within the description of 'miscarriage of justice' in section 133 of the 1988 Act. The first is where new facts demonstrate that the claimant was innocent of the offence of which he was convicted. In such circumstances, it is possible to say that if the facts in question had been before the jury, he would not have been convicted. The second is where there were acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was 'wrongly convicted'. In such circumstances it is appropriate to say that the claimant should not have been convicted. This is the situation that Lord Bingham had in mind when he spoke of someone who should not have been convicted."

30. Explaining his approach in the context of the case then before the court, Lord Phillips CJ went on:

"26. It is the claimant's misfortune that he is unable to bring himself within either of the categories of miscarriage of justice to which Lord Bingham [in Mullen] referred. Miss Williams has accepted that it is not possible to demonstrate beyond reasonable doubt that he was innocent of the offence of which he was convicted. The most that can be said is that if the jury had had advance notice of the lies that the complainant told after her husband's trial they might not have convicted him. It is a matter of speculation whether such knowledge would have resulted in a different verdict……. [Lord Phillips' emphasis].

27. Miss Williams argued that there had been a 'serious failure of the trial process' such as to bring this case within Lord Bingham's second category of miscarriage of justice. This is manifestly not the case. There was nothing that went wrong in the investigation of the offence or the conduct of the trial, let alone seriously wrong. All that occurred is that the complainant's conduct after the trial raised doubts about her credibility. Such a situation does not fall within Lord Bingham's second category"

31. This decision was followed by R. (Allen, formerly Harris) v. Secretary of State for Justice [2007] EWHC 3218 (Admin) at first instance (to which the Justice Secretary referred) and [2008] EWCA Civ 808, [2009] 1 Cr App Rep 2 on appeal. The claimant's son had died while in her sole care and was found to have suffered "a triad of injuries consisting of brain damage, subdural bleeding and retinal haemorrhages", said at the trial to be either diagnostic or very strongly suggestive of non accidental head injury. The claimant was convicted of manslaughter, the conviction been quashed some five years later after advances in medical thinking cast doubt on the view that the triad necessarily led to the diagnosis of non accidental injury.
32. Mitting J referred to Lord Bingham's focus (at paragraph 4) on those who, whether guilty or not, should clearly not have been convicted because "something has gone wrong in the investigation or at trial". He described them as cases involving miscarriage of process to be contrasted with cases in which new evidence showed conclusively that there was a miscarriage of justice (described as evidential miscarriage). In this latter type of case, it was acknowledged that he was bound by Clibery, so that new evidence which did no more than demonstrate a doubt about guilt was not enough. Mitting J left open (because it did not arise in the case) whether a claim would arise if the new material should have led the judge to withdraw the case from the jury.
33. In the Court of Appeal, admittedly after the decision of the Justice Secretary in this case, a challenge was mounted to the decision in Clibery. Hughes LJ (with whom the President of the Family Division and May LJ agreed) analysed Lord Bingham's speech in Mullen and the dichotomy of views between Lords Bingham and Steyn but went on (at paragraph 26):

"[I]t is plain that the critical feature of the extended interpretation of 'miscarriage of justice' which [Lord Bingham] was prepared to contemplate is that "something has gone seriously wrong in…..the conduct of the trial": see the concluding words of paragraph 4. That is made the plainer by his references to a defendant who "should clearly not have been convicted" (paragraph 4) and "certainly should not have been convicted" (paragraph 9(1)) [my emphasis]."

34. As for the case then being considered, he concluded:

"In the present case there was nothing which went wrong with the conduct of the trial, whether seriously or otherwise. In speaking of 'flawed expert evidence' it is clear that Lord Bingham cannot have been contemplating evidence which was conscientiously given and based upon sound expertise at the time of trial. The most that could be said against the expert evidence given at this trial is that it might need adjustment in the light of new medical research and/or thinking. In any event, the medical evidence given at time of trial has not been demonstrated to be flawed, even in this limited sense. As the passages from the judgment of the CACD which I have cited show, this court's decision went no further than to say that the differences of medical opinion needed to be resolved by a jury."

