Ipsofactoj.com: International Cases [2005] Part 6 Case 1 [HL]


HOUSE OF LORDS

Coram

Secretary of State for

the Home Department

- vs -

Mullen

LORD BINGHAM OF CORNHILL

LORD STEYN

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

LORD WALKER OF GESTINGTHORPE

29 APRIL 2004


Judgment

Lord Bingham of Cornhill

My Lords,

  1. On 20 December 2002 the Court of Appeal (Schiemann and Rix LJJ and Pumfrey J) held ([2002] EWCA Civ 1882, [2003] QB 993), reversing a decision of the Queen's Bench Divisional Court (Simon Brown LJ and Scott Baker J: [2002] EWHC 230 Admin, [2002] 1 WLR 1857), that the Secretary of State was legally bound to pay compensation to Mr. Mullen. The Secretary of State now challenges the Court of Appeal's ruling and seeks to reinstate the Divisional Court's ruling in his favour.

  2. In agreement with all members of the committee I would allow the Secretary of State's appeal. But I would do so on a narrow ground, less far-reaching than the main submission made on behalf of the Secretary of State. In explaining the reasons for my decision, I will adopt, without repeating, the account of the facts given by my noble and learned friend Lord Steyn.

  3. In paragraphs 7 and 8 of my opinion in R v Secretary of State, ex p McFarland [2004] UKHL 17, I drew attention to the difficulty and sensitivity of questions affecting the payment of compensation to acquitted criminal defendants. I there made reference to the statement by Mr. Roy Jenkins as Secretary of State in July 1976 and quoted in full the statement of Mr. Douglas Hurd as Secretary of State in November 1985. I would refer to those passages and need not repeat them.

  4. It is apparent from their statements that Mr. Jenkins and Mr. Hurd were addressing the subject of wrongful convictions and charges. For present purposes, wrongful charges need not be considered. The expression "wrongful convictions" is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

  5. In the course of his statement Mr. Hurd recited the terms, and undertook to observe, article 14(6) of the International Covenant on Civil and Political Rights 1966, an instrument which the United Kingdom and many other states have signed and ratified. It is common ground that section 133 of the Criminal Justice Act 1988 was enacted to give effect to this obligation in domestic law, so that the right to be compensated should more obviously be "according to law". The only change was to replace the word "conclusively" in article 14(6) by the expression "beyond reasonable doubt", familiar in domestic criminal law, in section 133. The task of the House in this appeal is to interpret section 133. But both parties are rightly agreed that the key to interpretation of section 133 is a correct understanding of article 14(6).

  6. Article 14(6) of the ICCPR is the provision of that instrument which is directed to ensuring that defendants shall be fairly tried. Despite differences of wording and substance, it matches article 6 of the European Convention. It also matches, for example, section 11 of the Canadian Charter of Rights and Freedoms, sections 24 and 25 of the New Zealand Bill of Rights and section 35(3) of the Bill of Rights incorporated in the Constitution of the Republic of South Africa. All of these provisions lay down certain familiar principles (the presumption of innocence, the right to be told of the charge against one, and so on). They address different aspects of the core right, which is to a fair trial. They have no bearing on abuses of executive power which do not result in an unfair trial.

  7. The judgment of the Court of Appeal (Criminal Division) (Rose LJ, Colman and Maurice Kay JJ: [2000] QB 520) makes it clear that Mr. Mullen was the victim of a gross abuse of executive power. The court found that the British authorities had acted in breach of international law and had been guilty of (page 535) "a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts". For this conduct, as it seems to me, Mr. Mullen had strong grounds for a claim in conspiracy or misfeasance in public office. He could have challenged the legality of his detention, perhaps praying in aid the provisions of article 5(5) of the European Convention (reflected in article 9(5) of the ICCPR):

    Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

    But Mr. Mullen claims compensation under, in effect, article 14(6), the fair trial guarantee, and he cannot show any defect in his trial or the investigation leading up to it. After conviction he applied for leave to appeal against sentence only. He may, it seems, have wished to appeal against conviction, but did not do so. On his appeal out of time in January 1999, no challenge was made to the conduct of the trial itself. He had, it is true, a legitimate complaint of non-disclosure, but the material which should have been and was not disclosed related to the circumstances of his apprehension and abduction, not to the facts of his offence.

  8. The jurisdiction exercised by the Court of Appeal (Criminal Division) when quashing the conviction of Mr. Mullen was based on the reasoning of the House in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42. That case concerned a stay of proceedings. There had been no trial. But there had been unlawful conduct by the authorities which resulted in the applicant's return to this country where he was arrested and charged. The ground upon which the House held it right to intervene was explained by Lord Griffiths, who gave the leading opinion (pages 61-62):

    In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

    He concluded (on page 64):

    The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused.

    Lord Hoffmann correctly characterised this salutary jurisdiction, in my respectful opinion, when he said in R v Looseley [2001] UKHL 53, [2001] 1 WLR 2060, paragraph 40:

    The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power.

    In quashing Mr. Mullen's conviction the Court of Appeal (Criminal Division) condemned the abuse of executive power which had led to his apprehension and abduction in the only way it effectively could. But it identified no failure in the trial process. It is for failures of the trial process that the Secretary of State is bound, by section 133 and article 14(6), to pay compensation. On that limited ground I would hold that he is not bound to pay compensation under section 133.

  9. The central submission of the Secretary of State was that section 133, reflecting article 14(6), obliges him to pay compensation only when a defendant, finally acquitted in circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he had been convicted. Having reached the conclusion already expressed, in favour of the Secretary of State, I need form no concluded opinion on this submission, which is strongly challenged by Mr. Mullen. But in deference to the very detailed arguments advanced by Mr. Sales and Mr. Pleming I should very briefly indicate why, on the materials now before the House, I would hesitate to accept it.

    1. The expression "miscarriage of justice" in section 133 is drawn directly from the English-language text of article 14(6). In the article the expression describes a concept which is autonomous, in the sense that its content should be the same in all states party to the ICCPR, irrespective of the language in which the text appears. Nonetheless, "miscarriage of justice" is an expression which, although very familiar, is not a legal term of art and has no settled meaning. Like "wrongful conviction" it can be used to describe the conviction of the demonstrably innocent: see People (DPP) v Pringle (No 2) [1997] 2 IR 225, 230, 236, 246. But, again like "wrongful conviction", it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted: see, for example, People v Wilson 138 P 971, 975 (1913); Robins v National Trust Company Ltd [1927] AC 515, 518; Sir John May, Return to an Address of the Honourable the House of Commons dated 30 June 1994 for a Report of the Inquiry into the Circumstances surrounding the Convictions arising out of the Bomb Attacks in Guildford and Woolwich in 1974 (HC 449, 1994), paras 21.3-21.4. When section 133 (as it was to become) was debated in the House of Lords, the minister was pressed to say whether a miscarriage of justice connoted the innocence of a defendant or the raising of a doubt about his guilt, but the minister said nothing to suggest that compensation would be payable only to the innocent: HL Deb., 22 July 1988, cols 1631-1634.

    2. The House was referred to the travaux préparatoires of the negotiations which culminated in adoption of the ICCPR. It is plain that some delegates contended that compensation should not be paid save to those who were shown to be innocent, and such delegates found no difficulty in expressing this very simple principle. But it is equally plain, as Mr. Pleming submitted, that every proposal to that effect was voted down. The travaux disclose no consensus of opinion on the meaning to be given to this expression. It may be that the expression commended itself because of the latitude in interpretation which it offered.

    3. Little assistance is in my opinion gained from the jurisprudence of the UN Human Rights Committee. In Muhonen v Finland (No 89/1981, 8 April 1985) the Committee found no violation of article 14(6) where an applicant had been pardoned on grounds of equity and not miscarriage of justice. But it did not attempt to define the latter expression. Nor did it in Irving v Australia (No 880/1999, 1 April 2002), where the decision of the majority, rejecting the applicant's claim, turned on the absence of a new or newly discovered fact.

