Ipsofactoj.com: International Cases [2005] Part 7 Case 1 [HL]


HOUSE OF LORDS

Coram

McFarland

- vs -

Secretary of State

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. The issue in this appeal is whether the respondent Secretary of State acted unlawfully in declining to pay compensation to the appellant, Mr. McFarland, who was imprisoned following a conviction which was later quashed. In these proceedings, brought to challenge the Secretary of State's decision to withhold payment of compensation, Mr. McFarland has been denied relief by Kerr J ([2002] NIQB 14, [2002] NIJB 154) and by the Court of Appeal in Northern Ireland (Carswell LCJ, Campbell LJ and Weatherup J: [2002] NICA 28, [2002] NI 337). He renews his challenge before the House.

    THE FACTS

  2. A nurse complained that Mr. McFarland had entered her room in the nurses' home at Tyrone County Hospital, Omagh, late at night and touched her indecently. Mr. McFarland was questioned by the police and admitted that he had been in the nurse's room and might have touched the nurse, but not that he had done so indecently. He was charged with indecent assault and pleaded guilty through solicitors at the Omagh Magistrates' Court in December 1998. In January 1999 application to vacate his plea of guilty was made to Mr. McRandal, the resident magistrate. He required medical evidence to support the application, but it was granted by another magistrate. The case came on for hearing before Mr. McRandal on 5 May 1999, when application was made that the magistrate should disqualify himself because he knew of the original plea. The magistrate did not accede to this application, the hearing proceeded and the complainant gave evidence.

  3. After this evidence the magistrate called prosecuting and defending counsel to see him privately in chambers, in the absence of Mr. McFarland. As a result of this meeting, defending counsel spoke to Mr. McFarland and, as put in McFarland's affidavit sworn on 7 March 2000,

    He lead [sic] me to understand that the Magistrate had taken a very strong and favourable view of the evidence of the two witnesses that he had heard. He advised me that if I continued to contest the matter his understanding was that the Magistrate would most certainly refer the matter to the High Court for sentencing where I would receive a sentence of 18 months or more ....

    In the light of this intimation Mr. McFarland changed his plea to guilty. His counsel sought an adjournment so that a pre-sentence report could be obtained, but this was refused and Mr. McFarland was sentenced to eight months' imprisonment. He appealed to the county court, but the county court judge questioned whether he could entertain an appeal following a plea of guilty; the appeal was withdrawn and the conviction affirmed. Mr. McFarland served the appropriate part, four months, of the term imposed upon him.

  4. Having served his sentence, Mr. McFarland applied for judicial review to quash his conviction. The application came before a Divisional Court (Carswell LCJ and Sir John McDermott) on 20 June 2000, and on 30 June the court gave judgment quashing the conviction: [2000] NI 403. There were before the court affidavits sworn by Mr. McFarland, the magistrate and counsel who had represented Mr. McFarland in the magistrates' court, which to some extent conflicted. But it was plain that there had been a private meeting in the magistrate's chambers, that the magistrate had commented on the strength of the complainant's evidence, that the magistrate had mentioned the possible need to refer the case to the Crown Court for sentence, where a sentence of eighteen months' imprisonment might well be imposed, and that defence counsel had passed on the gist of the magistrate's observations to Mr. McFarland. Having analysed the affidavit evidence the Divisional Court rejected as "unfounded" the complaint made by Mr. McFarland that he had been subjected to pressure by which his will had been overborne. The court however acceded to an alternative submission made on behalf of Mr. McFarland, that he had been misled by the magistrate's reference to sending the case to the Crown Court for sentence and to a sentence of eighteen months', since under the relevant legislation the magistrate could not commit Mr. McFarland to the Crown Court for sentence after conviction, and therefore the maximum sentence which Mr. McFarland could have faced on conviction by the magistrate was twelve months'. The court treated the case as analogous with that considered in R v Turner [1970] 2 QB 321, 326, where Lord Parker CJ observed that

    once [the defendant] felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.