35. It follows that, at the very least, the proper construction of Lord Bingham's observations should focus on whether there is anything that has "gone seriously wrong in the course of the trial" described by Lord Phillips as "acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was 'wrongly convicted'". Lord Bingham's examples make that clear: all imply serious fault on the part of the investigator or prosecutor which is deliberate. That is certainly so for his examples of fabricated or perjured evidence and evidence potentially helpful to the defence concealed or withheld. As Hughes LJ in Harris made clear, flawed expert evidence does not mean evidence conscientiously given and based on sound expertise. Further, this is entirely consistent with the description of this category by Mitting J as miscarriage of process.
36. Somewhat out of line with these authorities – and further restricting Lord Bingham's dicta so as to reduce dramatically the difference between him and Lord Steyn – is the third case mentioned by the Justice Secretary, namely the decision of Weatherup J in re Boyle [2007] NIQB 88. This case concerned a quashed conviction which had relied upon challenged admissions which two police officers asserted were recorded contemporaneously in written notes of interviews. In relation to one of these interviews in which the admissions were recorded, ESDA testing revealed that there had been another version of the notes thereby undermining the evidence that they had been written at the time. In quashing the conviction the Court of Appeal had said that they "simply could not say at this stage that the judge would necessarily have reached the same conclusion if he had known of the rewriting of the interviews and the matter had been pursued in evidence before him". Weatherup J rejected the submission that the case fell within Lord Bingham's wider ground, saying (at paragraph 25):

"In the present case, the applicant contends that there has been a failure in the trial process. On Lord Bingham's approach a "miscarriage of justice" arises not only where it has been demonstrated that the applicant is innocent, which is not the present case, but also where the applicant should not have been convicted. However the new or newly discovered facts referred to above do not establish that the applicant "should not" have been convicted. As Carswell LCJ stated in quashing the applicant's conviction ... the new or newly discovered facts rendered the conviction unsafe because the Court of Appeal could not determine what view the trial Judge would have taken of the evidence had he known that it appeared that there were two versions of the interview notes for interview five. The trial Judge might have taken the view that it had fatally undermined the credibility of the interviewers and removed the evidence from the area of proof beyond reasonable doubt to some lesser area, or he might have said that he nevertheless accepted that the evidence was reliable in substance and that the interviews reflected what was said. All that can be said is that the trial Judge may or may not have convicted the applicant had he known what is now known. Accordingly as in Magee's Application and in Clibery, the applicant does not satisfy Lord Bingham's wider interpretation of "miscarriage of justice" as an applicant in respect of whom it has been established that he "should not" have been convicted."

37. With great respect to Weatherup J, although he refers to Clibery, I do not understand how his analysis fits with Lord Phillips' inclusion, within Lord Bingham's wider definition, of acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial such that it is possible to say that he was 'wrongly convicted' and appropriate to say that he should not have been convicted. Suffice to say that if the Justice Secretary was entitled to rely on this explanation of Lord Bingham's dictum, there is no question but that he was entitled in this case to reach the conclusion that he did.

Does Mr Siddall's claim qualify?

38. Although Mr Cragg poses the first ground of this application as the proposition that the Justice Secretary should have concluded that Mr Siddall's case fell within the second 'limb' of Lord Bingham's approach, I prefer to address the underlying issue of whether the claim qualifies by considering not only the question posed but also, if the Justice Secretary erred, what the true meaning of the section 133 is in the light of the developed case law on the basis that if on the facts found the claim simply does not qualify, there is no purpose to be served in sending it back to him for further consideration.