    4. Article 3 of Protocol 7 to the European Convention is in much the same terms as article 14(6) of the ICCPR and was adopted to bring the terms of the Convention into line with those of the ICCPR. As Lord Steyn has explained, a Committee of Experts on Human Rights drafted and issued an Explanatory Report. Paragraph 25 contains a passage on which the Secretary of State understandably placed heavy reliance:

      The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person was clearly innocent.

      This passage plainly assists the Secretary of State. But

      1. the United Kingdom has neither signed nor ratified Protocol 7.

      2. many more states are parties to the ICCPR than to the European Convention or Protocol 7, and they cannot be bound by a later commentary on a different instrument.

      3. the Report is prefaced by a statement that it does not constitute an instrument providing an authoritative interpretation of the text of the Protocol.

      4. paragraph 25 does not appear to be altogether consistent with paragraph 23, which suggests that a miscarriage of justice occurs where there is "some serious failure in the judicial process involving grave prejudice to the convicted person".

      5. the simple and readily intelligible reference to "innocent" in paragraph 25 is to be contrasted with the absence of any such word in Protocol 7, article 3 (or, of course, article 14(6) of the ICCPR).

      This last observation is applicable also to article 626 of the French Code de Procédure Pénale, where there is reference to "un condamné reconnu innocent". The French version of article 14(6) and article 3 of Protocol 7 refers not to innocence but to "une erreur judiciaire" (in Spanish, "un error judicial"). These expressions can be understood as equivalent to "miscarriage of justice" in its broad sense, but are not obviously apt to denote proof of innocence.

    5. The Secretary of State has not, to my mind, demonstrated a consensus of academic opinion in favour of his interpretation. It is true that Stavros (The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights, 1993, p 300) observes that

      It is, therefore, possible for a person whose conviction has been quashed not to receive compensation where, instead of an acknowledgement of his clear innocence, a mere reasonable doubt arises as to his guilt.

      But the only authority quoted for this observation is the Explanatory Report discussed above. A different view is taken by van Dijk & van Hoof (Theory and Practice of the European Convention on Human Rights, 3rd ed, p 689) who write:

      In what follows the Explanatory Report seems to imply that reversal on the ground that new facts have been discovered which introduce a reasonable doubt as to the guilt of the accused is not enough. In our opinion this interpretation would be too strict, especially in view of the right to be presumed innocent, laid down in Article 6(2) of the Convention, which implies that reasonable doubt and clear innocence should lead to the same result.

    6. It is, in my opinion, an objection to the Secretary of State's argument that courts of appeal, although well used to deciding whether convictions are safe, or whether reasonable doubts exist about the safety of a conviction, are not called upon to decide whether a defendant is innocent and in practice very rarely do so.

  10. Although it is, again, unnecessary for me to express a concluded opinion on the point, I am not at present inclined to accept Mr. Pleming's submission that denial of compensation to a defendant acquitted in circumstances meeting the conditions of section 133 necessarily infringes the presumption of innocence protected by article 14(2) of the ICCPR and article 6(2) of the European Convention. In WJH v The Netherlands (No 408/1990, 31 July 1992) the Human Rights Committee said, in paragraph 6.2:

    With respect to the author's allegation of a violation of the principle of presumption of innocence enshrined in article 14, paragraph 2, of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted.

    This was the view taken by the Irish Supreme Court, without reference to either the Convention or the ICCPR, in People (DPP) v Pringle (No 2) [1997] 2 IR 225, 237. But it does not appear to be the approach of the European Court. In Sekanina v Austria (1993) 17 EHRR 221, paragraph 30, the Court, finding a violation of article 6(2) of the European Convention, said:

    The voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.

    Later authorities distinguish between cases in which there has been no acquittal on the merits of the accusation (as in Leutscher v The Netherlands (1996) 24 EHRR 181), when the state is permitted to continue to give effect to its suspicions of the defendant's guilt, and cases (such as Rushiti v Austria (2000) 33 EHRR 1331, Lamanna v Austria (App no 28923/95, 10 July 2001, unreported), Weixelbraun v Austria (2001) 36 EHRR 799, Hammern v Norway (App no 30287/96, 11 February 2003, unreported), and O v Norway (App no 29327/95, 11 February 2003, unreported), where there has been an acquittal on the merits of the accusation and the state is not permitted to give effect to its suspicions of the defendant's guilt. This latter rule applies even though the defendant has been acquitted because of doubt about his guilt (Rushiti, paragraph 31) and article 6(2) is not confined in its application to criminal proceedings (Hammern, paragraph 44). If, as I think, this is the correct analysis of the European jurisprudence, it gives no assistance to Mr. Mullen, since his acquittal was based on matters entirely unrelated to the merits of the accusation against him.

  11. In holding that the Secretary of State's appeal should succeed on the limited ground explained above, I have necessarily rejected Mr. Mullen's main argument, accepted by the Court of Appeal, that any defendant whose conviction is reversed in circumstances meeting the conditions in section 133 is entitled to payment of compensation. But a subsidiary argument was advanced for Mr. Mullen, relying on that part of Mr. Hurd's statement in November 1985 which allowed for payment of compensation to those

    who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.

    The Secretary of State accepted in correspondence that Mr. Mullen's conviction resulted from a trial which, but for the unlawful conduct of the British authorities, might not have taken place, and that the conviction had thus resulted from a serious default on the part of a public authority. But he did not consider that Mr. Mullen had been "completely exonerated", and Mr. Mullen was notified:

    However, given the very unusual circumstances of this case, as noted above, in which the Court of Appeal quashed Mr. Mullen's conviction for a very serious offence, even though he conceded that he had been 'properly convicted', the Home Secretary is minded to conclude that it would be right to depart from his usual policy, and not to pay ex gratia compensation in this case on the ground that it would be an affront to justice if someone who concedes that he was rightly convicted was compensated financially for an abuse of process.

    Mr. Mullen was invited to make representations why the Secretary of State should not depart from his usual policy, and did so, but the provisional decision was affirmed. The Divisional Court rejected Mr. Mullen's challenge to the lawfulness of the Secretary of State's decision. The Court of Appeal did not address this argument.

  12. In my opinion, the Divisional Court was right to reject this argument.

    • First, serious though the default in this case certainly was, and right though the Court of Appeal (Criminal Division) was to quash the conviction, the default did not affect the fairness of the trial or throw doubt on the verdict which the jury, by a majority, returned.

    • Secondly, the Secretary of State was in my view entitled to treat as exceptional a case in which there appeared to him to be no reason to doubt Mr. Mullen's guilt.

    • Thirdly, Mr. Mullen did not lack means of obtaining redress otherwise than through payment of ex gratia compensation.

    • Fourthly, I consider that the Secretary of State must enjoy some latitude in the administration of an ex gratia scheme, so long as he acts fairly, rationally, consistently and in a manner that does not defeat substantive legitimate expectations.

    His decision has not been shown to offend any of these rules.

  13. I would allow this appeal and restore the order of the Divisional Court.

    Lord Styen

    My Lords,

    I. THE SHAPE OF THE CASE

  14. In 1990 a jury convicted Mr. Mullen of conspiracy to cause explosions. The judge sentenced him to thirty years' imprisonment. After he had been in prison for nearly ten years the Court of Appeal quashed his conviction on an appeal out of time on the ground that his deportation from Zimbabwe to the United Kingdom involved an abuse of process rendering the conviction unsafe: Regina v Mullen [2000] QB 520. The Court of Appeal concluded that the British Secret Intelligence Service, assisted by the British police, had initiated and taken part in the deportation of Mr. Mullen from Zimbabwe contrary to the law of that country and international law. It was no part of his case as deployed on appeal that he was innocent of the offence of which he was convicted or that, apart from the abuse of process, his trial was in any way flawed. Subsequently, Mr. Mullen applied to the Secretary of State for compensation under section 133 of the Criminal Justice Act 1988 or, alternatively, under the ex gratia scheme, as set out in ministerial policy statements, on the basis that his conviction had been reversed on the ground that there had been a miscarriage of justice. The Secretary of State refused the application under section 133 and under the ex gratia scheme. The Divisional Court dismissed an application for judicial review under both heads: R (Mullen) v Secretary of State for the Home Department [2002] 1 WLR 1857. The Court of Appeal reversed the decision of the Divisional Court and held that the claimant was entitled to compensation under section 133: R (Mullen) v Secretary of State for the Home Department [2003] QB 993. The Court of Appeal, therefore, did not have to consider the alternative claim under the ex gratia scheme.

