Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 7

P677/13

Lord Eassie

Lord Brodie

Lady Clark of Calton

OPINION OF LORD EASSIE

in the Reclaiming Motion on Petition and Answers

 

by

 

DESMOND DINNELL (AP)

Petitioner and Respondent;

against

THE SCOTTISH MINISTERS

Respondents and Reclaimers:

for Judicial Review

Act:  Duncan QC, Paterson;  Digby Brown LLP

Alt:  Sheldon QC;  Scottish Government Legal Directorate

20 January 2015

[1]        The opinion delivered by Lady Clark of Calton in this reclaiming motion by the Scottish Ministers helpfully sets out the factual circumstances underlying this petition for judicial review, which challenges decisions of the Scottish Ministers refusing an application by the petitioner for compensation under a non-statutory ex gratia scheme for compensating persons who have spent a period in custody and have been wrongfully convicted of a criminal charge. Her Ladyship’s opinion similarly sets out the terms of the decision letters and the statements made to Parliament by the Secretary of State for Scotland and the Home Secretary on the making of such ex gratia payments.

[2]        In brief, the ministerial statements acknowledge that payment should be made where the person concerned has spent a period in custody following a wrongful conviction which has resulted from a serious default on the part of the police or other public authority; and that payment may be appropriate in other “exceptional circumstances”. The statement by the Home Secretary gives as one example of such exceptional circumstances the emergence of facts which completely exonerate the person in question. The petitioner does not maintain that his case comes within the first category (serious default by a public authority); he contends that the circumstances of his case- in which seven years elapsed between his conviction and the allowance of his appeal – amount to exceptional circumstances. The petitioner served 29 months in prison and throughout the seven year period he was subject to the stigma of having been convicted of the rape of a fifteen year old and the notification requirements imposed in consequence by the Sex Offenders Act 1997, and its successor.

[3]        It is not in dispute that the Ministers enjoy a very wide discretion in deciding whether exceptional circumstances justifying payment of compensation exist; but that in exercising that discretion they must act fairly and rationally and the reasons given for their decision should demonstrate that they have so acted (cf Re McFarland [2004] UKHL 17; [2004] WLR 1289). As counsel for the petitioner indicated at the outset of his submissions in response to counsel for the Scottish Ministers, the issues in this case are concerned not with construing the policy but, rather, with whether the terms of the decision letters showed that the decision had been reached on adequate and rational grounds.

[4]        In that respect counsel for the petitioner advanced a number of criticisms of the reasoning contained in the letters. In addition to what is narrated in the opinion of Lady Clark, the opinion of Lord Brodie sets out and discusses those criticisms. I am grateful to Lord Brodie for that discussion, in which Lord Brodie explains why he finds the criticisms to be justified. I am in agreement with the reasons given by Lord Brodie for reaching that conclusion and I do not consider it necessary to add to those reasons.

[5]        I accordingly agree with Lord Brodie and with Lady Clark of Calton that the reclaiming motion presented by the Scottish Ministers should be refused; and that we should adhere to the interlocutor of the Lord Ordinary in which he reduced the decisions in question.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 7

P677/13

Lord Eassie

Lord Brodie

Lady Clark of Calton

OPINION OF LORD BRODIE

in the Reclaiming Motion on Petition and Answers

by

DESMOND DINNELL (AP)

Petitioner and Respondent;

against

THE SCOTTISH MINISTERS

Respondents and Recalaimers:

for Judicial Review

 

Act:  Duncan QC, Paterson;  Digby Brown LLP

Alt:  Sheldon QC;  Scottish Government Legal Directorate

20 January 2015

[6]        I am grateful to your Ladyship for setting out the history of this matter, including an outline of the ex gratia scheme and the principal terms of the decision letters;  together with a summary of the submissions of parties.

[7]        As appears from your Ladyship’s opinion, the claim for compensation made on behalf of the now respondent on 3 June 2010 and reiterated as a request for review on 21 May 2012, was considered by the reclaimers both under reference to section 133 of the Criminal Justice Act 1988 (“the statutory scheme”) and the ex gratia scheme.  It was refused under each scheme.  In his application for judicial review the respondent challenged each refusal as unlawful.  The Lord Ordinary upheld the challenge only in respect of refusal under the ex gratia scheme.  He decided that the respondent’s claim was not comprehended by the statutory scheme.  The respondent marked a cross-reclaiming motion against the Lord Ordinary’s decision as to the respondent’s entitlement to claim under the statutory scheme but the respondent has not insisted in this cross-reclaiming motion.  Accordingly the issue before the court was restricted to the lawfulness of the repeated refusals to make compensation under the ex gratia scheme.