    Giving the judgment of the court Carswell LCJ concluded (page 409):

    The conviction in the present case is flawed, because it rests on a plea of guilty which was vitiated by the lack of true consent on the part of the applicant brought about by misapprehension stemming from the magistrate's discussion with counsel.

    The court accordingly quashed the conviction and ruled that there could be no retrial. The judgment ended with cautionary observations discouraging judges and magistrates from discussing with counsel in chambers matters relating either to issues in the case or to sentence:

    .... we take the view that judges should exercise a considerable degree of reticence about giving an indication of the penalties which they have in mind. We certainly consider that they should be careful to avoid entering into discussions such as those in the present case which could be interpreted in such a way by the defendant as to affect his free will in deciding on his course of action.

  5. On 25 July 2000, Mr. McFarland's solicitors applied to the Secretary of State for compensation.

    THE PAYMENT OF COMPENSATION

  6. In any liberal democratic state there will be those who are accused of crime and are acquitted at trial. There will also be those who are convicted at trial but whose convictions are quashed on appeal. All will suffer the stigma of being accused and the trauma of standing trial. Those convicted at trial are also likely to suffer some months of imprisonment before their appeals are heard. The question inevitably arises whether the state, which has initiated such unsuccessful, or ultimately unsuccessful, prosecutions should compensate those, or some of those, who are acquitted.

  7. This is a difficult and sensitive question, for two main reasons.

    • The first is that ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just deserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter.

    • The second source of difficulty and sensitivity derives from the interaction, in this field, of judicial and executive activity. Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside. This is reflected in section 14(1)(a) of the Criminal Appeal (Northern Ireland) Act 1980 and is currently reflected in section 10 of the Criminal Appeal Act 1995, providing for suspect convictions to be referred to the Court of Appeal for a final decision. Only very rarely could it be appropriate for the executive to act in a way which threw doubt on a judicial decision.

  8. The payment of compensation to some acquitted defendants is by no means novel. Adolf Beck was compensated in 1904. But the practice has in recent years been put on a more systematic footing. On 29 July 1976 Mr. Roy Jenkins, as Home Secretary, in a written answer (HC Deb, 29 July 1976, cols 328-330), outlined the procedure to be followed when ex gratia payments were to be made to persons wrongly convicted or charged. Claimants were to be informed:

    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.

    The Home Secretary made clear that the assessor would take into account any expenses incurred by the claimant "in establishing his innocence or pursuing the claim for compensation." He continued:

    In considering the circumstances leading to the wrongful conviction or charge the assessor will also have regard, where appropriate, to the extent to which the situation might be attributable to any action, or failure to act, by the police or other public authority, or might have been contributed to by the accused person's own conduct ....

    On 29 November 1985, Mr. Douglas Hurd, as Home Secretary, was asked to make a statement with regard to the payment of compensation to persons who had been wrongly convicted of criminal offences. His written answer was (H.C. Deb., 29 November 1985. 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 the 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 proved 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.

    It has been the practice since 1957 for the amount of compensation to be fixed on the advice and recommendation of an independent assessor who, in considering claims, applies principles analogous to those on which claims for damages arising from civil wrongs are settled. The procedure followed was described by the then Home Secretary in a written reply to a question in the House of Commons on 29 July 1976 at columns 328-330. Although successive Home Secretaries have always accepted the assessor's advice, they have not been bound to do so. In future, however, I shall regard any recommendation as to amount made by the assessor in accordance with those principles as binding upon me. I have appointed Mr. Michael Ogden QC as the assessor for England and Wales. He will also assess any case that arises in Northern Ireland, where my right hon. Friend the Secretary of State for Northern Ireland intends to follow similar practice.

    This statement was adopted without modification or addition by the Home Secretary (Mr. Straw) and the Secretary of State for Northern Ireland on 17 June 1997.