  15. In outline the issues before the House are whether, as a matter of law, the claimant is entitled to compensation under section 133 or, alternatively, under the ex gratia scheme. It is, however, necessary to set out the background in detail before it will be possible to consider the questions which arise.

    II. THE DISCOVERY OF A BOMB FACTORY LINKED TO THE CLAIMANT

  16. In the early hours of 21 December 1988 a shooting incident took place in a street in Battersea. The police searched a flat at 8 Staplehurst Court, London. At the flat was found over 100lbs of Semtex, timing and power units for detonating various types of bombs, a number of ready made car bombs, blasting incendiary devises, mortar bomb equipment, firearms and ammunition. A further search in January 1989 revealed guides to the Diplomatic Service, the Civil Service, the Army and the House of Commons, newspaper cuttings, code words, documents and a coded list of items of terrorist equipment. The flat was, in effect, a bomb factory for an IRA active service unit.

  17. On 20 December 1988, shortly before the incident and the discovery of the bomb factory, the claimant (a man then aged 42 years), his girlfriend and his daughter, had flown to Zimbabwe. On 7 February 1989 the claimant was deported from Zimbabwe. He was brought back to the United Kingdom. At Gatwick Airport British police boarded the plane and arrested the claimant. He was charged with a number of offences, the material one being conspiracy to cause explosions likely to endanger life or cause serious damage to property, contrary to section 3(1)(a) of the Explosive Substances Act 1883 and section 7 of the Criminal Jurisdiction Act 1975.

    III. THE TRIAL

  18. In June 1990 the trial against the claimant and a co-accused commenced at the Central Criminal Court before Hidden J and a jury. The co-accused was in due course acquitted and discharged and his position is not material to these proceedings. The prosecution alleged that the claimant was involved in a conspiracy to cause explosions. The prosecution contended that he acted as the quarter master for an active IRA unit. Specifically, the prosecution relied on the fact that he was responsible for renting the flat at 8 Staplehurst Court and other premises, and had assisted the bomb makers by supplying them with false birth certificates and driving licences, cars and banking facilities. The inventory of bomb making equipment was in his handwriting, and traces of Semtex were found in two of the cars which the claimant had bought. The claimant did not dispute the primary facts. The defence case was that the claimant had arranged the premises, banking facilities and false documentation for two men whom he believed to be involved in a credit card fraud. Giving evidence the claimant said that he had never been a member of the IRA or any other terrorist organisation. He said that he did not know that he had become involved with the IRA until 14 December 1988 when the two men told him, whereupon he tried to withdraw from the scheme. He said that they had, however, fired a gun at him and made threats to his wife and child and thereafter he had acted only under duress. He had not, in interview, told the police about the events which he claimed had occurred on 14 December 1988.

  19. After a summing up by Hidden J, the jury retired to consider their verdict. Following their retirement the jury asked whether the claimant had been extradited to the United Kingdom. The intelligence services and police were aware that the claimant had been unlawfully deported. They did not tell prosecuting counsel how the presence of the claimant in the Central Criminal Court was to be explained. The judge's knowledge was restricted to the evidence before him. The judge, quite correctly, on the evidence led could not enlighten the jury. He simply reminded the jury of the evidence. In any event, after two days of deliberations, and by a 10:2 majority the jury convicted the claimant of causing conspiracy to cause explosions as alleged in the main count. The judge sentenced the claimant to thirty years' imprisonment.

    IV. THE APPELLATE PROCEEDINGS

  20. The claimant applied for leave to appeal against sentence but not conviction. On 4 November 1990 a single judge of the Court of Appeal (Criminal Division) refused the application. By letter dated 7 November 1990 the Criminal Appeal Office reminded him that, although out of time, he could still apply for leave to appeal against conviction. He did not do so. On 21 March 1991 the Court of Appeal (Criminal Division) refused a renewed application for leave to appeal against sentence.

  21. Following the decision on 24 June 1993 of the House of Lords in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 the claimants' solicitors wrote on 27 January 1994 to the Crown Prosecution Service asking for disclosure of all material relating to how the claimant came to be brought into the jurisdiction. The CPS refused to consider the request on the ground that no leave had been obtained.

  22. On 21 July 1997 the claimant lodged an application for an extension of time (approximately 7 years) in which to apply for leave to appeal against conviction. Initially he had raised an issue about the correctness of the judge's directions on the issue of duress. He did not pursue this aspect. His case was confined to the argument that he was brought to trial in England as a result of the illegal collusion of the British and Zimbabwean authorities. On 30 September 1997, leave was refused by a single judge of the Court of Appeal (Criminal Division). On 29 January 1998, the full Court granted an extension of time in which to appeal, and leave to appeal against conviction on the grounds relating solely to the circumstances of the claimant's deportation from Zimbabwe. In November 1998, the Crown sought, and was granted, an ex parte hearing before the Court of Appeal in order to seek directions concerning public interest immunity. The Court of Appeal ordered the disclosure of a summary of background information concerning the claimant's removal from Zimbabwe. This material was disclosed to the claimant's solicitors on 3 November 1998 and formed the basis of his subsequent appeal. On 13 and 14 January 1999, the claimant's appeal was heard by Rose LJ, Colman J and Kay J. The claimant pursued one argument only, namely that the events which led to him being brought before the court in 1990 were such as to render his prosecution an abuse of the process of the court, and thus unsafe.

    V. THE JUDGMENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)

  23. Rose LJ gave the judgment of the Court of Appeal: [2000] QB 520. He described in detail the unlawful deportation of the claimant from Zimbabwe as a result of the collusion of British intelligence services and police with the Zimbabwean intelligence services and police. He stated (at 535-536a):

    This court is firmly of the view that it must have been appreciated by the S.I.S., and probably by the police in Britain, that the vital element in the operation, the insulation of the defendant from any legal advice following his detention, was in breach of specific provisions of the law of Zimbabwe, or, at the least, was contrary to the defendant's entitlement as a matter of human rights. In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the defendant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of public international law.

    Finally, the events leading to the deportation as now revealed in the summary for disclosure were concealed from the defendant until last year.

    In all these circumstances, can it now be said that the conduct of the British authorities is causing the defendant to be deported in the manner in which he was, and in prosecuting him to conviction was, to use the words of Lord Steyn in R v Latif [1996] 1 WLR 104, 113, 'so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed?'

    This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates' Court ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached.

    He concluded at (536e-g):

    In these circumstances, the discretion has to be exercised on the basis that, but for the unlawful manner of his deportation, he would not have been in this country to be prosecuted when he was, and there was a real prospect that he would never have been brought to this country at all.

    Additionally, the need to encourage the voluntary disclosure before trial of material and information in the hands of the prosecution relevant to the defence is a further matter of public policy to which it is also necessary to attach great weight. Omission to make such disclosure clearly is a matter to be taken into account, on the exercise of this court's discretion following a conviction.

    In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.

    Inasmuch as that discretionary exercise now falls to be carried out by this court, we conclude that, by reason of this abuse of process, the prosecution and therefore the conviction of the defendant were unlawful.

    It is therefore clear that the Court of Appeal relied on a combination of the abuse of executive power and the flawed trial process involving in the words of Rose LJ the concealment of the events leading to the deportation. The Court of Appeal held that the conviction was unlawful, and unsafe within the meaning of section 2 of the Criminal Appeal Act 1968 (as substituted by section 2 of the Criminal Appeal Act 1995). The claimant was released after almost ten years in custody.

    VI. THE CLAIM FOR COMPENSATION

  24. On 25 February 1999 the solicitors for the claimant applied to the Secretary of State for compensation. On 6 March 2000 the Secretary of State rejected the application.