[8]        It was uncontroversial that the reclaimers have a wide discretion when considering whether there are exceptional circumstances that justified the payment of compensation to people who have spent time in custody following a wrongful conviction outside the category of a conviction arising from serious default on the part of a member of a police force or some other public authority.  It was however accepted on behalf of the reclaimers that they had to act fairly and rationally when exercising this discretion and to demonstrate by the reasons set out in their decision letters that they had done so.

[9]        Agreeing with the submission made on behalf of the respondent and with your Ladyship, I do not consider that the reclaimer’s letters of 31 January 2012 and 18 October 2012 demonstrate rational and adequately reasoned exercises of their undoubtedly wide discretion in determining the question as to whether there were, in the respondent’s case, exceptional circumstances that justify compensation.  It follows that I agree that the reclaiming motion should be refused.

[10]      The ex gratia scheme does not envisage the payment of compensation merely as a result of acquittal on appeal.  An acquittal because “the prosecution was unable to sustain the burden of proof beyond reasonable doubt in relation to the specific charge that was brought”, falls to be regarded as a normal incident of a properly functioning criminal justice system, notwithstanding that the successful appellant may have spent a period of time in custody.  For compensation to be payable there must have been default on the part of the police or other public authority, or “exceptional circumstances”.  What sort of circumstances these may be is not identified, other than that they must be “exceptional”.  With this in mind, I turn to the reclaimers’ first letter, the letter of 31 January 2012.  Mr Sheldon submitted that that letter should be read with the second letter of 18 October 2012.  I am not satisfied that this must be so.  The first letter contained a decision in respect of an application for compensation made by the respondent’s agents’ letter of 3 June 2010, whereas the letter of 18 October 2012 contained a further decision following on a review of the claim as made in the agents’ letter of 21 May 2012.  However, I do not see that it matters whether one reads the first and second letters together or separately.  This is not a case where something material is omitted by one but supplied by the other.  It is certainly not the case that the reclaimers’ position becomes any stronger when the two letters are considered at the same time;  rather the opposite.  At all events, I agree with Mr Duncan’s submission that the reasons in neither letter are sufficient to allow an understanding of what was the basis of the reclaimers’ decisions.  The principal significance of that is that there arises a real doubt as to whether the relevant factors were taken into account in the exercise of the reclaimers’ discretion and whether there was a rational basis for the decisions which were reached.  

[11]      In the reclaimers’ first letter the writer notes that the length of time between the trial and the appeal was some 7 years.  This was something to which the respondent’s agents had drawn attention to in their letter of 3 June 2010.  I shall refer to this as “the time to acquittal”.  The writer of the first letter, in the context of an examination as to whether there are exceptional circumstances assesses the time to acquittal as “exceptionally long”.  While she notes that the respondent was released in December 2004 with the result, according to the writer, that his time in custody was not exceptional, that does not qualify the exceptional length of the time to acquittal.  The same can be said about the writer’s observation that the respondent “was not completely exonerated”.  Nevertheless, without any explanation whatsoever, the writer felt able to conclude that she had found “no factors of exceptional nature that would merit compensation”.  Mr Sheldon emphasised the “justify compensation” limb of “exceptional circumstances that justify compensation” and I would accept that there may be circumstances which could be regarded as exceptional which were not such as to justify compensation but, if that was the writer’s approach, it was for her to explain it in the first decision letter.  In the absence of explanation the natural reading of the first letter is that what is described as an exceptional factor was left entirely out of account on no discernible rational basis.  That was the view of the Lord Ordinary and in my opinion he was correct. 

