England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION0
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/11/2015

Lord Justice Burnett:

Introduction

1. On 5 October 2000 the claimant was convicted at Croydon Crown Court of theft. The jury could not agree on an additional count of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. Following a retrial which finished on 6 December 2000 the claimant was convicted of that additional offence. He was sentenced to 21 months imprisonment for the wounding with two weeks concurrent for the theft. His initial application for permission to appeal was refused, but in 2008 his case was referred to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission ["CCRC"]. On 6 February 2009 both convictions were quashed: [2009] EWCA Crim 430. The victim of the assault and theft, Ian James, had admitted lying in the course of his evidence in a number of material respects. He had been prosecuted for perjury and on his plea of guilty was sentenced to 18 months' imprisonment on 4 December 2007.
2. On 24 April 2009 the claimant applied to the Secretary of State for Justice pursuant to section 133 of the Criminal Justice Act 1988 ["the 1988 Act"] for compensation on the grounds that he was the victim of a miscarriage of justice. That application was originally refused on 6 August 2009 because the Secretary of State did not accept that there had been a miscarriage of justice for the purposes of that statutory provision. He applied a test which required the new fact to prove conclusively that the claimant was innocent. Judicial review proceedings were issued promptly to challenge the decision on the grounds that the Secretary of State had applied too narrow a test. Pitchford J gave permission on 30 December 2009.
3. We are considering the substantive application almost six years later because the claim was twice stayed to await the outcome of appeals in other cases which considered the meaning of "miscarriage of justice" for the purposes of section 133 of the 1988 Act. The first was R (Adams) v. Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48. The second was R (Ali) v. Secretary of State for Justice [2013] EWHC 72 (Admin); [2013] 1 WLR 3526 at first instance and [2014] EWCA Civ 194; [2014] 1 WLR 3202 in the Court of Appeal. However, on 24 August 2011, after these proceedings had been commenced, the Secretary of State maintained his decision applying the interpretation of "miscarriage of justice" favoured by the Supreme Court in Adams, which was different from the interpretation he had applied in the 2009 decision.

The legislation and meaning of "miscarriage of justice"

4. Section 133(1) as originally enacted provided that:

"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."

It was this provision that was interpreted by the Supreme Court in Adams (and considered by the Court of Appeal in Ali). In issue was the reach of the term "miscarriage of justice" and, in particular, whether it extended beyond cases in which the new or newly discovered fact proved conclusively that the applicant for compensation was innocent of the alleged offence. The Secretary of State argued to limit the reach to that type of offence, which in the nomenclature of the cases was identified as a Category 1 case. The Supreme Court held that "miscarriage of justice" for the purposes of statutory compensation pursuant to section 133 also included other cases, referred to as "Category 2" cases. In paragraph 55 of his judgment in Adams Lord Phillips of Worth Matravers, having considered alternative formulations of Category 2, stated it as follows:

"A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. I find this a more satisfactory outcome than that produced by category 1. I believe that it is a test that is workable in practice and which will readily distinguish those to whom it applies from those in category 3. It is also an interpretation of miscarriage of justice which is capable of universal application."

5. Category 3 covers "the situation … where the fresh evidence reduces the strength of the case that led to the claimant's conviction, but does not diminish it to the point where there is no longer a significant case against him." (Lord Phillips at paragraph 39) Such cases were held not to fall within the scope of statutory compensation.
6. Lord Hope agreed with Lord Phillips' formulation of a Category 2 case in paragraph 55 and understood it to mean that "it will have been shown conclusively that the Defendant had no case to answer, so the prosecution should not have been brought in the first place" (paragraph 96). That would include cases in which the conviction depended on a confession which was shown by a newly discovered fact to have been improperly obtained and so was inadmissible. Lady Hale and Lord Kerr also agreed with Lord Phillips' formulation. Lord Kerr's judgment dealt with the appeals of McCartney and MacDermott which were based upon confessions which should not have been admitted. Absent the confessions, there was no other evidence and no case to answer.
7. Mr Stanbury, who appears for the claimant, submits that the Secretary of State was "bound to conclude, as the prosecution concluded when it did not resist the appeal, that Ian James was not believable on any matter"; and was thus bound to conclude that this was a Category 2 case. Mr Strachan QC for the Secretary of State submits that Mr James did not withdraw or qualify much of his evidence which was central to the convictions. It was also supported by circumstantial evidence. In those circumstances the Secretary of State was entitled to conclude that the newly discovered fact, namely that Mr James had accepted that he had lied about important aspects of the case, did not establish beyond reasonable doubt that no conviction could possibly be based upon the evidence against the claimant.