    VII. COMPENSATION FOR MISCARRIAGES OF JUSTICE

  25. The procedure adopted in respect of ex gratia payments in the case of miscarriages of justice was described by the Home Secretary (Mr. Roy Jenkins) in an written answer on 29 July 1976 (H.C. Deb., cols 328-330.) He stated:

    A decision to make an ex gratia payment from public funds does not imply any admission of legal liability; it is not, indeed, based on considerations of liability for which there are appropriate remedies at civil law. The payment is offered in recognition of the hardship caused by a wrongful conviction or charge and notwithstanding that the circumstances may give no grounds for a claim for civil damages.

    Under this policy the Secretary of State exercised a broad discretionary power.

  26. Gradually a fundamental human right to compensation for miscarriages of justice evolved. The Universal Declaration of Human Rights (1948) made no provision for such a fundamental right. The European Convention on Human Rights and Fundamental Freedoms (1950) in its original form also did not contain such a provision. The American Convention on Human Rights, 1969, contained in article 10 a weak provision which left it to states to make suitable provision for compensation in accordance with law. The breakthrough came with the International Covenant on Civil and Political Rights.

  27. On 19 December 1966 the ICCPR was adopted by the General Assembly of the United Nations and opened for signature at New York. On 20 May 1976 the United Kingdom ratified the ICCPR. On 20 August 1976 — three weeks after Mr. Jenkins' statement — the required number of ratifications was attained and the ICCPR entered into force. Article 14 contained two relevant provisions, namely:

    2.

    Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

    ....

    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.

    From 1976 to 1985 the United Kingdom purported to fulfil its international obligations under article 14(6) under the extant ex gratia scheme.

  28. On 29 November 1985 the Home Secretary (Mr. Douglas Hurd) formalised the position by a policy statement in the House of Commons. He stated (H.C. Deb., cols 691-692):

    There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose convictions are quashed on appeal, or to those granted free pardons by the exercise of the royal prerogative of mercy. Persons who have grounds for an action for unlawful arrest or malicious prosecution have a remedy in the civil courts against the person or authority responsible. For many years, however, it has been the practice for the Home Secretary, in exceptional circumstances to authorise on application ex gratia payments from public funds to persons who have been detained in custody as a result of a wrongful conviction.

    In accordance with past practice, I have normally paid compensation on application to persons who have spent a period in custody and who receive a free pardon, or whose conviction is quashed by the Court of Appeal or the House of Lords following a reference of a case by me under section 17 of the Criminal Appeal Act 1968, or whose conviction is quashed by the Court of Appeal or the House of Lords following an appeal after the time normally allowed for such an appeal has lapsed. In future I shall be prepared to pay compensation to all such persons where this is required by our international obligations. The International Covenant on Civil and Political Rights [article 14.6] provides that:

    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 provided that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

    I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.

    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 exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought ....

    There was international pressure on the United Kingdom to put its obligations under article 14(6) on a statutory footing: see McGoldrick, The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights, 1991, p 412. The result was section 133 of the Criminal Justice Act 1988. It 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.

    (2)

    No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.

    (3)

    The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

    (4)

    If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

    (4A)

    In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—

    (a)

    the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

    (b)

    the conduct of the investigation and prosecution of the offence; and

    (c)

    any other convictions of the person and any punishment resulting from them.

    (5)

    In this section 'reversed' shall be construed as referring to a conviction having been quashed—

    (a)

    on an appeal out of time; or ....

    It will be noted that the language closely follows article 14(6). But for the word "conclusively" in article 14(6) section 133 substituted the words "beyond reasonable doubt". As a matter of law this enactment replaced pro tanto the policy statement of Mr. Hurd, viz to the extent that it set out article 14(6). Section 133 was amended in 1995 and 2000 in respects not material to this appeal.

  29. On 17 June 1997 the Home Secretary (Mr. Jack Straw) made a policy announcement in which he stated that he would continue to be bound by the terms of Mr. Hurd's policy statement of 29 November 1985 (H.C. Deb., cols 691-692). This statement has, however, to be read subject to the qualification already mentioned, viz that section 133 of the 1988 Act has replaced the reference to article 14(6) in the earlier statement.

    VIII. THE REASONS FOR THE DECISION

  30. By a letter dated 6 March 2000 the Home Office responded to the claimant's claim for compensation. The letter stated:

    The Home Secretary has personally considered this case very carefully. In his view, there is no 'miscarriage of justice' for the purpose of section 133(1) where, as here, a defendant has conceded that he was 'properly convicted' of a very serious offence, notwithstanding that, as the Court of Appeal found, the circumstances in which he was brought to the UK were unlawful. Accordingly, the Home Secretary has decided that Mr. Mullen is not eligible for compensation under the statutory scheme.

    The letter added:

    I turn now to the ex gratia arrangements. In accordance with the terms of the 1985 statement, there are, broadly, two categories where the Home Secretary is prepared to pay ex gratia compensation to a person who has spent time in custody following a wrongful conviction or charge. These are

    (1)

    where he is satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority (the first limb of the statement); or

    (2)

    where there are other exceptional circumstances, in particular the emergence, at trial or on appeal within time, of facts which completely exonerate the accused person (the second limb).

    The Home Secretary accepts that Mr. Mullen's conviction resulted from a trial which, but for the involvement of the British authorities in securing his unlawful deportation from Zimbabwe, might not have taken place; and that this, in principle, brings him within the first limb of the 1985 statement. (He does not consider that Mr. Mullen has been 'completely exonerated' or that there are any 'other exceptional circumstances' for the purpose of the second limb.) However, given the very unusual circumstances of this case, as noted above, in which the Court of Appeal quashed Mr. Mullen's conviction for a very serious offence, even though he conceded that he had been 'properly convicted', the Home Secretary is minded to conclude that it would be right to depart from his usual policy, and not to pay ex gratia compensation in this case on the ground that it would be an affront to justice if someone who concedes that he was rightly convicted was compensated financially for an abuse of process.

    Before making a final decision on Mr. Mullen's eligibility for compensation under the ex gratia scheme, however, the Home Secretary is prepared to consider any representations you may wish to make as to why there should be no departure from his stated policy in this case. I would be grateful if any such representations could be sent to this office by 6 April.

  31. On 4 May 2000 the claimant's solicitors disputed the correctness of the Home Secretary's position. On 15 March 2001 the Home Office stated in the decision letter that the Home Secretary took the view that the claimant was not the victim of a miscarriage of justice within the meaning of section 133. The letter added that, having taken into account the letter of 4 May 2000, the Home Secretary remains of the view "that he should depart from his usual policy in this case and should not make an ex gratia payment of compensation to Mr. Mullen.

    IX. THE DECISION OF THE DIVISIONAL COURT

  32. The claimants' application for judicial review came before the Divisional Court (Simon Brown LJ and Scott Baker J): [2002] 1WLR 1857. The court held that under section 133 of the 1988 Act a miscarriage of justice was the wrongful conviction of an innocent defendant. The claimant did not come within this category. The court further held that the Secretary of State was entitled to depart from his stated policy with regard to the payment of ex gratia compensation. His decision was neither unfair nor irrational. The application for judicial review was dismissed.

    X. THE DECISION OF THE COURT OF APPEAL

  33. The claimant appealed to the Court of Appeal: [2003] 2 WLR 835. Schiemann LJ (with whom Rix LJ and Pumfrey J agreed) gave the only reasoned judgment. He helpfully summarised his conclusions as follows (847B-E):

    42.

    In summary therefore I consider that:

    (a)

    the International Covenant on Civil and Political Rights provides for compensation in a case like the present as the travaux préparatories indicate;

    (b)

    even if that is wrong, the ordinary use of English indicates that the phrase 'miscarriage of justice' is wide enough to embrace circumstances such as the present;

    (c)

    there is nothing to prevent Parliament when giving effect to the United Kingdom's international obligations from giving the citizen more rights than those obligations require that he be given;

    (d)

    in a case where this court has quashed a conviction the presumption of innocence requires that Acts of Parliament are to be interpreted on the basis that it is not intended that the state should proceed on the basis that a wrongly convicted man is guilty. Had Parliament intended that compensation should only be available to those who could prove themselves innocent it would have said so clearly. In the present case there is not even such an implication.