[12]      The matter becomes even less clear on turning to the reclaimers’ second letter.  There the writer acknowledges that the time to acquittal is different from the time spent by the respondent in custody, but, he adds, the time to acquittal is “only one factor”.  Taken in isolation and assuming that what is under consideration is the exceptional nature of the whole circumstances, that might be true, but this is to acknowledge that there was at least this one factor of an exceptional nature:  something which had been expressly repudiated in the first letter.  While the matter is slightly complicated by the reference to the respondent’s conviction being subsequently overturned in the “normal” course of the appeal process, the same appeal process which had been described as “exceptionally long”, I consider that Mr Duncan was justified when he submitted that the irrationality apparent on the face of the first letter was compounded by the terms of the second letter.  As Mr Duncan put it, the time to acquittal was first “not in the mix” then it “was in the mix”.

[13]      In their letter of 21 May 2012 the respondent’s agents drew attention to the fact that as well as having been in custody for a period of 2 years and 5 months, during the whole of the time to acquittal the respondent had to bear the stigma of being identified as the rapist of a child.  The letter also mentions the adverse impact of conviction on the respondent’s family life.  Although not specifically referred to in that letter, as was acknowledged by Mr Sheldon before this court, during the whole of the time to acquittal, the respondent was subject to onerous notification requirements imposed in terms of the (then applicable) Sex Offenders Act 1997.  I agree with the submission made by Mr Duncan that it was irrational for the reclaimers, without anything by way of explanation, on one hand to acknowledge that the time to acquittal was exceptionally long and yet leave out of account (or at least provide no analysis of) the full consequences for the respondent of the length of that time. 

[14]      Mr Duncan’s note of argument criticises the second letter for the absence of any explanation as to why greater significance “must” attach to the period the respondent spent in custody as opposed to the overall length of the time to acquittal.  While I see the force of that criticism, my own reading of the relevant passage would rather be to reinforce the slightly different point to which I have just referred, that the reclaimers have neither recognised nor taken into account the adverse consequences for the respondent of his conviction, beyond the matter of his being in custody. 

[15]      Ground of appeal 6 for the reclaimers introduces the notion of the time to acquittal being “outweighed” by the supposedly unexceptional period spent by the respondent in custody and by the consideration that he was not completely exonerated by his acquittal.  If that is in fact how the reclaimers proceeded, and there is enough in the way that the first letter is phrased to suggest that it might be, then that certainly was irrational.  It is one thing to note the absence of factors which, if present, might have weighed in the respondent’s favour.  It is another thing to make their absence act as a counter-weight to a factor which should have been had regard to as pointing to the exceptional nature of the circumstances of the case.  If, as Mr Duncan put it, two absent factors were brought into the balance in order to outweigh one present factor, the conclusion that the reclaimers’ decision-making was irrational is strongly reinforced. 

[16]      I have mentioned the factor referred to in ground of appeal 6, if it be a factor, that the respondent was not “completely exonerated”.  I can understand that if, in what would be an unusual case, a claimant had been completely exonerated from the charge of which he had been convicted, that might provide a powerful reason for an award of compensation.  Apart from anything else such an event is probably so unusual that it merits the description of an exceptional circumstance.  While the writer of the second letter acknowledges that it is not the function of the Appeal Court to determine whether or not an appellant should be completely exonerated, it is not entirely clear that the writer of the first letter understood that.  She seemed to have looked at the Appeal Court’s opinion in order to discover whether the respondent had indeed been completely exonerated.  Curiously, that reference follows a passage which suggests that the writer thought that it was open to her to come to an independent view on the matter.  She notes that the fresh DNA evidence could arguably point to the respondent’s innocence but, notwithstanding that, because the respondent’s representatives chose not to press other grounds of appeal, the writer of the letter seems to consider that that somehow closed off the avenue to consideration of complete exoneration on which she might otherwise have embarked.  The writer of the second letter confines himself to the enigmatic single sentence:  “In the present case I am satisfied that the effect of the appeal was not complete exoneration”.  While it is undoubtedly true that acquittal and complete exoneration are not the same things, just what intellectual process brought the writer of the second letter to being “satisfied” as to the respondent not having been completely exonerated is simply not disclosed.  Again, in the absence of anything by way of explanation, one cannot be confident that there is a fully thought-out basis for the reclaimers’ conclusion.

[17]      As previously indicated, in my opinion this reclaiming motion should be refused.