The amendment to section 133 and its consequences in this litigation

8. There is an added complication which arises from the chronology of these proceedings. Parliament returned to the meaning of "miscarriage of justice" following the decision of the Supreme Court in Adams. Section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 ["the 2014 Act"] redefined the term to limit its scope to Category 1 cases and also made provision for how the new definition should apply to outstanding applications.

"175 Compensation for miscarriages of justice

(1) In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice) after subsection (1) there is inserted—

"(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).

(2) Subsection (1ZA) of section 133 of the Criminal Justice Act 1988 has effect in relation to—

(a) any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and

(b) any application for compensation made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under subsection (3) of that section."

9. The relief sought in these proceedings is a quashing order in respect of the decision to refuse compensation. The statutory scheme assigns to the Secretary of State the determination of the question whether there is a right to compensation. An independent assessor then decides quantum. In his pleadings the claimant positively disavowed the suggestion that his case could fall within Category 1. In argument, Mr Stanbury sought to keep open the possibility that this could be a Category 1 case in the event that the earlier decision was quashed and the matter remitted to the Secretary of State. In my view, that is a hopeless contention because Mr James's partial withdrawal of his evidence on any view does not establish the claimant's innocence. The pleaded concession was correct.
10. To avoid this difficulty, the claimant argues that were the decision to be quashed and remitted to the Secretary of State, he would be obliged to consider the application under the old section 133. Mr Stanbury submits that the wording of section 175(2)(b) of the 2014 Act is not clear enough to achieve the result that any application finally determined after the date on which section 175 came into force (which was on Royal Assent on 13 March 2014) should be determined by reference to the new definition of "miscarriage of justice". Any applications made before Royal Assent but undetermined at that date, as would be the claimant's if he succeeds in obtaining a quashing order, should therefore be decided using the Adams definition.
11. Mr Stanbury advances the submission by reference to a range of authorities dealing with the retrospective application of statutory provisions which demand clear language from Parliament to achieve retrospectivity.
12. This is not a case of retrospectivity in the classic sense of an alteration to established rights. The statutory change does not require the redetermination, in accordance with the new definition, of a right to compensation already recognised. Be that as it may, in my judgment the language of section 175 is clear and unambiguous. If the Secretary of State does not finally determine the right to compensation until after the new provision has come into effect, that new provision governs the application. The structure of section 175 ensures that those whose right to compensation has been recognised by the Secretary of State under the old definition, but are yet to have quantum determined by the assessor, keep their right to compensation.
13. The impact of successful judicial review proceedings is contemplated by section 175 in using the words "not been finally determined" as opposed to simply "not been determined". What does the word "finally" add? A basic principle of statutory construction holds that otiose words are not included in statutory formulations. The word "finally" was intended to add something. In my judgment, it recognises that the right to compensation may be determined more than once. Parliament can be taken to have understood that a decision of the Secretary of State pursuant to section 133 of the 1988 Act can be, indeed regularly is, challenged in judicial review proceedings. The Secretary of State may withdraw a decision and make a new one, as he did in this case to reflect the definition of "miscarriage of justice" articulated by the Supreme Court in Adams. A decision may be subject to a quashing order with the consequence that a fresh decision must be made. To my mind Parliament made express provision for precisely the circumstances which would obtain were the claimant to achieve a quashing order in these proceedings.
14. Therefore, if the decision to refuse compensation in this case was quashed and remitted to the Secretary of State, he would be obliged to determine it by reference to the definition of "miscarriage of justice" found in section 133(1ZA); and refuse it. In that sense these proceedings have become academic. A finding that the Secretary of State should have considered that the claimant's case fell within Category 2 would be a pyrrhic victory because it would not result in any compensation being paid. Mr Stanbury submits that such an outcome would be unfair and capricious. I readily understand why applicants might feel that, but in the face of statutory language which is crystal clear that consequence follows.
15. An applicant for compensation under section 133 has control of the timing of his application and the submission of supporting material. Thereafter the speed at which it is dealt with in the Ministry of Justice and the date of the determination is in the hands of others. Equally, following an adverse determination, the claimant in judicial review proceedings has some control over the pace at which those proceedings make progress. Here, for good reason, the claimant sought to defer the hearing until section 133 was twice considered on appeal. For that reason there is an element of bad luck in the timing, but there is nothing in the language of section 175(2)(b) that could qualify the clearest of parliamentary intentions that the date of Royal Assent was to act as a watershed for the purposes of the Secretary of State's determination of the right to compensation for miscarriages of justice.
16. To avoid the logic of that position, Mr Stanbury advances (albeit with little enthusiasm) an alternative submission to the effect that this court would have power pursuant to section 31(5) of the Senior Courts Act 1981 to substitute its own decision were we to quash the decision in this case, and do so applying the original section 133. Section 31(5) and (5A) provide:

