England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		11th June 2010

Mr Justice Nicol:

1. This is a renewed application for permission to apply for judicial review of a decision of the Criminal Cases Review Commission to refuse to refer the claimant's conviction to the Court of Appeal.
2. On 5 October 2006 the claimant was convicted of the murder of Miss Lorraine Jones. The conviction was at Mold Crown Court before HHJ Rogers and a jury. The co-defendant, Mrs Kathy Williams, was also convicted of the same murder. The claimant was sentenced to life imprisonment with a minimum term of 30 years.
3. On 9 November 2007 the claimant's appeal against conviction and sentence were dismissed by the Court of Appeal. On 26 November 2007 the claimant applied to the CCRC to refer his case back to the Court of Appeal. The Commission is established under the Criminal Appeal Act 1995. Under section 9 of the Act the Commission is empowered to refer to the Court of Appeal the conviction of any person convicted of an offence on indictment in England and Wales. Such a reference is then treated by the court for all purposes as if it were an appeal by the defendant against his conviction. The conditions for the Commission to make such a reference prescribed by section 13 of the 1995 Act. That says:

"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,

(b) the Commission so consider—

(i) in the case of a conviction, ... because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it…

(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(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."

4. On 3 December 2008 the Commission gave its provisional view that it would not refer the matter to the Court of Appeal. Following that provisional view the claimant changed his solicitors, and a number of further representations were made to the Commission. These were considered by the Commission, but on 16 November 2009 it refused to make a reference. The claim for judicial review was issued on 12 February 2010. Permission was refused on the papers by Langstaff J on 9 April 2010.
5. The Crown's case, in summary, was that the claimant and Mrs Williams had together murdered Lorraine Jones on the night of 15 June 2005. The claimant and Mrs Williams ran what are known colloquially as cutthroat defences, that is that both alleged that the other was exclusively responsible for Mrs Jones' death. At the time of Mrs Jones' death all three were living together, all were alcoholics and had been drinking heavily on that night. The prosecution alleged that between them the claimant and Mrs Williams had beaten Mrs Jones following a fight or some disagreement. She had been left outside the building where the apartment was that they had shared, though she was still alive. The next morning the prosecution said the claimant had brought her back into the flat which they had shared. She had probably died a short time later. Her body was then partially stripped so that it was nearly naked and it was dumped some miles distant.
6. The arguments put forward to the Commission on behalf of the claimant were many and varied. The Commission's final response responded to them with a decision letter which ran to some 38 pages. The original grounds for judicial review were four. They alleged that the Commission failed to deal with the essence of the arguments advanced such that the reader could not know why they had been rejected. The decision, it was said, was based on assumptions as to facts which were false; the decision was based on conclusions which were not reasonably supported; and the Commission failed to make a relevant inquiry.
7. Rejecting those grounds Langstaff J said this :

"The CCRC has a judgment to make. In any case there will necessarily be arguments that it should exercise it in favour of referral just as there will be arguments to the contrary. Unless it is plain that the judgment made overall not to refer is plainly wrong or clearly takes into account material which had not been, or failed significantly to take account of matters which it should have done, that judgment will not be set aside on application for review. The reasons given here by the CCRC deal appropriately with the points raised by the claimant and no judge with experience in the Court of Appeal Criminal Division would consider them plainly wrong or flawed, as set out above. Although the claimant will inevitably be disappointed there is no proper ground for a court to interfere in this case."