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 7

P677/13

Lord Eassie

Lord Brodie

Lady Clark of Calton

OPINION OF LADY CLARK OF CALTON

in the Reclaiming Motion

on Petition and Answers

 

by

 

DESMOND DINNELL (AP)

Petitioner and Respondent;

against

THE SCOTTISH MINISTERS

Respondents and Reclaimers:

for Judicial Review

Act:  Duncan QC, Paterson;  Digby Brown LLP

Alt:  Sheldon QC;  Scottish Government Legal Directorate

20 January 2015

The reclaiming motion
[18]      The petitioner and respondent has brought this petition for judicial review which challenges decisions of the respondents and reclaimers to refuse compensation under an ex gratia compensation scheme for persons who have spent a period in custody following wrongful conviction of a criminal charge.  The Lord Ordinary, having heard submissions by counsel on the petition and answers at the diet of first hearing of judicial review on 21 November 2013 issued an interlocutor dated 27 December 2013 which states:

“The Lord Ordinary… finds and declares 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;  reduces those decisions and orders that the Petitioner’s application for compensation should be reconsidered…”

 

In this reclaiming motion the respondents and reclaimers (“the reclaimers”) seek to review said interlocutor.

[19]      A cross appeal by the petitioner and respondent (“the respondent”) in relation to the statutory scheme for compensation under section 133 of the Criminal Justice Act 1988 was not insisted upon.

 

History
[20]      On 31 October 2002, the respondent was convicted of the rape of a 15 year old girl.  He was sentenced to 6 years’ imprisonment on 21 November 2002; by reason of the conviction he became subject to the notification requirements and restrictions applicable to sex offenders.  He appealed against that conviction.  He was released on interim liberation on 6 December 2004 having spent 30 months in prison.  He remained subject to sex offenders’ notification requirements and restrictions.  The appeal process which involved hearing fresh evidence relating to new DNA evidence was complex and there were procedural difficulties and delay.  The conviction was quashed by the appeal court on 17 December 2009.  The appeal court were satisfied that the guilty verdict, returned in ignorance of the fresh evidence, must be regarded as a miscarriage of justice.

[21]      The history is set out in detail by the Lord Ordinary in paragraphs 2 to 9 of his opinion dated 27 December 2013.  The opinion of the criminal appeal court dated 10 December 2009 sets out the history and basis of the respondent’s appeal against conviction and the reasons for the decision of the Appeal Court. 

[22]      Thereafter solicitors acting for the respondent made application for compensation under the statutory scheme only.  The reclaimers in a letter dated 31 January 2012 considered the application under the statutory scheme and also under the ex gratia scheme.  The reclaimers refused the application.  By letter dated 21 May 2012, the respondent sought a review.  There was no entitlement to any review but the reclaimers considered said letter.  They refused compensation in their letter dated 18 October 2012.  Said letters of 31 January 2012 and 18 October 2012 were drafted by officials for the reclaimers and are the decision

letters which are the subject of the judicial review proceedings.

 

The ex gratia scheme:  Ministerial Policy Statements
[23]      On 23 January 1986 the Secretary of State for Scotland in a written Parliamentary answer to a question about payment of compensation to persons who have been wrongly convicted of criminal offences, explained the historical position, the Government’s compliance with the International Covenant on Civil and Political Rights 1966 (“ICCPR 1966”) and stated:

            “I am, moreover, prepared to pay compensation to people who… have spent a period in custody following a wrongful conviction or charge, where I am satisfied that this has resulted from serious default on the part of a member of a police force or of some other public authority;  and there may be exceptional circumstances that justify compensation in cases outside these categories.  I will not, however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond reasonable doubt in relation to the specific charge that was brought ...”  (Hansard 23 January 1986 cols 237‑8)

 

No examples were given of what the Secretary of State for Scotland considered “may be exceptional circumstances”.

[24]      In an earlier statement made by the Secretary of State for the Home Department on 29 November 1985, an oral answer in Parliament was given in virtually identical terms to the written statement which followed on 23 January 1986.  One example was given describing what may fall within the description “exceptional circumstances”.  The Secretary of State stated:

“in particular, facts may have emerged at trial, or on appeal within time, that completely exonerates the accused person” (Hansard 29 November 1985 cols 689-90).

 

[25]      The continuation of the policy for ex gratia compensation, announced by the Secretary of State for Scotland, was confirmed on 2 September 1999 by one of the Scottish Ministers to the Scottish Parliament.

