England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2nd February 2010

1. LORD JUSTICE ELIAS: I will ask Mr Justice Calvert-Smith to give the first judgment of the court.
2. MR JUSTICE CALVERT-SMITH: There are two applications for permission to apply for judicial review before the court today by this complainant. The first in time is directed against the Criminal Cases Review Commission (CCRC). This application has been considered by a single judge and, most recently, by my Lord, Lord Justice Elias, in the Divisional Court. I will deal with that one first.
3. The relevant chronology, so far as that application, which is now renewed, is that Mr Davis was convicted of a sexual assault under section 3 of the Sexual Offences Act 2003, some long time ago now. He was sentenced to 3 years' imprisonment and three ancillary orders were made, one of which was a recommendation for deportation.
4. At his trial he represented himself, save for the appointment by the court of counsel in respect of the cross-examination of the complainant and of a witness who gave evidence for the Crown in support of the complainant's evidence and, so the court is informed on the papers, at the time of sentence.
5. Following his conviction, Mr Davis applied for leave to appeal against conviction and sentence and, when they were refused, those applications were renewed to the full court and refused.
6. Following that last refusal, he applied to the CCRC for them to re-look at his case with a view to it being referred back to the Court of Appeal, Criminal Division, for them to consider afresh whether his conviction was safe.
7. He raised nine separate points with the CCRC. They concerned the question of whether evidence was admissible, in particular evidence of bad character, in two respects. He raised complaints with the way the judge conducted his trial and he raised particular concerns in respect of evidence: evidence which was before the court at the trial, which was not, in his submission, properly interpreted; evidence which became available after the trial was over but before sentence, which might have affected the credibility of the complainant; evidence which the claimant believes may exist, but has never been revealed to him; and, in respect of the way in which the trial was conducted, the fact that, having had court-appointed counsel cross-examine the complainant in the criminal case, he was prevented, when representing himself, and without the assistance of counsel, cross-examining a police officer about what he alleges are contradictory statements made by the complainant to the police at different times.
8. In the course of their investigations the CCRC examined the more obvious sources of material for consideration — the case papers and so on. They also spoke to the Crown Prosecution Service, who prosecuted the case, and to the counsel appointed by the court.
9. Following the CCRC informing Mr Davis of its provisional conclusion that there were no grounds for referring the case to the Court of Appeal, Criminal Division, Mr Davis submitted further representations, including allegations that the court-appointed counsel had failed to deal with matters that he had raised with her in respect of the cross-examination of the complainant and that he had relied on her advice that those matters could be dealt with by him through cross-examination of the officer. As I already indicated, he had already complained that he had been prevented by the judge, in a ruling, from cross-examining the officer.
10. Following receipt of those additional submissions, the Commission produced a second provisional finding, which came to the same conclusion as the first. That was on 21st September 2009.
11. The passage which has exercised the court in this hearing is at paragraphs 140-143 of that provisional report:

"140. In view of Mr Davis's concerns, the Commission contacted Ms Alison Scott-Jones who was court-appointed counsel for Mr Davis. She said she had a good recall of the case and was willing to assist as far as she was able.

141. She said that initially Mr Davis had not provided her with a full proof of evidence or a note of the matters he wanted her to cross-examine IR [the complainant] about. She therefore spent several hours with him taking detailed line-by-line instructions on the complainant's statements.

142. She was sure she never advised him that he would be able to cross-examine DC Wall about discrepancies in IR's statement as it was not her role to advise on the conduct of the case and in any event it would have been completely wrong advice. As court-appointed counsel she avoided giving him advice on matters that were outside her defined role.

143. She also recalled that Mr Davis insisted that she cross-examine JM about sexual text messages sent by her despite having been warned that this would be an attack on her character which could let in the allegation that he had stolen from her."