    43.

    I therefore respectfully differ from the Divisional Court. Our criminal law system, like that of most other states, does not provide for proof of innocence. I do not consider that Parliament intended proof of innocence to be a prerequisite of entitlement to compensation.

    44.

    I would therefore allow the appeal on the basis that Mr. Mullen is entitled to compensation under section 133. In those circumstances it is unnecessary to consider his arguments on discretionary compensation.

    XI. THE ISSUES

  34. The Agreed Statement of Facts and Issues defines the issues as follows:

    1. the true meaning of the phrase "miscarriage of justice" in section 133(1) of the 1988 Act;

    2. whether an unsafe conviction resulting from an abuse of process preceding an otherwise fair and properly conducted trial amounts to a "miscarriage of justice" within the meaning of section 133(1) of the 1988 Act;

    3. whether it was irrational, or otherwise unlawful, of the Secretary of State to depart from his own ex gratia policy in this case.

    XII. THE CLAIM UNDER SECTION 133

    The principal contentions

  35. The contentions of the parties can be stated shortly. For the Home Secretary Mr. Sales submitted that the concept of "a miscarriage of justice" in section 133 extends only to cases where a person who was convicted of an offence is later shown beyond reasonable doubt, by virtue of some new or newly discovered fact, to have been innocent of the offence of which he was convicted. For Mr. Mullen Mr. Pleming submitted that in all cases where a conviction has been quashed as unsafe, the presumption of innocence requires the defendant to be treated as innocent and therefore it follows that for the purposes of section 133 he was the victim of a miscarriage of justice.

    Two preliminary points.

  36. It is now necessary to examine the central issue in some detail. Two preliminary points must be explained. Firstly, it is clear that in enacting section 133 Parliament intended to give effect to the international obligations of the United Kingdom under the ICCPR in domestic law. International pressure prompted the legislation. The language of section 133 closely tracks the provisions of article 14(6). The observation of Schiemann LJ in the Court of Appeal that there is nothing to prevent Parliament when giving effect to the United Kingdom's international obligations from giving the citizen more rights than those obligations require that he be given is, of course, correct. But it is not in point in the present case. There is no foundation whatever in the language of article 14(6) and section 133, or by reference to any relevant external aids to construction, for the suggestion that Parliament intended to use the words "miscarriage of justice" in a wider sense than it bears in article 14(6). Parliament intended to give effect, by using the words "miscarriage of justice" in section 133, to the international obligations under article 14(6) and no more. That is hardly surprising: there was in the United Kingdom in place an ex gratia scheme, duly announced in Parliament, which was apt to cover cases outside the scope of section 133.

  37. The second preliminary point is common ground. The concept "miscarriage of justice" in article 14(6) is an autonomous Convention concept. It must be construed "unconstrained by technical principles of English law, or by English legal precedent, but on broad principles of general acceptation": James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Limited [1978] AC 141, 152, per Lord Wilberforce. The court "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning": R v Home Secretary ex p Adan [2001] 2 AC 477, at 517B. In my view Schiemann LJ erred in relying on what he described as "the ordinary use of English" and in saying that the "phrase "miscarriage of justice" is wide enough to embrace circumstances such as the present," i.e. where the guilt of the claimant is not in doubt but he should not have been unlawfully deported to stand trial in England. The Court of Appeal ought to have concentrated on the autonomous meaning of the concept in article 14(6). For the same reason the observations of Sir John May in his Report on the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich (H.C. 449, 1994) paras 21.3-21.4 are concerned with the use of the concept in a different domestic context and certainly do not merit the weight counsel for Mr. Mullen put on them in the relevant international context. On a broader basis I would add that generally in law the enquiry into what words mean is of no interest. The response of a court to such a generalised and unhelpful question must always be: "In what particular context?" And here the only relevant context is the international meaning of the words in article 14(6) upon which section 133 is based.

    The impact of article 14(2) on article 14(6)

  38. The Court of Appeal found support for its conclusion in the presumption of innocence provided for in article 14(2). It led the Court of Appeal to conclude in effect that a consideration of article 14(2) by itself rules out an interpretation of section 14(6) giving a right to compensation to only those who are innocent of the offence. Counsel for Mr. Mullen made this a main plank of his argument before the House. He argued in effect that article 14(2) necessarily impresses a meaning on article 14(6) which recognises that anybody whose conviction was quashed as being "unsafe" (a technical concept under section 2(1)(a) of the Criminal Appeal Act 1968) was a victim of a miscarriage of justice under article 14(6) and therefore under section 133. Before I consider the arguments on article 14(6) and section 133 it will be convenient to examine this point.

  39. It is, of course, right that provisions of the ICCPR, in this case articles 14(2) and 14(6), must be read together as part and parcel of the scheme of the covenant: Maaoia v France (2002) 33 EHRR 42. The primary role of article 14(2) is to protect the defendant in the trial process. It has, however, also a role in protecting a defendant from assertions of guilt by the state or its agencies after his acquittal. All this is the obvious field of application of the presumption of innocence. It does not follow that it can influence the scope of the specific duty of the state to compensate victims of miscarriages of justice. On the contrary, the obvious and sensible construction is that article 14(6) is a lex specialis and that the general wording of article 14(2) does not warrant either an expansive or a restrictive reading of article 14(6). The latter provision creates an independent fundamental right governed by its own express limits. This is the view upheld by the international tribunal charged with the implementation of the ICCPR. In WJH v The Netherlands (No. 408/1990, 31 July 1992) the Human Rights Committee said in paragraph 6.2:

    With respect to the author's allegation of a violation of the principle of presumption of innocence enshrined in article 14, paragraph 2, of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted.

  40. Counsel for Mr. Mullen relied, however, on decisions of the ECtHR in support of his submission to the contrary. The ECHR contains in article 6(2) a presumption of innocence provision in the same terms as article 14(2) of the ICCPR. By article 3 of Protocol No. 7 dated 22 November 1984 a fundamental right in respect of compensation for wrongful conviction was introduced. Article 3 reads as follows:

    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 the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

    Subject to the addition of the underlined words to the text of article 14(6) of the ICCPR the wording of article 3 follows verbatim the language of article 14(6).

  41. The United Kingdom has not so far signed or ratified Protocol 7. It is, however, relevant to an understanding of the European jurisprudence.

  42. Sekanina v Austria (1993) 17 EHRR 221 is the first in a line of Austrian cases concerning the same compensation scheme. The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the relevant Austrian legislation. Section 2(1)(b) of the Compensation in Criminal Cases Act 1969 provides for a right to compensation—

    where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in Austria .... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds, insofar as these grounds existed when he was arrested; ....

    On the ground that suspicion remained concerning the applicant's involvement in his wife's death the Austrian authorities rejected the claim. The ECtHR found this to be a breach of article 6(2) on the basis that "the voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to reply on such suspicions once an acquittal has become final." The applicant's case did not involve a claim arising from article 3 of Protocol No. 7. Indeed the ECtHR was careful to emphasis that:

    in addition, despite certain similarities, the situation in the present case is not comparable to that governed by Article 3 of Protocol No. 7, which applies solely to a person who has suffered punishment as a result of a conviction stemming from a miscarriage of justice.

    Rushiti v Austria (2001) 33 EHRR 56 concerns the same Austrian provisions. The ECtHR noted at paragraph 27 that "Austrian legislation and practice link the two questions — the criminal responsibility of the accused and the right to compensation — to such a degree that the decisions on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former." Again the case concerned compensation for time spent on remand, prior to an acquittal by a jury. Article 3 of Protocol No. 7 was not relied upon. A violation of article 6(2) was found on the basis that "the general aim of the presumption of innocence .... is to protect the accused against any judicial decision or other statements by State officials amounting to an assessment of the applicant's guilt without him having previously been proved guilty according to law." It was held that once an acquittal has become final, albeit an acquittal giving the accused the benefit of the doubt in accordance with article 6(2), the voicing of any suspicions of guilt, including those expressed in the reason for the acquittal, is incompatible with article 6(2). Lamanna v Austria, ECtHR judgment of 10 July 2001 and Weixelbraun v Austria (2003) 36 EHRR 45 both concern similar Austrian legislation and similar factual circumstances as Sekanina and Rushiti. On the basis of the latter decisions a breach of article 6(2) was found in both cases. The decisions are not relevant to the issue presently under consideration. The interaction between article 6(2) and article 3 of Protocol No. 7 was not under consideration. The reason was that in Austrian legislation there was a wider right to compensation than provided by article 3 of Protocol No. 7.