8. This morning Mr Milnes on behalf of the claimant has reduced the grounds on which he says permission to apply for judicial review should be granted to the first of the points which originally were included in the claim form. This needs to be explained in a little more detail. There was CCTV footage available on 15 June, that is the day preceding the night on which the attack on Ms Jones took place. That showed the claimant and showed something at least of the clothes that he was wearing. The remaining ground for seeking judicial review concerns the existence of CCTV footage for the following day,, that is the 16 June, some time during the middle of the day, which it is said shows the claimant wearing the same clothes that he had had on the previous day, those clothes not showing any signs of blood stains. The argument is that this second CCTV footage was not, but should have been, shown to the jury in which case it might have had an impact on their verdict.
9. Because this argument involved a criticism of the way in which the trial counsel for the claimant had conducted the trial, the Commission could properly insist that it would not be able to consider it unless the claimant waived his legal professional privilege and the trial counsel was given the opportunity to comment on those criticisms. That was the procedure that was followed here, and in paragraph 110 of its decision the Commission reports what trial counsel had to say about this criticism. The response included these remarks:

(checked to audio as not able to be obtained from court or CCRC)

"The central problem with the case from the defence perspective was that Mr Reed accepted he was present in the small flat at the time of the murder which the prosecution said must have been a long drawn out and bloody affair, but said that he slept through it all. In the morning he helped to move the body which was hidden many miles away in the Welsh mountains. There then followed an extensive clean-up operation to remove forensic traces. Clothes were disposed of over a wide area. The trial issue as to what happened to all the clothes and who did what was essentially an issue between the co-defendants affecting the credibility of each. As I recall, Mr Reed emerged ahead on this comparison because he was able to take police to find certain garments whereas Mrs Williams led them on a wild goose chase after which nothing was recovered. However, as far as the prosecution were concerned this dispute between the defendants was of only passing interest as it all helped to demonstrate the case of joint enterprise, both defendants covering their tracks after the murder. Mr Reed's case was that he did this only out of misguided loyalty for his co-defendant. The prosecution and his co-defendant called a considerable amount of evidence to the effect that Mr Reed had been violent towards his co-defendant over the years and was in fact the dominant partner. Mr Reed now claims that he was not allowed to put his case forward at the trial in the best way possible because we ignored evidence that was available to us and completely failed to mention his clothing during evidence in chief. I am confident that we did not fail to adduce any relevant evidence from Mr Reed nor did we deliberately ignore any evidence for any tactical reason."

10. The next paragraph is emphasised by the Commission:

(checked to audio)

"In a case where there had been a substantial time interval between the killing and the discovery of the body and that time had been used to hide or destroy traces of evidence, defence arguments about an absence of forensic contamination on particular clothes have a limited significance [end of emphasis].

Indeed one of the points that we made in closing was that it was unlikely that the mark on the deceased would have been by Mr Reed's boot recovered from the flat because he would have been bound to have disposed of them if it had been connected with any assault on the deceased."

11. The Commission then comment that a considerable latitude is left to trial counsel in the way in which the trial is to be conducted. There are obvious qualifications in terms of the decision whether or not to plead guilty and whether or not the client should give evidence. Ultimately those are matters on which the client's view must prevail, but otherwise it is left to counsel as to how to conduct a defence.
12. The Commission concluded in this way at paragraph 113 of its letter:

(checked to audio)

"The Commission believes that the Court of Appeal would not find defence counsel's approach to the clothing issue to have been unreasonable or such as to have had an effect on the fairness of the trial and the safety of the conviction. In particular because, as counsel highlights, Mr Reed helped them with the body, the trial issue as to what happened to all the clothes and who did what was essentially an issue between the co-defendants affecting the credibility of each. Mr Reed emerged ahead on this comparison. As far as the prosecution were concerned, this dispute between the defendants was of only passing interest as it helped to demonstrate the case in joint enterprise and where there had been a substantial time interval between the killing and the discovery of the body and that time had been used to hide or destroy traces of evidence, defence arguments about an absence of forensic contamination of particular clothes have a limited significance."