"(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition—

(a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or

(b) substitute its own decision for the decision in question.

(5A) But the power conferred by subsection (5)(b) is exercisable only if—

(a) the decision in question was made by a court or tribunal,

(b) the decision is quashed on the ground that there has been an error of law, and

(c) without the error, there would have been only one decision which the court or tribunal could have reached."

17. It is sufficient to note that there is an immediate and insuperable problem with the submission. The Secretary of State for Justice is patently neither a court nor a tribunal. The fact that he is undertaking a task which Parliament might have chosen to assign to a court or tribunal is neither here nor there. Furthermore, this provision could not be used by a court to make a decision, having quashed an earlier one of a court or tribunal, which that court or tribunal itself could not make lawfully were the matter remitted.

The Facts

18. On the night of 10 December 1999 the claimant crashed into Mrs James parked car outside the James's home. He ran off but was apprehended and in due course prosecuted for driving with excess alcohol. The following evening Mr and Mrs James were at home with their daughter when the claimant and his brother were seen running away from the house. The Christmas wreath on the door had been stolen. That wreath had evolved over many years with the James's daughter adding a decoration to it annually. It held great sentimental value to the family. Mr James and his daughter gave chase in a car and caught the claimant and his brother. He was very angry. There was a tussle during which Mr James sustained a cut to his head. It required three stitches and he suffered various other injuries. It was the prosecution case that the claimant attacked Mr James when he went to retrieve the wreath which he believed the claimant's brother was hiding behind his back. Mr James said that the claimant's brother produced a stick and damaged his car. Mr James wrestled the stick from the brother before returning it to the claimant having got an assurance it would not be used again. In evidence Mr James denied taking the stick to the scene or that it was his. His evidence was that the claimant was holding a beer glass with which the claimant hit him and broke over his head after the stick incident was over. He also hit him to the side of the head. The claimant's case was that his brother took the wreath and that whilst he was with him, he had nothing to do with the theft, but that was why they both ran away. He claimed that Mr James had introduced the stick into the later incident, and used it offensively. As both the judgment of the Court of Appeal and the summing up at trial show, the matter was run as a case of self-defence.
19. In May 2005 the Claimant made contact with Mr James on the pretence of using his business and, in a telephone conversation which he recorded, had a candid discussion about the events in question. In that conversation Mr James admitted hitting the claimant's brother with the stick after the brother had thrown the wreath over his shoulder and broken decorations attached to it. The claimant accepted that "we was in the wrong" but thought his brother did not deserve to be hit with a stick. There was this exchange:

"James: Yeh but you came to me I didn't chase you with the stick, you walked back to me.