12. Since receipt of that second provisional report, Mr Davis has taken strong exception to the contents of that paragraph and what lies behind it, namely the approach by the Commission to Ms Scott-Jones.
13. In reply the Commission submits that the Commission is not fettered in its discretion to approach any person who it thinks may be in a position to give relevant information which may help it come to a correct conclusion whether to refer a case back to the Court of Appeal, Criminal Division; and that if there is a situation of actual legal professional privilege, or even an analogous relationship which might give rise to considerations of legal professional privilege, it is for the person approached to raise the matter with them, rather than for them to raise it with the defendant in this case, who seeks the referral.
14. The Commission further contends that, with small exceptions, the material obtained from Ms Scott-Jones was not in fact privileged information and that any material which was was directly relevant to their having been put on notice by the claimant in this case that the advice he had been given by her was in issue.
15. The court has already considered this issue but came to no conclusion about it, that being the principle reason why the court, having refused leave on 4th November 2009, later gave leave for the matter to be re-opened.
16. The question as to what the precise relationship is between court-appointed counsel and the defendant in a case which is caught by section 38 of the Youth Justice and Criminal Evidence Act 1999 is an interesting one. We are prepared to assume for the purposes of this hearing that any material which was divulged by Mr Davis to Ms Scott-Jones for the purposes of conducting cross-examination must, at least prima facie, fall within the boundary of privileged information, whatever the strict legal provisions are. However, it is worth pointing out that none of that material has been disclosed. The only material disclosed has been material which referred directly to the complaint made by the claimant in this case.
17. One matter which might fall outside that general boundary is what we see at paragraph 143, which appears from the way the paragraph is drafted to be something which fell from lips of counsel, rather than being something the CCRC had actually asked her about, that being the matter which went, in some respects, to the question of bad character.
18. For the claimant to have raised the matter with the CCRC he must have assumed that the CCRC would need to know the truth of it, and that they would also want to check that what he had been saying about his instructions and her failure to act on them was true. The only way that such a ground could be fairly considered by them, let alone by the court of appeal, Criminal Division, in due course, is following a waiver of privilege. That is contained in the now quite old guidance issued with the approval of the then Lord Chief Justice, Lord Taylor, and the Bar Council.
19. On 4th November, when the matter was before my Lord, Lord Justice Elias, the CCRC conceded that they had approached counsel without seeking a waiver, and gave the justification that I have just referred to. It may or it may not have been better for them to have warned Mr Davis that they were going to speak to counsel about the matter that he had raised with them, but even if it would have been better if they had, that cannot conceivably give rise to judicial review proceedings of their conduct in that respect, let alone their conduct generally in respect of this whole case.
20. That deals with the application for permission for judicial review against the Commission, since that was the only issue upon which this court allowed Mr Davis to re-open the matter. However, a great deal has actually happened since then, in addition to submissions made by Mr Davis since September, when the provisional findings were first issued. Amended grounds were received on 29th November, which now reveal that there is a head-on collision between Mr Davis and his court-appointed counsel, and that has been developed by Mr Davis in argument before us today. Further submissions were received on 9th, 14th, 16th, 17th and 22nd December.
21. On 22nd December, for the first time that the court is aware, the grounds were expanded to include complaint about the judge's refusal at trial to allow Mr Davis to "adopt" court-appointed counsel as his counsel until the end of the trial. All the further submissions in December are interlaced with general accusations of bias about the way in which the CCRC is going about its work.
22. Further submissions have come in in January the 4th, 7th, twice on that day, the 11th, 15th, 18th, 25th and, finally, on 1st February.
23. The battleground, principally, has shifted to the question of whether counsel should ever have seen him privately in conference, ever taken instructions from him, or taken notes, and the status of those notes, and the question of whether, having made the notes, or any notes, Mr Davis actually signed them as accurately representing the discussions that had taken place between counsel.
24. Those matters have been raised with great force, and some skill, by Mr Davis this morning but, as was pointed out to him in argument by my Lord, these are matters which are properly addressed to the CCRC itself and, at the close of his submissions to us, Mr Christie QC, who represents the CCRC today, undertook, as we would have expected he would, that the CCRC will indeed want to consider the general question of the role played by Ms Scott-Jones as court-appointed counsel, including, but no doubt not confined to, her taking instructions so as, perhaps, to be able better to cross-examine the complainant, and giving advice as to what might be thought of as tactical matters, such as who to cross-examine about what and when.
25. We were also informed by Mr Christie that the transcript of any proceedings which there may have been involving an application by Mr Davis to allow him to adopt Ms Scott-Jones, and the judge's ruling that he should not, is being sought and will be supplied to Mr Davis as soon as it is received, and, of course, considered by the Commission to see whether that has any bearing on their ultimate decision.
26. They have also undertaken to consider, if granted access to them, the notes of meetings that may have taken place with Ms Scott-Jones about the cross-examination and any other matters.
27. Mr Davis insists that he should have the notes first so that he can consider what he, as the "client", wants to do with them. Well, the one thing that is certain about that is that it is no part of this court's remit in hearing an application for permission in respect of the CCRC to start making orders to counsel, who is now party to the proceedings. That is a matter between him and her, and him and the CCRC, assuming the notes still exist.
28. There is, therefore, no ground for revisiting the original refusal of permission on 4th November in the light of the new submissions that have been made today and permission is accordingly refused.
29. In addition, the question of bail has been raised again. This is a topic which has been considered by the court a number of times. It arises because the Secretary of State for the Home Department has detained Mr Davis, following the completion of the 3-year sentence, many months ago now, pending his removal from this country as a result of the deportation order recommended by the court and confirmed by the Secretary of State. There has been no appeal specifically against that order.
30. Mr Davis submits that after 14 months, and with no immediate date for his incarceration to come to an end because of the lack of a final finding from the CCRC, the time has come when the Secretary of State cannot be said to be holding him in pursuance of the well-known principles of Hardial Singh.
31. The Secretary of State replies that the only reason for his being in custody is that he is to be deported at the earliest possible moment. He could be deported today were he not pursuing this litigation against the CCRC. An earlier attempt to resile from a consent order that deportation would not be effected until the CCRC had made its final decision was revoked, but the grounds for his detention remain in place.
32. On the previous occasion, on 4th November, that the case was before the court Mr Davis was informed by the court that bail could not even be considered by this court — the whole question of his detention — until he had exhausted his remedy by applying to the Asylum & Immigration Tribunal for bail. This he has done and the court now has the ruling of the Immigration Judge.
33. The Immigration Judge said:

"The applicant has a bad criminal record, having been found guilty of sexual assault on a female. He is subject to a deportation order.

He has not been removed because he has lodged a series of judicial reviews against the Criminal Cases Review Commission, by way of satellite litigation. I do not consider that the merits of that litigation would act as any form of incentive for him to comply with bail. I note that he has been refused bail not just by the AIT but also by the High Court on 16th June 2009 (per Forbes J).

The applicant complains of the length of his detention, but he has contributed to that by obstructing his removal. I have no confidence he would answer to bail."

34. In addition, following that, Collins J refused an urgent application for bail on 3rd December 2009. His application on that occasion contained the same grounds as he has put before us. They amount, in summary, to a submission that, because the case, he believes, is now so strong that any reasonable Commission would undoubtedly refer the case back to the Court of Appeal, Criminal Division, and any reasonable Court of Appeal would undoubtedly quash the conviction and order his immediate release, he should, as a result of the overwhelming strength of his case, be granted bail now.
35. In addition, he submits the grounds that I have already highlighted, that the rules which govern detention pending removal have now been breached because of the inordinate length of time that he has been in custody.
36. We have considered those submissions carefully but are unable to accede to them and therefore this second application for permission is also refused.
37. LORD JUSTICE ELIAS: I would only add this: so much of what Mr Davis has urged before us today is really directed at what he sees as the bad faith of the Commission. He considers that they are biased and are not properly going to consider the submissions he makes with respect to the provisional decision.
38. I have to say, I do not think that is a fair analysis of the way in which they have been behaving so far and I would urge him to co-operate in order to secure the best opportunity he has of having his case re-opened, but ultimately, of course, it must be a matter for him.
39. I ordered this matter to be re-opened because last time the issue arose about whether or not the Commission might have acted in breach of its obligations to respect his professional privilege with his counsel. The matter was raised for the first time on the last occasion and the Commission did not have a proper opportunity to deal with it and it became plain that it was a matter that was causing Mr Davis very grave concern and, for various reasons, was potentially severely damaging his health.
40. Having heard the explanation from the Commission, I agree with Mr Justice Calvert-Smith that, whilst it was, at least with hindsight, desirable that the Commission should have told Mr Davis that they were approaching the lawyer, there was no breach of privilege in so doing, because it was for counsel to take the point. In any event, that approach took matters nowhere so far as the challenge to the preliminary report is concerned.
41. The Commission have, very wisely and prudently, not sought to obtain the notes, which Mr Davis says exist, which the court-appointed counsel has. At the moment, he is not willing to waive privilege so as to allow them to see those notes. One can only say that without that waiver of privilege it is difficult to see what they would be able to make of the submissions being advanced by Mr Davis.
42. I also agree that the question of bail has been raised now on a number of occasions and I do think it should be granted. Indeed, I do not think there is a prima facie case raising a substantive case of unlawful detention against the Secretary of State and, in those circumstances, the question of bail does not arise.
43. I would, however, just say this — it is a small point — to the Secretary of State: if a court is told that somebody is using a number of aliases, then that does have connotations of chicanery and impropriety. If the explanation is, as Mr Davis tells us, that he was writing articles in circumstances where it would have been wrong for him, in accordance with his contract, to use his correct name, and this was something which journalists in his situation regularly do, as I do believe it is, then I think it would be wrong for the Secretary of State to persist in giving the impression, perhaps, that there was something rather more suspicious about the use of aliases than there may actually be.