[26]      In the written answer dated 23 January 1986, specific reference was made by the Secretary of State for Scotland to the ICCPR 1966 which was ratified by the UK and entered into force on 23 March 1976.  Article 14(6) of the ICCPR states:

“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.”

 

The letters dated 31 January 2012 and 18 October 2012
[27]      The letter dated 31 January 2012 states:

“… We have, in addition, examined whether there was ‘exceptional circumstances’ in Mr Dinnell’s case such that would merit his application for compensation being approved.  It is clear from the documents provided that the length of time between the trial and the appeal was some seven 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 two years and five months.  Whilst the length of time between the trial and the appeal does seem to be exceptionally 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.

 

Furthermore it is noted in this case that Mr Dinnell was not completely exonerated.  Complete exoneration will only arise where it can conclusively be established that the accused person did not commit the crime.  Acquittal of an offence in itself is not complete exoneration.  In your letter of 3 June 2010 you mention that there were five grounds of appeal.  Whilst other evidence contained in the Appeal Court Opinion, such as the complainer’s description of the attacker, and the fact that the DNA present on the complainer did not match that of Mr Dinnell, could arguably point to Mr Dinnell’s innocence of the crime, these other issues were not established by the Court.  I therefore can see nothing in the Appeal Court Opinion that would indicate that Mr Dinnell was completely exonerated.

 

Whilst complete exoneration is only a significant factor and not the only factor that would point towards exceptional circumstances in any case, we looked for and considered whether any factors of an exceptional nature existed that would merit an award of compensation being made.

 

On the basis of the information provided to us we consider that there are no factors of an exceptional nature that would merit compensation being paid in this case.

 

We, therefore, consider that Mr Dinnell is not eligible for compensation under the ex gratia scheme.  Mr Dinnell appealed his conviction and he had his conviction quashed.  The appeal system machinery which exists to correct any failings that occur at the trial at first instance achieved that purpose in his case.”

 

The letter dated 18 October 2012 states:

“… Consideration of exceptional circumstances

I note your submission on behalf of your client indicates that the length of time spent in custody and the longer period of time between his interim release and the eventual quashing of his conviction constitute ‘exceptional circumstances’.  The overall lapse of time between the conviction and the disposal of the appeal is only one factor.  The greater significance must attach to the period actually spent in custody, and your client was granted interim release when new evidence first emerged in 2004 which called into question the safety of his conviction.  Thereafter his conviction was subsequently overturned in the normal course of the appeal process which exists to identify such miscarriages of justice.  I do not consider that the length of time your client spent in custody constitutes exceptional circumstances, whether viewed in isolation or in conjunction with the other circumstances, including those you have identified.

 

I also note your comments concerning complete exoneration.  While it is accepted that it is not the function of the Appeal Court to determine whether or not an appellant should be completely exonerated, it is appropriate in the context of the ex gratia scheme to consider whether or not that is the practical effect of a successful appeal, as the fact of complete exoneration would be a significant factor.  By way of illustration, the corresponding ex gratia scheme formerly operated in England and Wales was based on a statement to Parliament by Douglas Hurd which specifically referred to complete exoneration as a situation that might satisfy the ‘exceptional circumstances’ criteria.  In the present case I am satisfied that the effect of the appeal was not complete exoneration.

 

Conclusion

Having considered the submission raised on your client’s behalf, I can find no new or previously known relevant matters that would change the Scottish Government’s determination of your client’s claim for compensation.  In considering all the circumstances, together and separately, our conclusion remains that Mr Dinnell is not eligible for compensation either in terms of the statutory compensation scheme or the ex gratia scheme.”

 

Submissions by counsel for the reclaimers
[28]      Senior counsel adopted his written note of argument.  He set out the history of the ex gratia scheme and the significance of the ICCPR 1966.  He submitted that the ex gratia scheme was based on a Ministerial Policy Statement which gave very wide discretion to the reclaimers.  That is plain from the use of the unqualified words that compensation is payable where there may be “exceptional circumstances”.  Consideration of what circumstances may satisfy that very wide test is a matter for the discretion of the reclaimers.  The only requirement is that the reclaimers, as decision maker, should act fairly and rationally and the court should be slow to interfere with such decision making, given the nature of the decision making and the breadth of the discretion.  Counsel made reference to R (ex p. Batemen and Howse) v Secretary of State for the Home Department (Court of Appeal, 17 May 1994) 1994 WL 106 0622.  In that case Sir Thomas Bingham MR referred to the Ministerial Policy Statement in 1985 relating to the ex gratia scheme and stated:

“It was essentially a question for the Secretary of State as to what he regarded as an exceptional case.  It is 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...”

