Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 204
P677/13	OPINION OF LORD BURNS in the Petition DESMOND DINNELL Petitioner; for Judicial Review of Decisions of the Scottish Government dated 31 January and 18 October 2012 Respondents: ________________

Act: Paterson; Advocate; Digby Brown LLP

Alt: Sheldon, Q.C.; Scottish Government Legal Directorate

27 December 2013

Introduction
[1] This is a petition for judicial review of decisions of the Scottish Ministers (the respondents) refusing an application by the petitioner for compensation for a miscarriage of justice under section 133 of the Criminal Justice Act 1988 (the statutory scheme) and under the ex gratia compensation scheme administered by the respondents (the ex gratia scheme). The petitioner seeks declarator that the relevant decisions of 31 January and 18 October 2012 are erroneous in law, for reduction of those decisions and an order that the petitioner's application should be reconsidered. The matter called before me on 20 November 2013. The petitioner was represented by Mr Patterson, advocate and the respondents by Mr Sheldon QC.

Background
[2] The petitioner was convicted at Edinburgh High Court on 31 October 2002 of the rape of a 15 year old girl. He was sentenced to 6 years imprisonment at a deferred sentence on 21 November 2002 and placed on the Sex Offenders Register. He appealed against that conviction and was released on interim liberation on 6 December 2004 having spent 30 months in prison. His conviction was quashed by the appeal court on 17 December 2009. He was 28 years of age at the time of the alleged offence and was 35 when his conviction was quashed.

The appeal
[3] On 3 December 2002 the petitioner's notice of intention to appeal against conviction was lodged with Justiciary Office. He then sought an extension of time within to lodge his note of appeal against conviction. That was granted on 3 March 2003 and his note of appeal was lodged on 10 April 2003. The two grounds contained in that note of appeal alleged defective representation by his counsel and solicitors during the trial and a consequent denial of a fair trial. He was granted leave to appeal on those grounds on 31 July 2003.

[4] At a procedural hearing on 7 October 2004 the court allowed additional grounds of appeal to be received and directed that they be subject to the sifting processing. The first additional ground (ground (c)) related to fresh evidence set out in a report obtained by the appellant from Dr Adrian Linacre relating to new DNA evidence. Additional ground (d) contended that there had been a misdirection by the trial judge in relation to the question of corroboration. There was a further additional ground of appeal. On 18 November 2004 the court granted leave to appeal in respect of additional ground (c) and (d). Leave to appeal was refused in respect of ground (e).

[5] The petitioner's appeal was heard in part in May and June 2006. During that hearing Dr Linacre gave evidence. However, because of the illness of the advocate depute, the continued hearing of the appeal could not proceed. Thereafter because of the death of the Right Honourable Lord Johnston, the original bench could not be reconvened. Accordingly, the appeal court directed that the appeal be heard de novo including the evidence of Dr Linacre. The second appeal was heard over three days in October 2009 before a different bench. The court issued its opinion dated 10 December 2009 and found that the jury's verdict returned in ignorance of the evidence provided by Dr Linacre must be regarded as a miscarriage of justice and it allowed the appeal on additional ground (c) only.

The application for Compensation

[6] By letter dated 3 June 2010 solicitors acting for the petitioner applied for compensation under the statutory scheme. The respondents replied by letter dated 31 January 2012. It was recognised that the application required to be considered not only under the terms of the statutory scheme, but also the ex gratia scheme which allows the respondents to give compensation although that application may not meet the statutory requirements of the 1988 Act. Accordingly, both bases for compensation were considered.

[7] In relation to the statutory scheme, the author of the letter concluded that the petitioners application did not meet the criteria for eligibility under that scheme because his conviction had not been "reversed" within the meaning of section 133(5) of the 1988 Act.

[8] In relation to the ex gratia scheme, while compensation was in, certain circumstances, payable outwith the statutory scheme, that would only be the case either where it can be established that there has been serious default on the part of a member of the police force or other public authority resulting in a wrongful conviction or there are other exceptional circumstances. The author concluded that there had been no serious default in this case and then proceeded to consider whether any exceptional circumstances existed. The author concluded that there were no such circumstances which would merit compensation being paid in this case and the application was, accordingly, refused.