Claimant: Oh right, yeh yeh I think you're right there yeh – yeh you are right, but, like you had the stick and I think you was gonna hit me with it. I did. And obviously you know you can understand that I probably thought you were going to do that.

James: and I, I handed the stick over to you and that's when you glassed me.

Claimant: Well no that's what happened see, you came towards me, I grabbed the stick and I thought excellent, you know, I did, I did grab the stick and I said to you didn't I, let go of it and you did, you know fair play you did let go.

James: And that's when you glassed me, after I had let go of it.

Claimant: I think it was.

James: I said, I said to you, if I give you the stick, I said you are going to hit me with it and you said, no I won't, no I won't.

Claimant: That exactly, yeh.

James: You said I just want it off you, so I said OK I let you have it and I let go of the stick and the next thing I know there was glass.

Claimant: Well obviously I don't see it that way, maybe.

James: All I can say to you is only one of us was drunk that night and it wasn't me."

20. After much discussion about the trials, the conversation eventually turned to the stick and where it came from. Mr James said he did not know where it came from, and thought he may have picked it up in the road. He was pressed by the claimant to account for how he came into possession of the stick but repeatedly said he could not remember. Then,

"James: then regardless of whether you can believe it or not, you gave me such a punch to the head.

Claimant: yeh

James: you have, you have you ruined my life since

Claimant: Oh

James: I can't remember what people told me last week, that's why I have to write everything down, or I forget it.

Claimant: You make me feel bad every time I end up talking to you, you know, you know, like I said to you before, I really didn't mean for that to happen that evening, but but, I saw you hit my brother with the stick where, you don't even know where you got it from, and I thought you was going to hit me with it. … you can understand why I reacted the way I did because as far as I was concerned as aggressor coming at me

James: I was 48 at the time, a 48 year old man can't take 6 or 7 or 8 punches to the head, and not have something go wrong afterward, it's as simple as that."

21. This conversation provided the evidence to support the prosecution against Mr James for perjury. He pleaded guilty on the following basis:

"1. The defendant will plead guilty … on the following basis:

(a) he accepts that during the incident with Ashley and Jamie Sneddon he used a stick to strike Ashley Sneddon, having used the stick he then handed it to Jamie Sneddon.

(b) the defendant accepts that in giving evidence that he did not use the stick he committed perjury on two occasions.

(c) the defendant did not bring the stick with him to the incident.

2. …

3. Irrespective of the lies told by the defendant, he maintains that the attack upon him by Jamie Sneddon was not in lawful self-defence nor defence of another.

4. As a result of the assault upon the defendant he suffered significant physical injury, including:

(a) Laceration to the left side of the scalp requiring stitches;

(b) Bruising to the left side of the forehead;

(c) Tenderness over the left eyebrow;

(d) Severe reduction to the eyesight in his left eye (although after 8 days the sight returned);

(e) Perforation of the right ear-drum;

(f) Tenderness in the neck;

(g) Pains to the trunk.

5 …

6 …"

The reference to committing perjury on two occasions is to the fact that the same evidence was given in two trials.

22. On the claimant's appeal, the Court of Appeal's conclusions are found in three paragraphs of the judgment of the court given by Hallett LJ:

"13. The Court … has the benefit of very helpful submissions from Mr Hall, prosecuting counsel. He has considered the extent of Mr James' admitted lies and the impact upon the safety of the convictions. Given what Mr James has now admitted, Mr James cannot be considered to be capable of belief on any aspect of his evidence in respect of the count of unlawful wounding. However, he went further. Mr Wilcock argued on the appellant's behalf, and Mr Hall conceded, that Mr James' resultant lack of credibility made it more likely that a jury would have been prepared to accept the account given by the appellant on the theft matter, and that this created a real risk that the conviction for theft was also unsafe.