  43. The applicant in Hammern v Norway, ECtHR judgment of 11 February 2003, was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether "it is shown to be probable that he did not perform the act that formed the basis for the charge" (Article 444 of the Code of Criminal Procedure, Norway). The application was refused. The applicant appealed to the ECtHR alleging that Norway was in breach of article 6(2) of the ECHR. The ECtHR held that there were no grounds for distinguishing Mr. Hammern's case from those of Sekanina and Rushiti. Accordingly article 6(2) was applicable and there was a violation of it. Again, the court was not called on to consider the interaction between article 6(2) and article 3 of Protocol No. 7.

  44. Much was made by Mr. Sales of Leutscher v Netherlands (1996) 24 EHRR 181. In that case the ECtHR rejected an application under article 6(2) of the Convention and Dutch law on the ground that a suspicion still attached to the applicant despite his acquittal on appeal. Again, however, the link between article 6(2) and article 3 of Protocol No. 7 was not considered.

  45. In my view the European jurisprudence cited throws no light on the question whether article 6(2) of the convention justifies an expansive interpretation of article 3 of Protocol No. 7, or the corresponding question in respect of article 14(2) and 14(6) of the ICCPR. In my view the principled analysis already set out must prevail. Article 14(6) of the ICCPR (and therefore section 133 of the 1988 Act), are in the category of lex specialis and the general provision for a presumption of innocence does not have any impact on it.

    Textual analysis

  46. It is now possible to examine the interpretation of article 14(6) on its own terms. The starting point must, of course, be the language and structure of article 14(6) as enacted in United Kingdom law by section 133. It is to be noted that a case where a defendant was wrongly convicted (e.g. on the ground that the circumstantial evidence did not exclude the reasonable possibility of innocence) and then had his conviction quashed on an appeal lodged within ordinary time limits does not qualify for compensation. There was no intention to create a right to compensation in favour of victims in this category. All cases in this category are excluded whatever the grounds on which the appeal is allowed and whatever the cause of the wrongful conviction. It follows that there was no overarching purpose of compensating all who are wrongly convicted. In cases of a wrongful conviction quashed on an appeal out of time an indispensable pre-condition is that "(1) a new or newly discovered fact (2) shows conclusively that there has been a miscarriage of justice" (numbering added). If there is no new or newly discovered fact, but simply, for example, a recognition that an earlier dismissal of an appeal was wrong, the case falls outside article 14(6). That is so, however palpable the error in the first appellate decision may have been, and however severe the punishment that the victim suffered unjustly. These considerations demonstrate that the fundamental right under article 14(6) was unquestionably narrowly circumscribed.

  47. The requirement that the new or newly discovered fact must show conclusively (or beyond reasonable doubt in the language of section 133) "that there has been a miscarriage of justice" is important. It filters out cases where it is only established that there may have been a wrongful conviction. Similarly excluded are cases where it is only probable that there has been a wrongful conviction. These two categories would include the vast majority of cases where an appeal is allowed out of time. In agreement with Simon Brown LJ in the Divisional Court (at 1864C-D) I regard these considerations as militating against the expansive interpretation of "miscarriage of justice" put forward on behalf of Mr. Mullen. They also demonstrate the implausibility of the extensive interpretation of Schiemann LJ: it entirely erodes the effect of evidence showing "conclusively that there has been a miscarriage of justice". While accepting that in other contexts "a miscarriage of justice" is capable of bearing a narrower or wider meanings, the only relevant context points to a narrow interpretation, viz the case where innocence is demonstrated.

  48. The French text of the ICCPR is also relevant. It reads as follows:

    Lorsqu'une condamnation pénale définitive est ultérieurement annulée ou lorsque la grâce est accordée parce qu'un fait nouveau ou nouvellement révélé prouve qu'il s'est produit une erreur judiciaire, la personne qui a subi une peine en raison de cette condamnation sera indemnisée, conformément à la loi, à moins qu'il ne soit prouvé que la non-révélation en temps utile du fait inconnu lui est imputable en tout ou partie.

    For "shows conclusively" the French text uses the word "prouve". For "a miscarriage of justice" the French text uses the word "une erreur judiciare". The latter is a technical expression indicating a miscarriage of justice in the sense of the conviction of the innocent. France acceded to the ICCPR in 1981. France has given effect to its international obligations under article 14(6) by article 626 of the Code de Procédure Pénale which provides as follows:

    Sans préjudice des dispositions des deuxième et troisième alinéas de l'article L. 781-1 du code de l'organisation judiciaire, un condamné reconnu innocent en application du présent titre a droit à réparation intégrale du préjudice matériel et moral que lui a causé la condamnation. Toutefois, aucune réparation n'est due lorsque la personne a été condamnée pour des faits dont elle s'est librement et volontairement accusée ou laissé accuser à tort en vue de faire échapper l'auteur des faits aux poursuites.

    From the words "reconnu innocent" in article 626, it is clear that in France the obligation in article 14(6) was narrowly construed by the legislature, viz as extending only to a miscarriage of justice in the sense of the conviction of an innocent person. If Schiemann LJ's extensive interpretation of "miscarriage of justice" is right, article 626 is too narrow to fulfil the international obligations of France under article 14(6). That I regard as quite implausible. This factor tends to reinforce the view at which I have arrived. In any event, the French dimension establishes state practice, which is relevant to treaty construction: article 31(3)(b) of the Vienna Convention on the Law of Treaties.

  49. This is the view which I would expect to prevail if the ECtHR is called upon to interpret article 3 of Protocol No. 7. When that happens the ECtHR will have before it the Explanatory Report prepared by the 21 member Steering Committee for Human Rights appointed by the Council of Europe. It accompanied Protocol No 7 when it was published. The Committee of Ministers emphasised in September 1984 "the importance of the explanatory report for the purpose of interpreting the protocol". In paragraph 25 the Steering Committee observed about article 3:

    The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.

    It is true that the Introduction to the Explanatory Report (para 4) states:

    It was understood that participation of member states in this Protocol would in no way affect the interpretation or application of provisions containing obligations, among themselves, or between them and other States, under any other international instrument.

    Such cautionary language is understandable. But the Explanatory Report has great persuasive value in the process of interpretation. For example, it is a basis on which states sign and ratify the Protocol. Inevitably, state practice will be based on the Explanatory Report, and in this way it becomes directly relevant to the interpretation of article 14(6): article 31(3)(b) of the Vienna Convention on the Law of Treaties. Bearing in mind that one is considering an autonomous concept, which must apply in the legal systems of many states, this interpretation is in no way surprising. It is likely to prevail in European jurisprudence. If this is right I regard it as implausible that one can assign to the much earlier 1966 text of the ICCPR a more expansive meaning.

  50. I would add one further perspective. The Explanatory Report was available from 1984. It was available to the British authorities, draftsmen and Parliament before section 133 was enacted. It was relevant to the treaty background of section 133. The relevant comment in paragraph 25 would, however, have come as no surprise.

    Travaux Préparatoires

  51. That brings me to the reliance of the Court of Appeal on the travaux préparatoires of the ICCPR in respect of article 14(6). The principle that a court may in appropriate cases have regard to travaux préparatoires in construing a treaty is clear. But it is also settled that such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention: Fothergill v Monarch Airlines [1981] AC 251, at 278A-B, per Lord Wilberforce. In Effort Shipping Co Ltd v Linden Management SA [1998] AC 605, at 623E, I cited the judgment of Lord Wilberforce and added: "Only a bull's eye counts. Nothing less will do".