The Second Limb of Lord Bingham's analysis

39. Mr Cragg submits that as the Justice Secretary has purported to apply the test promulgated by Lord Bingham and accepted that the convictions were reversed on the basis of a new or newly discovered fact namely material useful to undermine the credibility of RW which was in existence before the trial, the case is distinguishable both from Clibery and Harris both of which were concerned with material which only manifested itself subsequent to the trial. He further argues that had there been a proper investigation at the time, manifestly false allegations made by the victim would have been revealed and the prosecution would not have continued, pointing to the ability of the CCRC to discover the material upon which the CACD later relied. Thus, there was a serious failure in the trial or investigation process and no basis for rejecting Mr Siddall's claim particularly bearing in mind the different approach to the claim made by Mr Brooke.
40. Mr Keith challenges the proposition that there was a serious failure in the process of investigation or the trial. He points to the rejection by the CCRC of the complaint of improper behaviour on the part of the West Yorkshire Police, underlining that one of the complaints specifically concerned withholding relevant information from the defence and failure to investigate the allegations properly. On the contrary, the CCRC confirmed that the material which was in existence was not disclosed to the investigation into West Yorkshire care homes.
41. It is clear that in conducting an investigation, an investigator should pursue all reasonable lines of inquiry whether pointing towards or away from a suspect (see paragraph 3.5 of the Code of Practice under Part II of the Criminal Procedure and Investigation Act 1996). Relevant information must be recorded (para 4.1), retained (para 5.1), listed in a schedule for disclosure (para 6.6), given to the prosecution (para 7.1) and, in appropriate circumstances, disclosed to the accused (para 10.1). There is no doubt that material which might go to the credit of a prosecution witness falls within this regime and failure to disclose such material can undermine the safety of a conviction (see, for example, R. v. Craven [2001] 2 Cr App Rep 12). On the other hand, there is no obligation to give disclosure of material that has not been obtained and the failure to obtain all material that might impact on a trial does not, of itself, necessarily reveal a failure (or serious wrong) in the investigation of the offence.
42. In the circumstances and particularly in the light of the CCRC's conclusion about the investigation, I do not accept that the failure to identify and disclose matters that could have been made available to challenge the credibility of RW demonstrates that there has been a serious failure akin to concealment or withholding of evidence such that "something has gone seriously wrong in the investigation of the offence or the conduct of the trial". Neither do I consider that Clibery can truly be distinguished. In that case, one of the features placed before the CACD was a lie told before the trial (alongside a number told subsequently). In this case, although most of the information relied upon by the CACD was available before the trial, some of it (particularly in relation to Mr Jolley) was not: it would be absurd and entirely artificial to require the Justice Secretary to determine the issue of entitlement to compensation for miscarriage of justice on the basis that only if new evidence available prior to the trial is sufficient to undermine the safety of a conviction would Lord Bingham's second limb be satisfied.
43. Mr Keith also argues that even if Clibery is distinguishable on the facts, that is not a proper basis for concluding that the Justice Secretary was irrational in his approach. The issue for him was whether there had been a serious failure in the investigation process or at trial, not whether the new facts had been in existence at the time (whether or not known to the defence). I agree. To no small extent, the compensation scheme is already artificial: it excludes those acquitted at trial or on initial appeal (even with new evidence) along with those acquitted perhaps because of a change in the law. It is not immediately obvious why those within the scheme are more deserving than those not included. In my view, it is critical that the scheme should not become even more artificial than it already is.

The true meaning of s. 133

44. That brings me to the wider question of the meaning of s. 133 of the 1988 Act and the resolution of the dichotomy between Lord Bingham and Lord Steyn. On this issue, in Harris, the unanimous view of the Court of Appeal was clear. Having acknowledged that Lord Bingham's proposition found support in ordinary parlance and had initially attracted him, Hughes LJ said (at paragraph 40):

"However, on reflection, ... I have become convinced that ordinary parlance cannot yield the correct construction of section 133. The reasons which lead me to that conclusion are largely those very clearly set out in the opinion of Lord Steyn in Mullen and there is no occasion for me to attempt to re-state them. I mention as briefly as I can some additional factors which have thus persuaded me:

i) I do not myself think that ordinary parlance can be a reliable guide to the meaning of an expression found in an international treaty, at least when it is an expression which can mean a great variety of things to different people in different circumstances. For some, it would embrace every defendant whose conviction is quashed, on whatever grounds, who may be said to have suffered a miscarriage of justice in the sense of an unsafe conviction, but it is clear that section 133 cannot mean this. Lord Bingham's reference in paragraph 4 of his speech in Mullen (cited above at paragraph 24) to judicial misdirection provides an example of exactly this difficulty. One would not ordinarily, as it seems to me, categorise as a miscarriage of justice every case in which a conviction is quashed by the Court of Appeal on grounds of some misdirection by the trial Judge. Nor, as it seems to me, would one speak of every such case as involving something going seriously wrong with the conduct of the trial. Unless, therefore, some method is to be found of distinguishing those misdirections which amount to something going seriously wrong with the trial from those which merely justify a conclusion that the conviction is unsafe, resort to ordinary parlance cannot provide the necessary test. Moreover, a misdirection case would not ordinarily be within section 133 in any event, because the appeal would not depend on any new or newly discovered fact.

ii) It follows that unless the correct construction is Lord Steyn's I cannot see where the meaning of 'miscarriage of justice' can logically, or even sensibly, stop short of every case of appeal allowed on grounds of new or newly discovered fact.

iii) Whilst I agree of course that the CACD does not ordinarily address the question of guilt or innocence, but only the safety of the conviction, those cases where the innocence of the convicted defendant is genuinely demonstrated beyond reasonable doubt by new or newly discovered fact will be identifiable in that court and the judgment will, in virtually every case, make plain that this is so. Accordingly I respectfully part company from with the view expressed by Schiemann LJ, when Mullen was in the Court of Appeal, that the approach of the CACD makes the operation of section 133 difficult or unworkable unless a broader definition of miscarriage of justice is adopted. On the contrary, as it seems to me, the operation of the section poses very real difficulties if the broader definition is adopted, for then it becomes necessary to ask in every case of conviction quashed on grounds of fresh evidence whether it satisfies the section 133 criterion of miscarriage proved beyond reasonable doubt or is merely a case of doubt raised to the extent that the conviction is unsafe. If, however, miscarriage of justice means the establishment of innocence beyond reasonable doubt, there will usually be no difficulty in those cases being apparent from the judgments of the CACD.

iv) Cases in which police or similar malpractice is established beyond reasonable doubt will ordinarily give rise to irresistible claims for compensation under the ordinary law of tort, even if innocence is not conclusively demonstrated.

45. For my part, I would adopt the approach of Lord Steyn and the reasoning of Hughes LJ. This case provides further reasons. First, some of the material upon which reliance was placed before the CACD undeniably was in existence prior to the trial; other material only came into existence thereafter. If, as Harris decides, Clibery is correct, only the impact of the former material would have to be considered and, as I have sought to explain, the Justice Secretary would be placed in the almost impossible decision of deciding whether that material, on its own, would have been sufficient to undermine the safety of the conviction in the face of the conclusion of the CACD that it was all the material, taken together, which brought the Pendleton test into operation.
46. Secondly, what "went wrong" in relation to the PW convictions did not directly relate to new evidence but only to the effect of the similar fact direction which allowed the jury to have regard to their assessment of RW (potentially flawed because of the new material) when considering the credibility of PW. I am not suggesting that the new facts are not relevant but only that it is rather more difficult to say that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice such that Mr Siddall should not have been convicted of the PW offences. It is sufficient to indicate the consequence that the problem of artificial distinctions becomes even more acute.
47. Finally, at one level, Lord Bingham's second limb would not today necessarily lead to the same decision should similar circumstances to Mullen arise. The reasoning behind the rejection of Mr Mullen's claim as expressed by Lord Bingham (at paragraph 8), Lord Scott (at paragraph 65) and Lord Walker (at paragraph 70 going no further than the limited ground for allowing the appeal identified by Lord Bingham) was that although he had been the victim of a gross abuse of executive power, there had been no failure in the trial process. Lord Steyn, on the other hand, expressed the view that there had been such a failure, observing (at paragraph 57) that:

"...the circumstances in which he was deported from Zimbabwe were deliberately concealed from him before and at his trial. If they had been disclosed the trial would have been stopped."