14. Given the background to this matter, we have no doubt that the [CCRC] was fully justified in referring this matter … and that Mr Hall's concession on the wounding count was properly made. The issue on that count, from the outset, was self-defence. The perjured evidence from Mr James in both trials was central to the case on that count. Mr James alleged that the appellant produced the stick and used it in a threatening and violent manner. He now admits that that was a lie. True it is that Mr James has never conceded that the stick was his property and that he took it with him to the scene, but, as Mr Hall conceded, the important point is that he now accepts that it was he who introduced the stick to the confrontation and thereby provoked the violence. This puts the issue of self-defence into a very different context.

15. This court cannot possibly determine whether, had the jury known the full truth, they would still have convicted the appellant of wounding on the basis that he went further than was required to defend himself or his brother. Given his explanation for the way in which the glass in his hand made "accidental" contact with Mr James' head, they may have given careful thought to the question of whether he had exceeded the reasonable bounds of self-defence. However, that is speculation. The conviction for unlawful wounding is unsafe. Accordingly we quash it."

23. The Court of Appeal had some difficulty with the appeal against the conviction for theft. The offence was committed. The question was whether the claimant was criminally liable along with his brother on the basis of joint enterprise. Mr James' evidence did not touch that matter at all, but the court accepted that having disbelieved the claimant on the wounding count (the evidence in respect of which was tainted) that might have led the jury to disbelieve him on the theft count. Although the court found that analysis generous to the claimant, it quashed that conviction also. There was no question of a retrial.

The application for compensation

24. On 6 August 2009 the reason given for refusing the claimant's application was simply that the materials available, including the judgment of the Court of Appeal, did not show beyond reasonable doubt that the claimant was innocent of the two offences for which he was convicted.
25. Following the judgments of the Supreme Court in Adams the question was reconsidered by the Secretary of State. The essence of the reasoning was contained in this extract from a letter written on his behalf by the Treasury Solicitor on 24 August 2011:

"There was fresh evidence that the complainant had admitted lying in both trials and had been convicted of committing perjury in both trials. The impact that such evidence might have had on the jury's verdict had it been available at the time was considered by the Court of Appeal, but it remains that your client might nevertheless have been properly convicted. In particular, it is noted that as regards the wounding charge, the court of appeal stated [Paragraph 15 was quoted]. Moreover, as regards the theft charge, the Court stated that had prosecution counsel "sought to argue that the conviction may still have been safe, he would have been on stronger ground … [and] …The offence of theft, we note, was separated by several minutes and 100 yards in distance from the wounding. It did not depend upon Mr James' evidence or that of his stepdaughter." And prosecution counsel "might have wished to argue (as he possibly did at trial) that the appellant's account stretched credulity somewhat." (paragraph 16). There was no finding by the Court of Appeal that the fresh evidence demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court could convict. It is possible that the jury may still have made the same decision despite the new fact that undermined certain elements of the evidence."