  52. In the present case Schiemann LJ made the following observations about the travaux préparatoires (at 1002):

    14.

    The Covenant was many years in preparation, drafting having started in 1947. For present purposes it suffices to pick the trail up at the 14th session of the Third Committee in 1959. Then, the words which now appear in article 14(6) were attacked by the United Kingdom as being objectionable on the ground that they allowed compensation to persons who were 'clearly guilty but whose conviction had been annulled for reasons of form of procedure': p 313.

    15.

    Other representatives accepted that this was implicit in the words but felt that this was not objectionable. An Argentinian amendment to suggest that 'the judicial recognition of the innocence of a convicted person shall confer on him the right to request an award of compensation' was rejected and the present wording was adopted: p 314.

    16.

    All that seems to indicate that all were agreed that the concept of miscarriage of justice was used in its wider rather than in its narrower sense. There is absolutely no suggestion that the parties understood that there was a requirement that innocence be proved.

    17.

    I would thus reject the conclusion of the Divisional Court that article 14(6) of the International Covenant on Civil and Political Rights uses the words 'miscarriage of justice' in such a narrow sense.

    It is necessary to examine these conclusions with the aid of Bossuyt's "Guide to the 'travaux préparatoires' of the International Covenant on Civil and Political Rights," 1987, published by Martinus Nijhoff, as well as the materials produced by counsel. I start with general matters. What became article 14(6) was discussed at four sessions of the Human Rights Committee, viz in 1949 (the 5th session), 1950 (the 6th session), 1952 (the 8th session) and 1959 (the 14th session). At such an international conference it is common experience that many contradictory views are expressed. The positions of representatives on issues of substance and drafting changes are initially often widely divergent. And views change in the course of discussions and then eventually converge in the adoption of a final text. This is, however, rarely an orderly and harmonious process. Back stage deals are of the order of the day. In any event rejection of a proposal may be accounted for by a number of different reasons, e.g. disagreement on the substance of it, disagreement with the drafting technique, the view that the matter is already satisfactorily dealt with in the existing text, and so forth. Similarly, approval of a proposal may be inspired by different views as to what it means, or even the belief that pragmatically it should be adopted in order to move on, leaving arguments about its meaning to be settled later. An insight into the flavour of proceedings at an international conference is given in Fothergill, supra, by Lord Diplock (at 283F-G) as follows:

    With some personal experience of international conferences of this kind, I should not attach any great significance to the fact that two delegates in withdrawing an amendment to article 26 which would have included in the article an express reference to partial loss as well as to damage said, without contradiction by any other delegates who happened to be present at that time, that they did so on the understanding that partial loss was included in the expression damage. Machiavellism is not extinct at international conferences.

    It is, therefore, often extraordinarily difficult to infer the will of a composite body, such as an international conference, except from the language actually adopted. That is certainly the case here.

  53. What I have described as a typical process of the evolution of a provision at an international conference neatly fits the present case. The discussions were often unstructured. Much of the discussions centred not on the issue of the desirability of a fundamental right to compensation but on the technical problems associated with finding a solution which could be accommodated across the spectrum of national systems. Divergent views were certainly expressed in favour of a wider and narrow right to compensation. The views were, however, not as polarised as at first appears. That is demonstrated by the fact that some countries supported views in both categories. A realistic reading of the discussions does not warrant a conclusion that there was a consensus, or even a majority view, in favour of any view other than the eventual view that article 14(6) should be adopted. Schiemann LJ relied in para. 15 of his judgment on what he described as an Argentinian amendment (it was in fact an Israeli/Afghan amendment), which was rejected. It is impossible to infer why the amendment was rejected. It may have been because some thought that article 14(6) already made clear that compensation would only be payable where innocence was established or because the wording of the amendment was regarded as unsatisfactory. Schiemann LJ's observed that "all were agreed that the concept of miscarriage of justice was used in its wider than in its narrower sense." He does not explain what the wider sense is: he appears to conclude that "miscarriage of justice" covers every case where wrongful conviction is quashed, e.g. even a case where a conviction is quashed on purely technical grounds, subject to retrial. In my view this interpretation of the travaux is certainly not borne out by a careful study of the discussions. If Schiemann LJ thought that there was a via media to be found in the travaux he does not identify and explain it. And counsel did not suggest it.

  54. Schiemann LJ may have been led astray by the importance he attached to an observation by the U.K. delegate in the 1959 session which he mentioned. The views of the delegate as to the meaning of what became article 14(6) are irrelevant. And there is nothing to warrant the conclusion that there was a consensus, or a majority view, along the lines of the statement of the U.K. delegate. Mr. Pleming made a similar point. He cited in full the statement of Mr. Hoare, representing the United Kingdom, who during the earlier 1952 session said:

    Under the existing paragraph persons would be entitled to compensation not only if it was found that they had been unjustly convicted, but even if the conviction was discovered to be invalid because of a technicality; and it was surely going too far to compensate a man, who might have been guilty in the first place, simply because the proceedings against him had not been properly conducted. It was because paragraph 3 [later article 14(6)] was a wholly inadequate statement of the circumstances in which compensation should be granted that he wished to see it deleted.

    Mr. Hoare's individual views are irrelevant. In any event, Mr. Hoare's concerns were not directly addressed by delegates. Only very much later was the UK proposal to delete what became article 14(6) defeated in a vote. What the reasons of those who voted for the rejection of the proposal were we do not know. It is probable that there were different reasons but we shall never know for certain. It is impossible to infer any consensus or majority view for the rejection of Mr. Hoare's statement.

  55. I agree with Lord Bingham of Cornhill (paragraph 9(2)) that the travaux disclose no consensus of opinion on the meaning of the expression "a miscarriage of justice". The travaux are neutral and do not assist in any way on the proper construction of article 14(6).

    A workable interpretation

  56. Schiemann LJ observed that our criminal law system "does not provide for proof of innocence". Sometimes compelling new evidence, e.g. a DNA sample, a forensic test result, fingerprints, a subsequent confession by a third party who was found in possession of the murder weapon, and so forth, may lead to the quashing of a conviction. The circumstances may justify the conclusion beyond reasonable doubt that the defendant had been innocent. Sometimes the Court of Appeal makes it clear (see Fergus (1994) 98 Cr App R 313, at 325) and sometimes it can be inferred from the circumstances. The interpretation which I have adopted is therefore perfectly workable. That is why France adopted it and why the Committee of Experts felt able to put it forward as the correct interpretation of article 3 of Protocol 7.

    Conclusion on article 14(6)

  57. I conclude that the autonomous meaning of the words "a miscarriage of justice" extends only to "clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent" as it is put in the Explanatory Report. This is the international meaning which Parliament adopted when it enacted section 133 of the 1988 Act.

  58. Mr Mullen can certainly say that he was a victim of a failure of the trial process inasmuch as the circumstances in which he was deported from Zimbabwe were deliberately concealed from him before and at his trial. If it had been disclosed the trial would have been stopped. But Mr. Mullen was not innocent of the charge. On the contrary, the conclusion is inescapable that he knowingly lent assistance to an active IRA unit. He is therefore not entitled to compensation under section 133.

    XIII. THE CLAIM UNDER THE EX GRATIA SCHEME

  59. In the alternative counsel for Mr. Mullen submitted that the Home Secretary erred in his understanding and application of the ex gratia scheme, and that his decision not to award compensation was irrational.

  60. The Home Secretary acknowledged in his decision letter that the case falls within the first limb of the 1985 statement. No question of a misconstruction of the policy arises.

  61. The Home Secretary decided to depart from the policy. He did so in the light of the circumstances set out in the judgment of the Court of Appeal (Criminal Division). Was he entitled to depart from the policy? In the Divisional Court Simon Brown LJ observed (para 32):

    There are, of course, cases in which substantive legitimate expectations have been built up where nowadays public authorities will be required to honour their statements of policy or intention. All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North & East Devon Heath Authority, ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive. As, however, is there made plain, the question for the court is ultimately one of reasonableness and fairness. Would a departure from policy represent an abuse of power? That is a question to be asked in the circumstances of the particular case. It cannot in my judgment be suggested that the Secretary of State can never in any circumstances depart from his stated policy with regard to the payment of ex gratia compensation. He should, of course, give the person concerned an opportunity to say why in his particular case the policy should be applied rather than disapplied. But no problem of that sort arises here. The opportunity was given and taken. The Secretary of State was simply not persuaded.