  9. Section 133(1) of the Criminal Justice Act 1988 gave statutory effect to article 14(6) of the International Covenant on Civil and Political Rights, to which Mr. Hurd referred in his statement. For an applicant to qualify under that section it was, however, necessary that his conviction should have been "reversed", and that expression was defined in subsection (5) in terms which do not include the quashing of Mr. McFarland's conviction. His claim to compensation therefore falls to be considered only under the ex gratia scheme announced by Mr. Hurd.

  10. Mr. Larkin QC based his first challenge to the Secretary of State's refusal of compensation on the terms of article 14(6) of the ICCPR, which Mr. Hurd had incorporated in his statement. He contended

    • that Mr. McFarland had been convicted of a criminal offence;

    • that his conviction had in ordinary parlance been reversed, even if it had not been reversed within the narrow definition given to that expression in section 133(5) of the 1988 Act;

    • that this reversal had been on the ground of a new or newly discovered fact;

    • that this new or newly discovered fact had shown that there had been a miscarriage of justice; and

    • that accordingly he was entitled to be compensated.

  11. Skilfully and attractively presented though it was, this argument is subject to one fatal weakness: Mr. McFarland's conviction was not quashed on the ground that a new or newly discovered fact showed conclusively that there had been a miscarriage of justice, even if it be assumed in his favour (a highly debatable assumption, as the opinions of the House in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18 make clear) that a miscarriage of justice was conclusively shown. In his written Case Mr. McFarland contended:

    There is a 'newly discovered fact', in so far as the content of the conversation between the appellant's counsel and the resident magistrate in chambers became known to the appellant only after he instituted his application to quash the conviction and his counsel and the magistrate swore their affidavits.

    But it is clear, as shown above, that the gist of the conversation between the magistrate and counsel was known to Mr. McFarland at the time. The conviction was quashed because the magistrate's intimation was held to leave Mr. McFarland with no effective choice. Mr. McFarland did not know at the time that the magistrate had misunderstood his committal power but this, even if a newly-discovered fact, was not the ground on which the conviction was quashed: the magistrate's intimation would have been no less objectionable had he had the power which he believed himself to have. Both Kerr J (pp 162-163) and the Court of Appeal (paragraph 9) rejected this argument, and they were right to do so. As was said by the Court of Appeal in R v Secretary of State for the Home Department, Ex Parte Bateman and Howse (1994) 7 Admin LR 175, 182,

    the ground of the reversal was not .... the discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along.

  12. There is in my opinion a further reason why Mr. McFarland cannot rely on the reference to article 14(6) of the ICCPR which Mr. Hurd included in his parliamentary statement. This is that statutory effect has, since the date of Mr. Hurd's statement, been given to article 14(6) by enactment of section 133 of the 1988 Act. That contains provisions (such as the definition of "reversal") which are not to be found in article 14(6). But Parliament cannot have intended that those who failed to qualify under section 133 might nonetheless qualify under the corresponding passage of Mr. Hurd's statement. It is plain that section 133 was intended to supersede that part of the statement, and Mr. Straw's unqualified adoption of the earlier statement does not in my opinion displace this inference. This objection was not raised by Mr. McCloskey QC on behalf of the Secretary of State, but I think it clear that if Mr. McFarland's claim could not meet the condition in section 133 (as was admitted) it could not succeed in reliance on the corresponding passage in Mr. Hurd's statement.