[9] The solicitors for the petitioner then wrote to the respondents by letter of 21 May 2012 requesting a review of the decision contained in the respondent's letter of 31 January 2012. An opinion of counsel had been obtained which was incorporated within that letter. Issue was taken in respect of the interpretation of section 133(5) and it was contended that, contrary to the view taken by the respondent, the circumstances of the petitioner's appeal fell squarely within the terms of section 133(5). The relation to the ex gratia scheme, it was contended that the circumstances of the petitioner's case were indeed exceptional and that even if the application did not fall within the statutory scheme, compensation should be paid ex gratia. As a result of that letter, a different decision maker considered the matter of new and came to the view that the original decision maker's decision was correct and explained his reasons therefor. It was concluded that the petitioner was not eligible for compensation in terms of the statutory scheme or the ex gratia scheme.

The petitioner's submissions
[10] Mr Paterson, on behalf of the petitioner, presented a clear and cogent argument under both the statutory scheme and ex gratia scheme. In relation first to the statutory scheme, section 133 of the 1988 Act insofar as material provides as follows:

"(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.

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

(a) on an appeal out of time;"

[11] Mr Paterson pointed out that the statutory scheme was introduced as a result of the United Kingdom Government's obligations under the International Covenant on Civil and Political Rights 1966 article 14 (the Covenant). Article 14.6 thereof provides as follows:

"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."

[12] In summary, the petitioner's argument was that the petitioner's conviction had been "reversed", on the ground that a new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice. The conviction had been "reversed" because the conviction had been reversed. It had been quashed or set aside on an additional ground of appeal lodged out of time within the meaning of subsection 5 of section 133. In terms of section 110(1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) a note of appeal must be lodged within 8 weeks of the lodging of the intimation of intention to appeal against a conviction. That note required to contain a full statement of all the grounds of appeal (see section 110(3)(b)). However, section 111(2) allows the period for lodging both the notice of intention to appeal and the note of appeal itself to be extended. It is provided, however, that an appellant cannot, except by leave of the court on cause shown "found any aspect of his appeal on a ground not contained in the note of appeal" (section 110(4)). As is pointed out in the High Court of Justiciary Practice Note 2 of 2010, the statutory scheme is that in the normal case all grounds to be argued should be contained in the original note of appeal.

[13] Accordingly, according to the petitioner's argument, the petitioner's conviction was quashed on an appeal "out of time" because first it was not lodged within the timescale provided for in terms of section 110(1) of the 1995 Act. Secondly, the conviction itself was quashed on the basis of the ground of appeal relating to fresh evidence contained in additional ground (c). That was, in fact, the only ground of appeal argued. It was that ground on which the conviction was quashed for the purposes of section 133(5) and that appeal was not lodged on time. As was pointed out in the Practice Note 2 of 2010, the 1995 Act does not recognise or expressly permit amendments to grounds of appeal or the lodging of additional grounds of appeal. When leave was granted to appeal on the additional grounds, those grounds were sent back to the sift to determine whether or not leave to appeal should be granted thereon. It was argued that the appeal at that time started anew and out of time.

[14] Mr Patterson pointed out that had the appeal proceeded solely on the original grounds and had been refused, the only avenue would have been to make an application to the Scottish Criminal Case Review Commission. Had the ultimately successful ground been advanced at that stage, then the petitioner's application would undoubtedly qualified under section 133(5). That demonstrated the arbitrary, unfair and absurd nature of the interpretation being placed upon section 133 by the respondents.

[15] I was referred to a number of cases which touched upon the interpretation of section 133. None of these cases was directly on point. In Niazi and Others v Secretary of State for the Home Department 2007 EWCA 1495 Lord Justice May stated at paragraph 19 as follows:

"Because his appeal was in time, his claim would not come within section 133 of the 1988 Act by reason of section 133(5)(a). It is to be supposed that appeals brought in time represent for these purposes the normal operation of a properly regulated criminal justice system, no more requiring compensation than an acquittal at first instance."