 

Counsel submitted that the question of what may be exceptional circumstances which justified compensation, takes some colour from the general context of the statement.  Merely spending a period in custody in circumstances where the prosecution eventually fails is not exceptional circumstances.

[29]      Under reference to In re McFarland [2004] 1 WLR 1289, Lord Bingham paragraphs 6 and 7 and Lord Scott paragraphs 40 to 41, counsel emphasized that it is Ministers who are accountable for the expenditure of public money.  Ministers are right to be circumspect about making gratuitous payments in a difficult and sensitive area where there has been a miscarriage of justice.  Ministers are best placed to make decisions about whether compensation should be paid in principle, provided there is no irrationality or unfairness in the decision making.

[30]      Counsel submitted that the reclaimers were under no obligation to carry out a review but they did so in their letter dated 18 October 2012.  He submitted that the two decision letters should be read together.  The reasons given are substantially the same, albeit expressed in slightly different terms.  When the decision letters were properly analysed, there was no justifiable basis in law for the Lord Ordinary to intervene.  Counsel also prayed in aid Regina (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72, Hooper LJ in paragraphs 118 to 120.  He accepted that the court has a role in deciding what policy means, albeit usually it means what it says.  The role of Ministers is to apply the policy to individual cases being in mind that a policy is a guide not a rule and like cases ought to be treated alike.

[31]      Turning to the Lord Ordinary’s decision, in particular paragraphs 28 to 32, counsel made two main submissions.  Firstly, the Lord Ordinary missed the point in asking whether there were exceptional circumstances in the case.  The real question is whether the circumstances are to be regarded as exceptional to justify the award of compensation.  Secondly, even if there was a problem with the first decision letter in that there was some contradiction in describing the length of the appeal process as “exceptional” but not finding that they were “exceptional circumstances”, this was corrected in the second decision letter which made the reasoning plain.  When read together it was plain that the decision letters looked at all the relevant factors including the length of the appeal process, the fact that the respondent was not fully exonerated and concluded that there were no exceptional circumstances to justify a grant of ex gratia compensation.  This was well within the wide discretion open to the decision maker.  The Lord Ordinary erred in his approach and conclusion and the reclaiming motion should be allowed.

 

Submissions by counsel for the respondent
[32]      Counsel adopted his written note of argument and invited the court to refuse the reclaiming motion.  He submitted that there were essentially two issues.  Firstly, the rationality and reasonableness of the decision letters and secondly, the lack of intelligibility of the reasons.  The submission appeared to proceed on the basis that these issues were interconnected.

[33]      Counsel prayed in aid, Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315, in particular Lord Reed at paragraph 70.

[34]      Counsel accepted that it was appropriate to read the two decision letters together as they set out the reclaimers’ reasons for the decision to refuse an ex gratia payment of compensation.  He made detailed criticisms of the decision letters which he submitted demonstrated the irrationality of the reasoning in the letters.  He submitted that there was no reference at all to an exceptional feature of this case, that the respondent had remained on the sex offenders’ register as a convicted rapist for over seven years.  Counsel referred to the lack of analysis and irrationality in the balancing exercise which appears to have been carried out.  In the first decision letter, the reclaimers appear to accept that the period between conviction and the appeal decision quashing the sentence was exceptionally long but it is not clear what they concluded from that.  The reclaimers embark on a balancing exercise but it is not clear what they were balancing or even if it was appropriate to carry out such a balancing exercise.  In the first decision letter there is an acceptance that the length of the appeal process was exceptionally long but that appears to be balanced against the time spent in custody and the fact that there was no complete exoneration.  The conclusion is reached that there are no factors of an exceptional nature.  In the second decision letter, the length of the appeal process is described as “only one factor” and greater significance is given to the time spent in custody which is not regarded as significant.  In the second letter it is not clear what analysis is made in relation to the issue of exoneration.  In summary, counsel submitted the reasoning is inadequate to explain the decision.