(NB This is not part of the judgment. Retain as a note after judgment.)

44. THE CLAIMANT: My Lord, can I raise just two little things before? I appreciate your time. In your judgment today you said that the second provisional statement of reasons came as a result of me criticising the court-appointed counsel. That's not true, my Lords. The second provisional statement of reasons came when they were forced by this court, Keene LJ and Evans J, to give to me the disclosure of all the messages that were redacted from trial, suppressed from the jury. That was the reason why the first provisional statement of reasons was cancelled.
45. The second is more as a matter of desperation. I'm going to put it to you. I know I won't see the end result. It's a unilateral decision I've made. That's my own decision and I hope to bring it to the forefront of what's going on in this situation that is placed before me. I only -- that's no reflection on yourselves. That is a direct hit on the way the CCRC have acted against me, which I'm now going to not allow this to continue any longer. But I ask you kindly to consider the following, that I'm now left without any legal aid support and to bring the truth out (inaudible) I only ask for this court to consider giving me a legal aid certificate to help Alan Birkin (?) become on board. I don't know if you, first of all, have the jurisdiction to do it.
46. LORD JUSTICE ELIAS: We do not have the power to do that.
47. THE CLAIMANT: I will then be left in a situation where obviously, on a daily basis, this is going to deteriorate rapidly. Secondly, I would like to bring the truth out into the open. Thirdly, I am giving up the fight today. I think it's -- you made a judgment and I have to accept it. At least it's your judgment; it's not the CCRC's judgment. I respect that judgment. I may not agree with it, but I respect it because it's-- you guys didn't fall into those chairs by accident. And it's my strong belief that what has happened is a total miscarriage and I don't have any (inaudible), but I am asking if something can be done to persuade the Legal Aid Commission to help me with this, whether it's through yourselves or through the CCRC or through another channel, because of what is going to obviously happen after today's result. Today's result, in my view -- and I'm going to ask for another further favour, if I can have a copy of this judgment.
48. LORD JUSTICE ELIAS: Yes, you can have a copy of this judgment.
49. THE CLAIMANT: Thank you.
50. LORD JUSTICE ELIAS: Mr Davis, I know that you have set your --
51. THE CLAIMANT: It's not a reflection on yourself, my Lord. I appreciate both of you --
52. LORD JUSTICE ELIAS: I do think you ought to reconsider, but it is a matter for you. I hope you will take this in the way that it is intended. I quite understand why someone who claims that they have been wrongly convicted feels an immense sense of grievance, understandably, I do not dispute, and inevitably, too, people become obsessed with a case. That is understandably, too, but I would urge you to, if you are not going to take it further, try and put it behind you. Go back to South Africa and try and live a new life.
53. THE CLAIMANT: I can't, my Lord. I can't do it. I never did anything wrong and I'm not going to allow them to do this to me. And it's different but they didn't see it. It's different if these messages didn't exist and they were hidden -- that the police hid them so beautifully that they couldn't find. This is material that the CCRC have suppressed. My Lords, I can't allow that.
54. LORD JUSTICE ELIAS: Well, Mr Christie has been in court and the Commission. I am sure they will not lightly dismiss representations you have to make.
55. THE CLAIMANT: I'm branded a rapist. That's what I am. Today I'm a rapist. Because of my cocaine problems, I've now become a rapist. It's a far cry. I'm not going allow that to happen, my Lords. I'm not going to do that. What they've done to me, and what they continue to do to me, is deplorable. Somebody should stop them.
56. LORD JUSTICE ELIAS: Well, Mr Davis, I am not sure we can take it further. I am sorry.
57. THE CLAIMANT: Are you going to grant the legal aid certificate?
58. LORD JUSTICE ELIAS: I cannot do that. We cannot interfere with the statutory processes. It would be quite improper. We would be criticised for trying to influence an independent statutory body.
59. MR CHRISTIE: My Lords, what you said is terrible. Get back home and put it behind you. That's terrible, my Lord, to say that to me.
60. LORD JUSTICE ELIAS: Well, I am sorry if it was the wrong thing to say.
61. THE CLAIMANT: How can you put this behind you? Do you want me to go home as a convicted rapist?
62. LORD JUSTICE ELIAS: Not easily. I am just trying to see if you can look forward rather than backward.
63. THE CLAIMANT: I'm trying to get justice. Is there something wrong with that, my Lords?
64. LORD JUSTICE ELIAS: Anything else?
65. MR CHRISTIE: No, thank you very much.