  13. Mr. Larkin submitted, secondly, that Mr. McFarland was entitled to be compensated because he had spent a period in custody following a wrongful conviction, and this resulted from serious default on the part of a member of a public authority other than the police force, namely the resident magistrate. The first question is whether, within the meaning of Mr. Hurd's statement, the magistrate is to be regarded as a member of a public authority. In his letter on behalf of the Secretary of State, refusing payment, Mr. Mercer bluntly asserted that the magistrate was not a public authority. In his affidavit sworn in these proceedings, he elaborated this assertion a little and deposed: "I was advised that there is clear legal authority for the proposition that a Magistrate was not a public authority for the purpose of the statement." Mr. Mercer had been correctly advised. This was the opinion of the Divisional Court (Stuart-Smith LJ and Farquharson J) in R v Secretary of State for the Home Department, Ex Parte Harrison [1988] 3 All ER 86, 89, 92; of the Divisional Court (Leggatt LJ and McCullough J) in R v Secretary of State for the Home Department, Ex Parte Bateman and Howse (unreported, 5 May 1993), although in that judgment members of the Crown Prosecution Service were also, erroneously, excluded; of the Divisional Court (Rose LJ and Richards J) in R v Secretary of State for the Home Department, Ex Parte Garner [1999] 11 Admin LR 595, 607; of the Administrative Court (Thomas J) in R (Conlon) v Secretary of State for the Home Department (unreported, 11 December 2000, paragraphs 27-32); and, since the date of Mr. Mercer's decision, by the Administrative Court (Hooper J) in R (Al Daghir et al) v Secretary of State for the Home Department (unreported, 13 February 2004, paragraphs 29-40). In the present case, Kerr J thought it "obvious" that the Home Secretary did not intend to include judges or resident magistrates within the category of members of some other public authority (page 162), and in the Court of Appeal the contrary was not argued orally (paragraph 12). But the argument was revived before the House, on which none of the authorities cited is binding, and the argument must be considered on its merits.

  14. In support of his argument that a resident magistrate should be regarded as a member of a public authority, Mr. Larkin relied on Campbell v HM Advocate 1941 JC 86. That case concerned a bribe accepted by a member of a licensing court, and the question was whether such a court was a "public body" within the meaning of section 7 of the Public Bodies Corrupt Practices Act 1889, as extended by section 4(2) of the Prevention of Corruption Act 1916. Lord Fleming at first instance, and the Lord Justice-General (Normand), Lord Moncrieff and Lord Carmont on appeal, were doubtful whether a licensing court fell within the definition of "public body" in the 1889 Act, but all were agreed that it fell within the extended definition in the 1916 Act which applied to "local and public authorities of all descriptions". It was pointed out (page 88) that the functions of the court were "mainly of an administrative character" and that it had "complete discretionary power" with regard to the number of licences to be granted and the persons to whom they should be granted. I have no doubt that the decision in that case was correct. But the context in which the present question arises is wholly different. Our task is to consider the meaning of a ministerial statement, not a statutory definition of a different expression. I derive no help from this authority.

  15. It is of course possible to say that a judge or resident magistrate is a public servant, which is true, and to say that each is a member of the court to which he or she belongs. And section 6(3)(a) of the Human Rights Act 1998 defines the expression "public authority" as including courts and tribunals. But judges and magistrates would not in 1985 have been regarded as members of public authorities, and it is safe to infer that courts and tribunals were singled out in section 6(3)(a) of the 1998 Act precisely because they would or might not, but for that provision, have been recognised to be public authorities. It is in my opinion plain that when Mr. Jenkins referred in 1976 to "any action, or failure to act, by the police or other public authority" he was not meaning to refer to judges and magistrates. The same is true of Mr. Hurd's reference to "serious default on the part of a member of a police force or of some other public authority". The contrary argument is, to my mind, wholly unpersuasive.

  16. This conclusion makes it unnecessary to address the question whether there was here a "serious default" within the meaning of the same paragraph of Mr. Hurd's statement. This is a question which, as he has candidly acknowledged, Mr. Mercer did not consider. He was entitled to conclude that the question did not arise. But I would make three observations. First, had it been necessary to consider the question and make a judgment, the Secretary of State (or Mr. Mercer on his behalf) had properly to be guided by the judgment of the court which quashed the conviction. It would not generally be open to him to treat as minor what the court had treated as serious, or vice versa. He had to take his cue from the court. Secondly, had it been necessary to consider whether the resident magistrate's default in this case was serious, the Secretary of State would probably have concluded, on reading the judgment, that it was not. If the judgment contained criticism of the magistrate, it was of the mildest kind. Thirdly, I am somewhat concerned that the course followed in this case did not attract the censure which, as I think, it merited. The Code of Conduct for the Bar of Northern Ireland (6 March 2003) provides:

    16.24

    It is and always has been the practice in Northern Ireland that Counsel should have ready access to the Trial Judge but no discussion between Counsel and the Judge should take place unless the opposing Counsel is present or, having had reasonable notice, has declined to be present.