Discussion

26. In his reply, Mr Stanbury argued that the "new fact" in this case was not the acceptance by Mr James that his evidence at both trials was untruthful in part. It was the recognition by prosecuting that Mr James could not be relied upon at all as a witness of truth, as recorded by the Court of Appeal. It was at the forefront of the claimant's arguments that analytically his case was the same as that of the two Northern Irish appellants in Adams whose appeals were allowed. In each of their cases the convictions were based entirely upon their confessions. Once it was discovered that the confessions could not be relied upon there was no surviving evidence which could found a conviction. So too, submits Mr Stanbury, once Mr James' evidence went there was nothing left to sustain a conviction of wounding.
27. Prosecuting counsel's conclusion, recorded in paragraph 13 of the judgment of the Court of Appeal that no part of Mr James's evidence on the wounding was capable of belief, is not a fact but the opinion of the Crown voiced in the context of their deciding (a) whether to resist the appeal, and (b) whether to seek a retrial. The fact identified in the Secretary of State's decision (reflected in the letter from the Treasury Solicitor) was that aspects of Mr James's evidence were untruthful, and accepted by him as such. That is the fact which led to his appeal being allowed.
28. The discovery that a witness accepts that he has lied about part of his evidence could emerge at various times and stages in the criminal process. At whatever stage it might have emerged in this case, it would have constituted the same fact. It might have emerged before the trial, if Mr James had come clean with the prosecution and made an explanatory statement encapsulating the concessions made in his basis of plea. It might have emerged during cross-examination, with his accepting that parts of his evidence were untruthful but insisting on the core account reflected by that basis of plea (and indeed the recorded telephone conversation). Or, as was in fact the case, it could emerge after conviction. Having emerged in this last way, in many cases it might then be confirmed in evidence in a retrial. In answering the question posed by Lord Phillips in paragraph 55 of Adams, it should not matter when the fact emerged. His hypothesis is that the "fact" is before the criminal court. The question is whether, in the light of that fact, there could possibly be a conviction. Lord Hope's formulation which asks whether there would still be a case to answer is to the same effect.
29. In this claimant's case the inquiry, when considering Category 2, is whether a jury could possibly convict of wounding, evidential warts and all. In my judgment, the Secretary of State was entitled to conclude that a conviction in those circumstances would be a real possibility. Mr James's position remained that he was glassed by the claimant after he had given the claimant the stick, despite having told lies about how the stick was introduced to the scene. His evidence remained that he had been attacked at that point, despite having earlier hit the claimant's brother. He undoubtedly sustained serious injury. There was some supporting evidence from his daughter and the claimant had accepted in interview that there had been an altercation. To paraphrase Lord Hope's language in paragraph 98 of Adams, the new fact has not shown conclusively that the claimant had no case to answer. In my judgment, it cannot be said that the prosecution should not have been brought in the first place. If the concession about lying had pre-dated the trial and emerged in a clarifying statement, it might well have made the prosecution's task difficult; but there would still have been a case against the claimant. It is not unusual for witnesses to embellish their accounts by lying. It is so common for defendants themselves to do so in criminal cases that juries are regularly directed about the dangers of moving from the premise that a defendant has lied to the conclusion that he is guilty. Had Mr James's lies emerged in cross examination the case would still have been fit to go to the jury. The Secretary of State's conclusion was entirely consistent with the approach of the Court of Appeal in paragraph 15 of the judgment of Hallett LJ in saying that "this court cannot possibly determine whether, had the jury known the full truth, they would still have convicted the appellant of wounding …"
30. To my mind this is a classic Category 3 case. The fresh evidence has reduced the strength of the case that led to the claimant's conviction, but it does not diminish it to the point where there is no longer a significant case against him. The two Northern Irish appeals heard in Adams provide no analogy. In both of those cases, once the confessions had gone there was no evidence against the appellants at all.
31. The focus of attention in this claim has been on the wounding conviction. There can be no doubt that the Secretary of State was correct in his decision that the conviction for theft was neither a Category 1 nor a Category 2 case. In the light of my conclusions on the question whether the Secretary of State's decision relating to the wounding conviction was lawful, it is unnecessary to explore what the approach would have been had he concluded that there had been a miscarriage of justice in respect of the wounding conviction but not the theft conviction.

Conclusion

32. (i) The decision of the Secretary of State concluding that the claimant had no right to compensation under section 133 of the 1988 Act, remade on 24 August 2011 was lawful.

(ii) If the Secretary of State's decision had been unlawful, and the matter had been remitted to him for a fresh decision, he would have been bound to determine the question applying the new statutory definition of "miscarriage of justice" inserted by section 175 of the 2014 Act.

(iii) Section 31(5) of the Senior Courts Act 1981 would not enable this court to substitute a decision applying the original definition after section 175 came into force.

I would dismiss the claim.

Mr Justice Hickinbottom

33. I agree. In my judgment, for the reasons given by my Lord, Burnett LJ, section 133(1ZA) of the 1988 Act, introduced by section 175 of the Anti-social Behaviour, Crime and Policing Act 2104, renders this claim entirely academic; and I would refuse it on that ground alone. However, I am also quite satisfied that the Secretary of State's decision that this was not, in any event, a Category 2 case was not unlawful, again for the reasons given by Burnett LJ.
34. I too would therefore dismiss this claim.