    I am in respectful agreement with these observations.

  62. On behalf of the Home Secretary counsel pointed out that the ECtHR has relied upon the fact of the involvement of individuals in a terrorist bombing conspiracy as a good reason for not awarding compensation for established breaches of article 2 of the ECHR (right to life), even though its usual practice would be to award monetary compensation in such case: McCann v UK (1996) 21 EHRR 97 para 219 (the "Death on the Rock" case); see also McKerr v UK (2002) 34 EHRR 20, paras. 180-181. By analogy the Home Secretary cannot be said to have been irrational in deciding to exercise his discretion as he did. I would accept that it was open to the Home Secretary to conclude, in his discretion, that he should not pay public monies in respect of the quashing of the conviction, where the appeal proceeded on the basis that if it had been fair to try Mr. Mullen, he had been properly convicted. This further reinforces the view that the argument that the Home Secretary acted irrationally must be rejected.

  63. The alternative argument under the ex gratia scheme must be rejected.

    XIV. DISPOSAL

  64. I would allow the appeal of the Home Secretary.

    Lord Scott of Foscote

    My Lords,

  65. I have had the advantage of reading in advance the opinions of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn. Both have concluded that the appeal of the Home Secretary should be allowed but, in coming to that conclusion, have expressed different views as to the correct scope to be given to the words ".... a miscarriage of justice ...." in section 133(1) of the Criminal Justice Act, 1988. Lord Steyn would allow the words to extend only to "clear cases of miscarriage, in the sense that there would be acknowledgment that the person concerned was clearly innocent" (see para 56 of his opinion). Lord Bingham, on the other hand, would give a wider scope to the words and allow them to cover "failures of the trial process" (see para 8 of his opinion).

  66. My Lords I, too, would allow this appeal for the reasons given by my noble and learned friends. Even if the wider scope which Lord Bingham would allow to section 133(1) is correct, nonetheless the respondent is unable to bring his claim for compensation within the section. The reason his conviction was reversed by the Court of Appeal was not because there had been any failure in the trial process. It was because, prior to the commencement of the trial process, there had been a serious abuse of executive power which had led to the removal of the respondent from Zimbabwe to this country and had thus enabled his trial to take place. I agree with my noble and learned friends that the respondent's conviction was not reversed on the ground that there had been a "miscarriage of justice" within the meaning of those words in section 133(1) of the 1988 Act.

  67. It is strictly unnecessary for the disposal of this appeal for your Lordships to express a concluded view as to whether section 133(1) does have the wider scope suggested by Lord Bingham and I shall not do so. It should be borne in mind, however, that the failure of a claimant for compensation to bring his claim within section 133(1), and thereby to establish his entitlement to compensation, will not necessarily lead to the failure of the claim. The claimant may, as a second string to his bow, seek to persuade the Home Secretary to make a discretionary payment of compensation pursuant to the ex gratia scheme. In most, if not all, of the miscarriage of justice cases in which Lord Steyn would refuse but Lord Bingham would allow a section 133 claim, the facts would be likely to be such as to attract a discretionary payment of compensation by the Home Secretary. So I doubt whether there would be much practical difference in result between the two rival views.

  68. As Lord Bingham has noted in paragraph 11 of his opinion, the Home Secretary accepted in correspondence that the respondent's conviction resulted from serious improprieties on the part of British Secret Intelligence agents and police officers and that the case would, under the terms of the ex gratia scheme as expressed on 29 November 1985 in the House of Commons by the then Home Secretary, have been one in which ex gratia compensation would have been payable. But the Home Secretary took the view that the facts of the present case were exceptional and that it would be "an affront to justice" (his letter of 6 March 2000) if the respondent were to be the recipient of ex gratia compensation. In my opinion, the Home Secretary was fully entitled in the exercise of his discretion to decline for the reasons he gave to make an ex gratia payment of compensation to the respondent. But it would be a very unusual case in which the "serious default" on the part of the British authorities that had led to the compensation claim had been part of the trial process and had fallen within the terms of the ex gratia scheme but had nonetheless been such as to lead the Home Secretary to conclude that he ought not to make an ex gratia payment.

  69. So far as the present appeal is concerned, however, I would allow the appeal for the reasons given by Lord Bingham and Lord Steyn.

    Lord Rodger of Earlsferry

    My Lords,

  70. I have had the privilege of reading the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn, in draft. I agree that the appeal can be decided on the basis put forward by Lord Bingham, with which I agree. While it is not, therefore, necessary to go further for the decision of the appeal, for my part, I would also accept the arguments advanced by Lord Steyn. I would accordingly allow the appeal.

    Lord Walker of Gestingthorpe

    My Lords,

  71. I have had the great advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. Lord Steyn has set out powerful reasons for his conclusion as to the autonomous meaning of the expression "miscarriage of justice" in article 14(6). But for my part I would go no further than the limited ground for allowing the appeal identified by Lord Bingham. On that limited ground I too would allow this appeal.


Cases

R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42; R v Looseley [2001] UKHL 53, [2001] 1 WLR 2060; People (DPP) v Pringle (No 2) [1997] 2 IR 225; People v Wilson 138 P 971 (1913); Robins v National Trust Co Ltd [1927] AC 515; Muhonen v Finland, No 89/1981, 8 April 1985; Irving v Australia, No 880/1999, 1 April 2002; WJH v The Netherlands, No 408/1990, 31 July 1992; People (DPP) v Pringle (No 2) [1997] 2 IR 225; Sekanina v Austria (1993) 17 EHRR 221; Leutscher v The Netherlands, (1996) 24 EHRR 181; Rushiti v Austria (2000) 33 EHRR 1331; Rushiti v Austria (2001) 33 EHRR 56; Lamanna v Austria, App no 28923/95, 10 July 2001, unreported; Weixelbraun v Austria (2001) 36 EHRR 799; Hammern v Norway, App no 30287/96, 11 February 2003, unreported; O v Norway, App no 29327/95, 11 February 2003, unreported; Regina v Mullen [2000] QB 520; R (Mullen) v Secretary of State for the Home Department [2002] 1 WLR 1857; R (Mullen) v Secretary of State for the Home Department [2003] QB 993; James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141; R v Home Secretary ex p Adan [2001] 2 AC 477; Maaoia v France (2002) 33 EHRR 42; Lamanna v Austria, ECtHR, 10 July 2001; Weixelbraun v Austria (2003) 36 EHRR 45; Fothergill v Monarch Airlines [1981] AC 251; Effort Shipping Co Ltd v Linden Management SA [1998] AC 605; McCann v UK (1996) 21 EHRR 97; McKerr v UK (2002) 34 EHRR 20

Legislations

International Covenant on Civil and Political Rights 1966: Art.9(5), Art.14(6)

Criminal Justice Act 1988: s.133

European Convention: Art.3 (Protocol 7), Art.5(5), Art.6

Canadian Charter of Rights and Freedoms: s.11

New Zealand Bill of Rights: s.24, s.25

Constitution of the Republic of South Africa (Bill of Rights): s.35(3)

French Code de Procédure Pénale: Art.626

Authors and other references

John May, Report of the Inquiry into the Circumstances surrounding the Convictions arising out of the Bomb Attacks in Guildford and Woolwich in 1974 (HC 449, 30 June 1994)

House of Lords Debate, 22 July 1988.

Steering Committee of Experts on Human Rights, Explanatory Report.

Stavros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights, 1993.

Dijk & van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed.

Roy Jenkins (Home Secretary) House of Commons Debate, 29 July 1976.

Douglas Hurd (Home Secretary) House of Commons Debate, 29 Nov 1985.

Bossuyt, "Guide to the 'travaux préparatoires' of the International Covenant on Civil and Political Rights," 1987, published by Martinus Nijhoff.


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