    16.26

    In criminal matters Counsel for the Defence should only in very exceptional circumstances and with the permission of the Judge inform the client or give the client to understand that there has been a discussion of any aspect of the case with the Trial Judge and must never say or suggest to the client that which Counsel knows is in the Judge's mind or purport to quote what the Judge has said in private. It is essential for Counsel at all times to maintain the confidentiality of the relationship between Counsel and the Judge.

    I would observe that the occasions when counsel may properly discuss a case with the trial judge otherwise than in open court, in the presence of the defendant, are rare. Occasions when he may properly withhold the fact or the gist of such a discussion from his client are rarer still (and counsel on this occasion, quite rightly, did not do so). I hope that these rules may be reconsidered and, if they are, the Bar may find it useful to take note of Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, para 45.

  17. Mr. Larkin's third major submission was that the Secretary of State (through Mr. Mercer) had misunderstood the decision of the Divisional Court quashing Mr. McFarland's conviction. I cannot accept this contention. In his decision letter Mr. Mercer did not attempt to summarise the effect of that decision. In his affidavit he noted the Lord Chief Justice's view that Mr. McFarland's plea of guilty was vitiated by a lack of true consent brought about by misapprehension stemming from the magistrate's discussion with counsel. He also noted the Lord Chief Justice's view that Mr. McFarland's will had not been overborne by pressure. This was an accurate representation of what the judgment said, even if the distinction drawn by the court was a fine one. It was not for the Secretary of State to go behind the judgment of the court.

  18. Mr. Larkin did not submit that this case fell within the exceptional category of cases in which facts emerge at trial or on appeal within time which completely exonerate the accused person.

  19. I would dismiss this appeal.

    Lord Steyn

    My Lords,

  20. I found the manner in which this appeal ought to be disposed of more troublesome than other members of the House. Since the reasoning adopted in dismissing the appeal gives rise to important questions of principle I must briefly record my concerns.

  21. I agree with Lord Bingham of Cornhill that Mr. McFarland cannot bring his case within article 14(6) of the International Covenant on Civil and Political Rights (1966) or section 133 of the Criminal Justice Act 1988.

  22. The remaining question is whether Mr. McFarland was entitled to compensation under the policy statement announced by Mr. Hurd on 29 November 1985, which has already been cited in full by Lord Bingham. The two limbs on which Mr. McFarland relies provide as follows:

    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.

    [The first limb]

    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.

    [The second limb]

    The question is whether Mr. McFarland can bring himself within the scope of the relatively narrow first limb, or, very much as a fallback position, within the more onerous provisions of the more general second limb.

  23. I turn to the question how under the first limb one should approach the question whether the court is "a public authority."

  24. Lord Bingham has observed that the Home Secretaries responsible for policy statements did not intend to include a court within the meaning of the concept of a "public authority": para 15. That I understand to be a reference to the personal views of the Home Secretaries. In my view, however, in respect of the many kinds of "soft laws" with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law. And on such a question of law it necessarily follows that the court does not defer to the Minister: the court is bound to decide such a question for itself, paying, of course, close attention to the reasons advanced for the competing interpretations. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular Minister may have had in mind.