That observation did not assist in interpreting section 133 for the purposes of the sort of circumstances under examination in this present petition. There was recent discussion in the Supreme Court of the meaning of the phrase miscarriage of justice contained in the 1988 Act in the case of R (Adams) v Justice Secretary 2012 1 AC 48. At page 67 Lord Phillips of Worth Matravers examines the wording of article 14.6 of the covenant and points out material differences between that provision and section 133(5). He points out there that the reference to a final decision in the covenant is accommodated by a provision which defines "reversed" as referring to a conviction which has been quashed on an appeal out of time. The case, however, centres upon the proper meaning of miscarriage of justice in the context of section 133.

[16] Mr Patterson referred me to a number of decisions of the Criminal Appeal Court with a view to demonstrating that the present appeal was one which was "out of time". In Strachan v HMA 2011 HCJAC 28 Lord Carloway, delivering the opinion of the court, refused an amendment to a note of appeal and referred in paragraph 13 to the relevant statutory provisions. At paragraph 15 it was pointed out that only in exceptional circumstances would leave to amend a note of appeal would be permitted. However, I do not find any guidance there which assists in the question whether an amendment to a note of appeal granted outwith the statutory time limits renders that ground "out of time". Mr Patterson also referred to Duncan v HMA 2013 HCJAC 102 where the appellant had lodged a timeous note of intention to appeal but failed to lodge a note of appeal thereafter within the statutory time limits and his appeal was treated as abandoned. Four years thereafter he applied for an extension of time in which to lodge a note of appeal. The court stated at paragraph 6 that principles of finality and certainty dictate that it will be only in exceptional circumstances, where there are grounds which are likely to result in the sustaining of the appeal and some reasonable explanation for the delay is advanced, that the court will countenance allowing a note of appeal to be lodged several years after conviction. Mr Patterson pointed out that the test of exceptional circumstances is applied both to the case where grounds additional to those contained within a timeous note of appeal and to the case where no note of appeal is lodged timeously but an extension to lodge a note of appeal is made a considerable time after the statutory time limits. However, it is important to recognise that in the case of Duncan v HMA the appeal was treated as abandoned. There was therefore no pending appeal in that case by the time an application for the extension of time in which to lodge a note of appeal was made.

[17] In relation to the ex gratia scheme Mr Patterson highlighted what he submitted was an irrational and unreasonable approach contained within the first decision letter. On page 3 of the letter of 31 January 2012 the author of the letter examines whether there are exceptional circumstances which might justify the payment of compensation outwith the statutory scheme. It could not be contended that the petitioner's conviction resulted from some serious default on the member of the police force or some other public authority. Accordingly, it was necessary, if any payment could be made under the ex gratia scheme, that some exceptional circumstances were found to be present. At page 3 the author of the letter says:

"It is clear from the documents provided that the length of time between the trial and the appeal was some 7 years and I note the reasons contained in the High Court interlocutor sheets provided. However, Mr Dinnell did not spend this length of time in custody. I note that Mr Dinnell was released in December 2004 after being in custody for around 2 years and 5 months. Whilst the length of time between the trial and the appeal does seem to be exceptional long, I do not consider that the length of time Mr Dinnell spent in custody to be exceptional. It is not uncommon for individuals to spend a similar length of time in prison until their appeal is heard."

[18] The author also considered that the fact that the petitioner was not "completely exonerated" (ie where it can conclusively be established that the accused person did not commit the crime) was a relevant circumstance and demonstrated that there were no factors of an exceptional nature meriting an award.

[19] Mr Patterson argued that it was wholly irrational to find on the one hand that the period of time between trial and appeal was exceptionally long but on the other hand to find no exceptional circumstances existed. Here, the period of 71/2 years between the conviction and the final disposal of the appeal was not only exceptional but provided an exceptional circumstance justifying payment under the ex gratia scheme. During the whole of that period the petitioner had been stigmatised as a child rapist and was on the Sex Offenders Register. The second decision letter of 18 October 2012 did not remedy this irrational approach. In the consideration of exceptional circumstances in that letter it is acknowledged that the lapse of time between conviction and disposal of the appeal is a factor but only one factor. It was considered that greater significance must attach to the period actually spent in custody. There was, however, no departure from the conclusion in the first letter that the period of time between trial and disposal of the appeal was exceptionally long.