 

Analysis
[35]      I have no difficulty in accepting the general submission by counsel for the reclaimers that the policy statement made by the Secretary of State for Scotland in the terms:

“there may be exceptional circumstances that justify compensation in cases outside these categories …”

 

is very wide.  I note that no particular examples are given by the Secretary of State for Scotland.  I accept the submission by counsel for the reclaimers that it is essentially a question for the reclaimers to decide what is regarded as exceptional circumstances in a particular case.  It is also plain from the Ministerial Statement on 23 January 1986 that whatever the words “exceptional circumstances” encompass, it does not encompass a case based simply on the fact that the prosecution was unable to sustain the burden of proof beyond reasonable doubt in relation to the specific charge. 

[36]      In my opinion it is not for the court to come to a conclusion in this case whether the circumstances of the case fall within the policy or not.  The Lord Ordinary recognised that and approached the matter on the correct basis.     In paragraph 30, the Lord Ordinary stated:

“… 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.”

 

I consider that the Lord Ordinary was entitled to examine the rationality of the reasons given in the two decision letters. 

[37]      In the first letter, the reclaimers immediately identify an obvious feature of this case, the length of the appeal process which took over seven years.  That period was longer than the custodial sentence imposed and during that period the respondent was subject to the notification requirements and restrictions applicable to sex offenders with all the consequences that entails.   On one view there is a simple question which the reclaimers required to consider that is whether or not the length of the appeal process fell within the category of exceptional circumstances that justified compensation.  If the answer to that question is in the affirmative, in my opinion the length of the period of imprisonment served before interim liberation was granted cannot logically detract from that conclusion.  If the answer is in the negative, in my opinion, consideration requires to be given as to whether or not the combination of the length of the appeal process coupled with the period of time spent in custody and any other factors which may be relevant, amount to exceptional circumstances in combination.   As part of that assessment it may be relevant to take into account that, if the early release provisions are factored in, the respondent served most of his sentence before he was granted interim liberation. 

[38]      I turn now to consider the reclaimers’ assessment of exoneration.  I accept this may be a relevant consideration.  The first decision letter states that “complete exoneration” is only a significant factor and not the only factor that would point towards exceptional circumstances.  Paragraph 2 of said letter, in my opinion, demonstrates a complete misunderstanding of the role of the appeal court.  It is stated that because the complainer’s description of the attacker and the fact that DNA present on the complainer did not match that of the respondent, the evidence could arguably point to innocence.  There is then reference to five grounds of appeal existing and a comment that these other issues were not established by the court.  There appears to be hopeless confusion which it is impossible to unravel in this part of the letter. 

[39]      It is accepted by both parties that the two decision letters should be read together, and I approach the decision making on that basis.  I have had regard to the submissions of counsel for the reclaimers to the effect that the second letter clarifies the reasoning but I cannot agree with that.  The conclusion in the second letter is that despite the length of the appeal process, more significance is to be attached to the period spent in custody.   The reclaimers conclude that as the conviction was subsequently overturned in the normal course of the appeal process, which exists to identify such miscarriages of justice, compensation is not payable.  I consider that this completely misses the point which is being made on behalf of the respondent.  The respondent contends that the appeal process was not normal because of the time it took.  The decision maker in the first letter appears to accept that.  It is difficult to understand how one could conclude in this case that the length of the appeal process was normal.   The second letter attempts to correct the misconceptions about the function of the appeal court displayed in the first letter.  The bald statement is made “in the present case I am satisfied the effect of the appeal was not complete exoneration”.  There is no attempt made to address the evidence in the particular case.  Even if the finding by the appeal court that there was a miscarriage of justice did not amount to complete exoneration, exoneration is given only as an example of exceptional circumstances and only in the context of the English scheme.   Exoneration is not specified in either scheme as a condition which must be fulfilled before an ex gratia payment is made.  In my opinion it is recognised as one route to bring a claim within the ambit of exceptional circumstances. 

[40]      Despite the valiant efforts of counsel for the reclaimers, I consider that the reasons given in the decision letters do not bear scrutiny and are irrational.

 

Decision
[41]      For these reasons, I conclude that the Lord Ordinary was entitled to pronounce the interlocutor which he did and I consider the reclaiming motion should be refused.