  25. That brings me to another aspect of the reasoning in this case. Lord Bingham emphasises the fact that the statements of Mr. Jenkins and Mr. Hurd were made many years ago, i.e. in 1976 and in 1985. This suggests that we must look at the point of construction through the lens of an earlier era. This proposition too creates a difficulty. It is now settled that legislation, primary or secondary, must be accorded an always speaking construction unless the language and structure of statute reveals an intention to impress on the statute a historic meaning. Exceptions to the general principle are a rarity. If I am right in holding that the interpretation of a policy statement is a question of law, which must be approached objectively, it would be strange to regard ministerial statements as susceptible of only a historical interpretation. One is surely entitled to expect greater rather than less flexibility in interpreting ministerial statements. In my view the correct approach is that stated by Cross, Statutory Interpretation, 3rd ed (1995), at 51-52, namely that the legislation (here read policy statement) "should be interpreted in the light of its place within the system of legal norms currently in force" (author's emphasis).

  26. The phrase "a public authority" in the policy statement is not a term of art. It must be construed in a purposive way, taking particular account of the context. What does that involve in the present case?

  27. One must surely in the first place concentrate on the role of a court. In constitutional law as well as international law the courts are one of the three departments of state: Köbler v Republik Ostereich, judgment of ECJ, 2003, para 32. Institutionally a court is a public authority. The functions of a judge, magistrate or jury are of a public character. They exercise authority on behalf of the Monarch in deciding cases between the state and individuals, between individuals, and so forth. Institutionally and functionally a judge, magistrate and jury are therefore the paradigm of a public authority: see the illuminating discussion in Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003-2004, HL paper 39.

  28. In the modern world it is strange to say, in the context of the ex gratia scheme, that the police and the Crown Prosecution Service are public authorities but that a judge, magistrate and a jury are not public authorities. How can such a curious and unjust interpretation be right? Imagine a situation where a magistrate was bribed or biased in the sense of having a personal motive to find against a party. According to the holding of the majority such a case falls outside the scope of the words "a public authority". It is true, as Lord Bingham has mentioned, that this view has been upheld in a series of decisions, starting with an unmotivated obiter dictum in R v Secretary of State for the Home Department, Ex Parte Harrison [1988] 3 All ER 86, at 89 and 92. The distinctive feature of the subsequent decisions is emphasis rather than analysis. The decisions are conclusionary in nature, derivative from one another, and do not address the questions which arise let alone provide answers. The decisions are not binding on the House. Moreover, one is entitled to ask what citizens will make of the idea that victims of wrongful convictions may be compensated for a serious default of the police and prosecution, but in respect of very serious misconduct by a judge, magistrate or jury the policy statement excludes them. Surely, this creates the risk of an impression in the public mind of judges protecting their own kind. There must be something awry in the legal logic which leads to such a result.

  29. In my opinion the sensible and practical construction is to hold that a judge, magistrate and jury are within the meaning of "a public authority" in the policy statement. On the other hand, it would be acceptable to filter out minor errors by making clear that a very high threshold must be passed for something to constitute "serious default" on the part of a judge, magistrate or jury. Perhaps it must be something in the nature of misconduct.

  30. Given that a contrary view has prevailed on the point under consideration, it may be that the extant policy statement will now require explicit revision to cover serious default of a judge, magistrate or jury.

  31. That brings me to the question whether there was "serious default" on the part of the magistrate. Lord Bingham has summarised the factual position as follows:

    There were before the court affidavits sworn by Mr. McFarland, the magistrate and counsel who had represented Mr. McFarland in the magistrates' court, which to some extent conflicted. But it was plain that there had been a private meeting in the magistrate's chambers, that the magistrate had commented on the strength of the complainant's evidence, that the magistrate had mentioned the possible need to refer the case to the Crown Court for sentence, where a sentence of eighteen months' imprisonment might well be imposed, and that defence counsel had passed on the gist of the magistrate's observations to Mr. McFarland.

    For my part this was outrageous conduct on the part of the magistrate reminiscent of judicial habits of a bygone era. It deserved severe censure. However, as Lord Bingham has observed, if the judgment contained criticism of the magistrate, it was of the mildest kind: [2000] NI 403. I am troubled by the position that has arisen. Allegiance to the discipline of the law requires one to follow the indisputable evidence where it leads.