[20] I was referred to the opinion of the court delivered by Lord Hardie in SS (AP) v The Secretary of State for the Home Department 2010 SCIH 72 at paragraph 13. There his Lordship set out a classical definition of what constitutes an error of law. Where a tribunal has misdirected itself in law, entertained the wrong issue, proceeded upon a misapprehension or misconstruction of the evidence, taken into account irrelevant matters or failed to take account of relevant ones, or has reached the decision so extravagant that no reasonable tribunal, properly directing itself on the law, could have arrived at, are all set out as examples of an error of law.

[21] Here, the decision maker had failed to take account of the fact that the 71/2 year period was exceptionally long. That was a relevant consideration which was subsequently ignored. In addition, the decision maker had taken account of an irrelevant consideration namely that the petitioner had not been "completely exonerated".

[22] In response, Mr Sheldon on behalf of the respondents submitted that no error of law had occurred in this case to vitiate the decision to refuse compensation either under the statutory scheme or the ex gratia scheme.

[23] In relation to the argument that the application met the statutory criteria under section 133(5) of the 1988 Act, Mr Sheldon submitted that this appeal was not one which was "out of time" within the meaning of that section. He submitted that there was an important distinction to be made in the language used in the appeal provisions of the 1995 Act between an appeal against conviction and the grounds for that appeal. In summary, it was argued that amendment to a note of appeal by the addition of further grounds to it, formed part of one appeal. The amended grounds to the note of appeal could not be separated from the original note of appeal itself and the former said to be out of time.

[24] Mr Sheldon referred me to a number of cases of the Criminal Appeal Court to illustrate that submission. In Lilburn 2011 HCJAC 39 the court considered an application for leave to amend grounds of appeal. At paragraph 7 the Lord Justice General emphasises that the expeditious disposal of appeals requires that any application to amend the grounds of appeal be presented as soon as any proper basis for such application becomes available.

[25] In Mitchell v HMA 2011 SLT 864 the court required to consider an application to tender further grounds of appeal against conviction during the course of an appeal against sentence. It emphasised the distinction between appeals against conviction and appeals against sentence. Again, the court at paragraph 11 noted the distinct nature of appeals against conviction and those against sentence. It also noted in paragraph 12 that steps had been taken specifically to ensure that all the grounds which were thought to be advanced against conviction were addressed after which the court refused the appeal against conviction. That represented a final order in respect of the conviction and his appeal against conviction was thereby exhausted.

[26] In relation to the argument under the ex gratia scheme, Mr Sheldon referred to the decision of the Master of the Rolls in R v Secretary of State for the Home Department 1994 WL 1060622. His Lordship delivering the opinion of the court, considered an argument in relation to the Secretary of State's decision not to allow compensation under the ex gratia scheme on the basis that there was no serious default on the part of a member of the police force. His Lordship emphasised the limited scope that the court had to interfere with such a decision. If it was open to the Secretary of State to conclude no serious fault existed, the court ought not to interfere. As to exceptional circumstances, his Lordship stated that it was essentially a question for the Secretary of State as to what he regarded as an exceptional case and it was difficult to imagine circumstances in which this court could properly interfere with a judgment by him that a case was not so exceptional as to justify special treatment.

[27] In this case the decision maker had considered carefully whether exceptional circumstances existed and the decision was cogent and rational. The decision maker had a wide discretion as to whether to award compensation under the ex gratia scheme and the court should be slow to interfere with the exercise of that discretion.

[28] The decision maker was also entitled to have regard to the fact that the decision of the Appeal Court did not suggest that the petitioner was innocent of this crime. There was no suggestion that the verdict was unreasonable or that there was insufficient evidence to convict. He referred to the statement by the then Home Secretary, Mr Douglas Hurd of November 1985 which is set out in the case of R v Secretary of State for the Home Department, cited above. The Home Secretary stated inter alia,

"There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts may emerge at trial, or on appeal within time that completely exonerates the accused person."

