England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		19 November 2014

1. LORD JUSTICE BEATSON: This is the hearing of Mr Paul Cleeland's application to judicially review the final decision of the Criminal Cases Review Commission made on 27 September 2013 not to review his case further. Mr Cleeland was convicted of murder in 1973. In 1998, he successfully challenged the Commission's refusal to refer his case to the Court of Appeal Criminal Division. That court heard an appeal and dismissed it on 13 February 2002.
2. Since then, Mr Cleeland has sought to persuade the Commission to refer his case again to the Court of Appeal Criminal Division. He relies on developments in understanding of forensic evidence and what its significance is since the 2002 decision. In particular, he relies on reports of an expert, Mr Gibbs. He relies on material that had emerged in the proceedings arising out of the incident that is commonly known as the Bloody Sunday incident.
3. He submits that these factors have justified a referral and that the decision of the Divisional Court in R (Cleeland) v Criminal Cases Review Commission [2009] EWHC 474 (Admin) refusing his application for a judicial review of an earlier refusal by the Commission to refer his case is, in his words this morning, invalid because he maintains that it contradicts the decision of the Court of Appeal Criminal Division in material respects in relation to the evidence about and concerning the presence of lead on his clothes and the evidence given by a Mr McCafferty at his trial about that. His case is that the analysis used was only a preliminary screening analysis and was not capable of amounting to evidence that he had fired a gun.
4. He relies on the representations made by Mr Edward Fitzgerald QC and Mr Arora of Mr Cleeland's solicitors to the Commission. The bundle before us contains all the previous court hearings, including the hearing before the Divisional Court. At the conclusion of that hearing, Mr Fitzgerald read out a matter which he stated was what, he said, "acting on instructions". He stated that the document stated:

"Mr Cleeland instructs Queen's Counsel to apply for leave to appeal to the House of Lords on a point of law of public importance, namely that he has a matter of law he wishes to raise which he was prevented from doing having decided to represent himself, but having been unfairly excluded from court."

The point of law was:

"Where a person elects to dispense with counsel and exercise his right to represent himself, whether he should be restricted in his submissions by those already made by counsel and specifically whether he should be permitted to address the court on the merits of his case as a whole."

5. This arose because although Mr Cleeland had dispensed with Mr Fitzgerald's services before the reply, when making his reply, he did not confine himself to points that arose out of the Respondent's submissions and he was then excluded from the court.
6. It appears that the Divisional Court at that time did not certify that there was a point of law of general importance and, therefore, in a criminal matter, the matter ended there.
7. Mr Cleeland today objects to this court seeing or relying on the Divisional Court's judgment. He does this although it, together with the other decisions, other documents and other reports of experts, has been put into the bundles before us by his lawyers. Although he has dispensed with the services of the counsel who until recently acted on his behalf, he has with him a solicitor from Arora Lodhi Heath. I think it is Mr Arora. These matters were put in front of us as a result of their preparation.
8. This court is to review the final decision of the Commission not to review the case further. It has to consider whether the Commission's predictive decision about what the Court of Appeal Criminal Division would do if the case was referred is flawed in law, having regard to the very high threshold which challenges to the decisions of the Commission are subject and, in particular, the statements in previous decisions, including the decisions of the House of Lords in ex parte Pearson [1999] 3 All ER 498, of the Divisional Court in Pearson per Lord Bingham, Chief Justice; by the same judge in ex parte Hunt [2001] 2 Cr.App.R 76; and indeed, by Scott Baker LJ in Mr Cleeland's own case in 2009.
9. In order to assess whether the high threshold has been surmounted, it is necessary for this court to look at the entire history of this matter. Part of that history is the decision of the Divisional Court. If this court did not certify it, it was a final decision which was not challenged. There was no challenge to it, for example, in Strasbourg. There is no legal reason for this court not having regard to it, notwithstanding the representations made by Mr Fitzgerald QC to the Commission.
10. Furthermore, there is no means by which this court can do anything which would get the status of the Divisional Court's 2002 decision before the Supreme Court. We are now long out of time.
11. Mr Cleeland has said that if we did not indicate that we would have no regard to the 2009 decision, he would take no further part in these proceedings. If he does not take any further part in these proceedings, the court will be denied the benefit of his assistance.
12. However, it has got a claim. It has got grounds for review. It has got a skeleton argument, which it is told contains two glaring errors, but the rest of which has not been disavowed. We have not been told what the two glaring errors are, although we have asked for that. In those circumstances, it is, of course, open for Mr Cleeland not to advance his case orally. In such a circumstance, this court will have to rule on his application on the basis of the written material in front of it.
13. I conclude by saying that in doing that, this court will look at the entire record, including the proceedings that were in front of the Divisional Court in 2009.
14. MR JUSTICE HOLROYDE: I agree and add only these few observations.
15. The court is, in effect, asked by Mr Cleeland to adjourn the hearing of this application with a view to the 2009 decision of the Divisional Court being, by some as yet unspecified means, put before the Supreme Court for further consideration.
16. In making that application, Mr Cleeland relies heavily on the advice given earlier in these proceedings by Mr Edward Fitzgerald QC. As my Lord Beatson LJ has indicated, the opinion of counsel, however eminent, is not determinative of the issue now raised before us by Mr Cleeland.
17. In considering whether the Criminal Cases Review Commission acted unlawfully and/or unreasonably in making its decision not to refer Mr Cleeland's case to the Court of Appeal, it is necessary, and as it seems to me, inescapably necessary, for this court to consider the long history of the matter, including that part of the history which refers to the 2009 hearing in the Divisional Court.
18. Mr Aspinall on behalf of the Respondents today tells us, understandably, that that was one matter which the Commission took into account in making the decision they did.
19. Further, as my Lord has indicated, the transcripts of the judgments of the Divisional Court in 2009 were actually exhibited to the witness statement of Mr Cleeland's solicitor filed in support of the application for permission. In that statement, the solicitor, Mr Arora, who, as we understand it, sits beside Mr Cleeland today, identified that transcript and others as being "relevant to the amended application for permission." In my view, they are also relevant documents in considering the matters before us today, permission having been granted to put those matters before this court.
20. For those reasons, briefly summarised, I concur with my Lord in concluding that these proceedings should not be adjourned on the grounds on which Mr Cleeland invites us to adjourn.
21. I do add this. The court is aware of the strong views which Mr Cleeland holds about the long history of these proceedings. We would be assisted by his appropriate oral submissions on the matters which we do have to decide. If he chooses not to make oral submissions, then the hearing must proceed in the manner indicated by my Lord.