48. Going back to Lord Bingham's formulation that it is sufficient if "something has gone seriously wrong in the investigation of the offence or the conduct of the trial", the present law is clear. The Attorney General's Guidelines, Disclosure of Information in Criminal Proceedings must be followed "scrupulously" and require disclosure of material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused (see paragraph 8). Further, paragraph 10(b)(ii) makes it clear that material can fulfil this disclosure test by its capacity to support submissions that could lead to a stay of proceedings. Section 7A of the Criminal Procedure and Investigations Act 1996 (reflected in paragraph 17 of the Guidelines) imposes a continuing duty upon the prosecutor: it is thus inconceivable that failure by investigator or prosecutor to disclose Mullen type circumstances should not be characterised as something seriously wrong in the conduct of the trial if not the investigation. None of the speeches in Mullen analyse the obligations placed upon the prosecution at the time (the Guidelines for the disclosure of unused material being far more restrictive: see (1982) 74 Cr App Rep 302, Archbold 43^rd edn 1988 at para 4.178) and it is unnecessary further to research the point: this feature does, however, demonstrate the additional need to justify an approach wider than that suggested by Lord Steyn.
49. In the circumstances, if I am wrong in my interpretation of the Lord Bingham's second limb, I would in any event conclude that a true analysis of the law is in any event less favourable to Mr Siddall; it is not suggested that he could establish beyond reasonable doubt that he was clearly innocent thereby bringing himself within the approach advocated by Lord Steyn.

Unequal Treatment

50. The other main ground advanced by Mr Cragg concerned the unequal treatment between Mr Brooke and Mr Siddall. In his skeleton argument, he submits that:

"… it is irrational and unlawful for the [Justice Secretary] not to accept him onto the miscarriage of justice scheme when he has already allowed Mr Brooke, whose conviction was quashed by the Court of Appeal at the same time as the Claimant's conviction was quashed (and on the basis of the same newly discovered facts), onto the scheme, and there is no discernible difference between the two cases."

51. He argues that the similarity of reasoning of the CCRC is striking and the conclusions are "identical or almost identical" and he relies upon another aspect of the decision in Re Boyle (supra), in which Weatherup J summarised this aspect of the law in this way:

"[28]      The principle of equal treatment is well recognised in administrative law. Having quoted Sir John Donaldson MR in R (Cheung) v. Hertfordshire County Council [1986] that "It is a cardinal principle of good public administration that all persons who are in a similar position should be treated similarly" Girvan J in Re Colgan's application (1996) NI 24 stated at page 44 –

"A decision which results in an unjustifiable inequality of treatment is open to challenge on the ground of unreasonableness since if there is no logical difference between two situations justifying a differential treatment, logic and fairness require equality of treatment."

[29]      De Smith, Woolf and Jowell in Judicial Review of Administrative Action 5^th Edition at paragraph 13-036 describe two aspects of formal equality. The first aspect is a consistent application and enforcement of the law in the interests of legal certainty and predictability. The other aspect is that of ensuring that all persons similarly situated will be treated equally by those who apply the law and this aspect is stated to be the central aim of formal equality."

52. In reply, Mr Keith submits that it was on 8^th May 2007 that Mr Brooke's application was approved, that is to say before the decision in Clibery (30^th July 2007) or Harris at first instance (10^th December 2007) both of which impact on the proper construction of Lord Bingham's formulation. He argues that the Justice Secretary was entitled to take developing jurisprudence into account which was a feature accepted by Weatherup J who went on to say (at paragraph 32):

"If similar cases are treated differently then that is unreasonable unless it can be justified by the decision maker. The three cases … are similar to the present applicant. The different treatment requires justification. In the interpretation of legislation a decision maker with the benefit of legal advice is entitled to alter his approach to the statutory provision, subject to the legality and reasonableness of the new approach (in the wider sense of making a rational decision on the basis of relevant considerations) and the requirements of procedural fairness. In the present case, the approach to the interpretation of s. 133 of the 1988 Act was altered in the light of legal advice that took account of developing jurisprudence. A review of the previous approach was a step which the Secretary of State was entitled indeed obliged to undertake. A change of approach to the statutory provision was something the Secretary of State was entitled to undertake. The change that was undertaken has not resulted in an approach which could be treated as unlawful or unreasonable or procedurally unfair."