Accordingly, mirroring the terms of article 14.6 of the covenant, on appeals within time where it emerges that the accused is "completely exonerated", that can constitute an exceptional circumstance which might justify the payment of compensation under the ex gratia scheme. That consideration was a legitimate and relevant one and was correctly found to be absent in this case.

Discussion and Decision

[29] In relation to the statutory scheme, I consider that this appeal was not one which can be said to have been out of time within the meaning of that expression where it appears in section 133(5) of the 1988 Act. In this case, the petitioner had intimated a notice of intention to appeal and a note of appeal containing certain grounds within the statutory time limit. He therefore had a live appeal against conviction which then proceeded. In my opinion, his appeal against conviction was allowed to be expanded by the allowance of additional grounds of appeal. Those additional grounds did not constitute a new appeal against conviction but the amended grounds form part of the original appeal. In Mitchell v HMA (cited above) at paragraph 13 the court comes to the view that it is implicit in section 110(4) of the 1995 Act that there is a live appeal when that sub-section is invoked. Since in that case that section was invoked when the appeal against conviction had been determined, there was no live appeal against conviction at all. However, in the present case, when that section was invoked an appeal against conviction was still live and the court, in allowing amended grounds of appeal, in my view, merely extended the scope of the live, existing appeal. I therefore reject the first argument advanced by the petitioner.

[30] I accept that the Scottish ministers have a wide discretion in considering whether or not payment should be made under the ex gratia scheme. It seems to me that it exists to allow such payment to be made even though a conviction is quashed in the course of what can be termed "the normal appeal procedure" in accordance with the provisions of the 1995 Act. For example, if it emerges during the course of a trial or during the appeal process thereafter that the conviction resulted from malpractice on the part of a police officer, then although not falling within section 133, compensation could be paid. Outside that category of case, exceptional circumstances include facts emerging at trial or on appeal within time that completely exonerate the accused person. If the decision was one which was open to the Scottish ministers to make in the particular circumstances, I accept that this court could not interfere. However, I did not understand Mr Sheldon to contest the proposition that, if the decision was unreasonable in the Wednesbury sense, then it was reviewable in this court. However, such a decision would have to be shown to be unreasonable, irrational or nonsensical before this court could proceed to interfere with it.

[31] I have come to the view that the conclusion in the first decision letter that the 71/2 years between the trial and the conclusion of the appeal to be exceptionally long cannot be reconciled with the conclusion that there are no exceptional circumstances here. The fact that the actual time spent in custody following his conviction was shorter than that period and unexceptional does not necessarily detract from the exceptional circumstance of the 71/2 year period. In my view, that circumstance alone is at least capable of constituting an exceptional circumstance and it was incumbent upon the decision maker to explain why, having found that period to be exceptionally long, there were nevertheless no exceptional circumstances existing in this case. The second decision letter recognises that a period of 71/2 years is a factor in the consideration of exceptional circumstances but states that greater significance must attach to the period actually spent in custody. However, that does not detract from the conclusion reached by the original decision maker in the first decision letter that the 71/2 year period was in itself an exceptionally long period and did not explain why in that situation no exceptional circumstances existed.

[32] I cannot accept, however, that the respondents were precluded from having regard to the fact that the petitioner had not been completely exonerated by the decision of the Appeal Court. The appeal against conviction was allowed on the basis of fresh evidence which would have been bound to have had a material effect on a jury's consideration of the matter. There was no indication, as Mr Sheldon submitted, that the Appeal Court considered that there was no evidence which could justify a conviction. Of course, if an appeal court or, indeed, a trial court can conclude that the accused is completely exonerated, that will found a basis upon which an ex gratia payment could be made. The fact that no such circumstance arose here was a relevant consideration to which to have regard.

[33] In the circumstances, I will pronounce declarator in terms of paragraph 3(ii) of the petition in respect that the issuing of the decisions relative to the ex gratia scheme failed to take account of material and relevant considerations and that the decisions in relation to that scheme were irrational and unreasonable. I will reduce those decisions and order that the petitioner's application for compensation should be reconsidered in terms paragraphs 3(iii) and (iv). I shall meantime reserve all questions of expenses.