13. The Commission then commented:

(checked to audio)

"For the reasons expressed, the Commission considers that there is no real possibility that the Court of Appeal would consider that Mr Reed's submissions relating to his clothing demonstrate errors or irregularities in the trial nor that following the test of what (inaudible) which that court has developed and applied it would not uphold Mr Reed's conviction"

14. Mr Milnes argues that this reasoning is inadequate. He responds that the comment that Mr Reed helped to move the body does not address the comments which he had made in his response to the Commission's provisional decision, essentially that if the jury had been shown a video of the defendant, Mr Reed, a few hours after the alleged attack and had been able to see that his clothes at that stage were not bloodied clothes and clothes which it is said could be shown to be the same as ones that he had been wearing the previous day, they may have concluded that he could not have taken part in the attack and that if he had, as he accepted, moved Ms Jones's body, he would not necessarily have received blood on his clothes as a result of that because the body was wrapped in a cloth or a rug at the time.
15. Second, Mr Milnes argues that the juxtaposition which is drawn by both counsel and the Commission between matters that were issues between the co-defendants and matters which were issues between Mr Reed and the prosecution is a false juxtaposition because, where there is a cut-throat defence, issues between the defendants can indeed work to the advantage of the prosecution in its attempts to secure a conviction of the defendant in question. Mr Milnes also submitted that the Commission has not fully dealt with all the points which he had raised in the course of his response to the provisional opinion.
16. There are a number of hurdles, however, which the claimant has to cross and which are substantial in a case such as this. The first, as the Commission emphasised, is that this remaining ground is a criticism of the way in which defence counsel conducted the case. There of course are numerous examples in the history of the criminal proceedings in this country where defence counsel have made egregious mistakes, and it can on occasions be the task of the Commission to bring cases back to the Court of Appeal on a reference where that is so, and the Court of Appeal may indeed quash a conviction because the conviction is then considered to be unsafe. However, the Court of Appeal, while recognising that there are such cases, is cautious about interfering with a conviction on such a ground. It will only do so where the behaviour of defence counsel has been wholly unreasonable. There are many decisions that have to be made by counsel in the course of a trial where a decision either way could be right. If, with hindsight, a defendant who is subsequently convicted wishes to argue that the counsel at trial should have taken a different course, the court will be slow to intervene. It is not enough for a defendant in such circumstances to persuade the court that an alternative course would have been reasonable. What must be shown is that the course which was chosen by defence counsel was wholly unreasonable. That is the first obstacle that the claimant has to surmount in this case.
17. The second is that the Commission's statutory responsibility is to refer a case to the Court of Appeal only when in its judgment there is a real possibility that the conviction might be quashed as unsafe. The courts have emphasised on numerous occasions that the statute gives to the Commission the responsibility for exercising such a judgment. For example in R v  CCRC ex parte Pearson [1999] 3 All ER 498 Lord Bingham CJ said:

"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."

18. The third difficulty which the claimant has to surmount is that it is also clearly established that it is not obligatory for the Commission to deal with every single argument that has been presented to it. In R(el-Heri) v CCRC CO/217/2009, on 29 October 2009 Elias LJ said at paragraph 62 to 64:

"62. [The Commission] do not have to give reasons for every single matter you raise before them, they would be producing the report for a year probably if they did that. They have to produce reasons for the substantive points and explain in sufficient detail why they have rejected your claim. It does not involve saying, "I am going to take each of your 17 points and deal with them", that is a misapprehension of their duty.

…

64. …it is not an obligation on the Commission to deal with each single point that somebody may wish to make in the context of a challenge of this kind. They have to deal as fairly as they can with the essence of the arguments that are advanced and so that anyone reading it can know why they reject it. That is what they have to do. Insofar as you are saying they did not deal with each point that you raised, that is not a successful challenge."

19. The fourth hurdle that the claimant must surmount is that in order to show that the Commission has erred in law he must show that they have reached a decision which no reasonable Commission could have arrived at. It is a standard of perversity, a standard often referred as the Wednesbury test. It is not an easy standard for a claimant to establish.
20. In my judgment the claimant has not shown a reasonably arguable case as to how he would be able to surmount these four hurdles. Mr Milnes has presented the argument in a persuasive manner both in writing and orally, but I am not convinced that there is a reasonably arguable case that could overcome the four hurdles that I have indicated.
21. For those reasons, and essentially sharing the views of Langstaff J when he dismissed the application on the papers, this renewed application is also dismissed.

Order: Application refused