53. Furthermore, O'Brien v. Independent Assessor [2007] UKHL 10, [2007] 2 AC 312 (which concerned a change of approach to the deduction of compensation for board, lodging and personal living expenses while in custody) makes it clear that this is so even if it means that a previous applicant has been treated more generously than strictly required because although it is a facet of justice that like cases should attract like amounts:

"…it is only one facet, and the imperative of consistency may have to yield to the larger imperative of justice in the particular case achieving a result which is proper and fair to the interests of both payer and recipient." (per Lord Carswell at para 88)

54. In his letter, the Justice Secretary made it clear that he was referring to the speech of Lord Bingham "as applied" in the later cases. Mr Cragg accepted that he was entitled to take the view that Lord Steyn's view should now be preferred and he recognised the impact of the decision of the Court of Appeal in Harris. In my view, the Justice Secretary was doing no more than he was entitled to do and although he might have elaborated more particularly on the view that he was taking of the recent cases, I do not consider that his failure to do so renders his approach either unlawful or irrational.
55. In any event, I do not consider that the two cases are truly parallel. Whereas I recognise that the same witness (and the same undisclosed material) was relevant to both, the impact upon the question of miscarriage of justice is different. In Mr Brooke's case, once the Crown abandoned any reliance on the convictions in relation to AMS, all that was left was the credibility of RW impugned not only by the new facts but also, presumably, by a similar fact direction based upon the complaints (now discredited) of AMS. In the case of Mr Siddall, the convictions in relation to PW were not impugned by any new fact but undermined only by the similar fact direction consequent upon the complaints of RW. The fact that the same witness (RW) was involved in each is not to the point.

Other Grounds

56. The two remaining grounds were both described by Mr Cragg as subsidiary. The first concerned the extent to which the Justice Secretary should have carried out his own assessment as to whether Mr Siddall "should not have been convicted" rather than relying on the decision of the CACD. This is answered by the observations of Hughes LJ in paragraph 40(iii) of his judgment in Harris (at paragraph 44 above). In any event, it is important to make the point that there will have been available to the CACD (and, presumably, the Justice Secretary) the fruits of no fewer than four investigations: the original police investigation, the trial (and any appeal), the CCRC report and the views of the CACD. I would not support the suggestion that he need embark upon any further assessment of the position, itself likely to be open to yet further challenge.
57. The final ground concerned the argument that the Secretary of State should have considered whether the case would have been withdrawn from the jury had the new material come to light earlier: this prospect was left open as arguable by Mitting J in Harris at first instance. For my part, I do not find this approach helpful whatever test is applied: if the fresh evidence reveals beyond doubt that there has been a miscarriage of justice, the terms of the statutory test are met. In any event, in this case, the argument is not available for two reasons. First, the fact that the CACD relied upon the Pendleton test (and their observations in the judgment) made it clear that there was a case which (even had the material come to light at trial) could properly have been left to the jury to consider. Secondly, there is nothing to suggest that even had the complaints of RW been withdrawn, the jury would not have been entitled to consider the complaints of PW.

Conclusion

58. In the circumstances, I would dismiss this application for judicial review. In my judgment the Justice Secretary was entitled to reject the request for compensation notwithstanding that the Secretary of State who considered Mr Brooke's claim admitted it.
59. Having said that, I would not like to leave this case without making one thing very clear. In order to understand the background to the application for compensation under the 1988 Act, the challenge to the decision of the Justice Secretary and the impact of the legislation, it has been necessary to rehearse the facts in some detail and then to seek to fit the facts into the legal framework. The fact that this claim fails is entirely based upon the restricted nature of the scheme for compensating those who suffer miscarriages of justice. A different system might compensate all those acquitted of crime, irrespective of the need for new evidence or proof of miscarriage of justice beyond reasonable doubt. It is, however, important to underline that nothing in this analysis is intended to undermine, qualify or cast the slightest doubt upon the effect of the decision of the CACD: Mr Siddall is presumed to be and remains innocent of the charges that were brought against him.

Mr Justice Sweeney: I agree.