  32. Given the terms of the judgment, on which the Secretary of State was entitled to base his decision about an award of compensation, I would nevertheless with considerable hesitation not press to a dissent my view that there was "a serious default" by the magistrate.

  33. I would accept that the decision of the Secretary of State that Mr. McFarland does not qualify for compensation under the second limb was open to him in the circumstances of the case.

  34. I would also dismiss the appeal.

    Lord Scott of Foscote

    My Lords,

  35. Persons who have been imprisoned following a conviction which later has been quashed have two possible routes for seeking compensation. One route is to claim compensation under section 133(1) of the Criminal Justice Act 1988. The other is to apply for an ex gratia payment from the Home Secretary. The difference is obvious. If the case can be brought within section 133(1), the claimant has a statutory right to compensation. If it cannot be brought within the section, the claimant has no right to compensation but merely the hope, and sometimes the expectation, that he will be the recipient of an ex gratia payment.

  36. The facts of the present case have been set out by my noble and learned friend Lord Bingham of Cornhill. As my noble and learned friend has explained in paragraph 9 of his opinion, Mr. McFarland cannot bring his case within section 133(1). If he is to receive compensation it must be an ex gratia payment.

  37. In a statement to the House of Commons made on 29 November 1985 the then Home Secretary, Mr. Douglas Hurd, explained the circumstances in which he would be prepared in the future to make ex gratia payments of compensation to persons who had spent time in custody before their convictions had been quashed. This statement has been overtaken in part by the enactment of section 133(1) of the 1988 Act but, apart from that, has not been modified or added to and has been the basis on which successive subsequent Home Secretaries have made, or refused to make, ex gratia payments.

  38. Mr. McFarland applied to the Secretary of State for compensation but his request was refused. He brought an application for judicial review challenging the refusal. The relief sought included a declaration that

    the Applicant is entitled to have a decision by the Secretary of State in accordance with the law on his request for compensation arising out of his imprisonment on a wrongful conviction.

    and an order that

    the matter be remitted to the Secretary of State to be considered in accordance with the ruling of this Court.

  39. In the courts below and in this House the Home Secretary's statement of 29 November 1985 has been subjected to a process of construction and analysis with a view to ascertaining whether the facts of Mr. McFarland's case bring him within one or other of the categories of case in which, according to the statement, the Home Secretary would be prepared to make an ex gratia payment. Having read the opinion of Lord Bingham I am in full agreement with the reasons he has given for concluding that Mr. McFarland's case falls within none of those categories. I agree, in particular, that section 133(1) has subsumed the category of cases that would previously have fallen within Article 14(6) of the International Covenant on Civil and Political Rights. I agree also that a magistrate would not normally be regarded as "a member of a police force or of some other public authority". But this process of construction and analysis of the Home Secretary's statement that your Lordships, and the courts below, have engaged in seems to me sufficiently odd to warrant a few supplementary remarks.

  40. In making ex gratia payments the Home Secretary is disbursing public money. But he is not doing so pursuant to any statutory duty or statutory power. There is no statute to be construed. He is exercising a Crown prerogative. He is accountable for what he does with public money to Parliament and, in particular, to the House of Commons. The making of ex gratia payments is lawful if, but not unless, there is Parliamentary authority for the disbursements (see Auckland Harbour Board v The King [1924] AC 318 per Viscount Haldane at pp 326/7). Your Lordships have, not surprisingly, not been addressed on this aspect of the ex gratia scheme but presumably the ex gratia payments in wrongful conviction cases are authorised by some provision in the annual Appropriation Act.

  41. So, on the footing that the requisite Parliamentary authority exists, the ex gratia payments are lawfully made under the prerogative power of the Crown. It is now well established that the Crown prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review (see R v CICB Ex Parte Lain [1967] 2 QB 864 and R v CICB Ex Parte P [1995] 1 WLR 845). But the scope of the courts' powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one.

  42. In the present case Mr. McFarland's complaints about the refusal of his compensation claim seem to me to be a distance away from what would be necessary to impugn the refusal. If the Secretary of State is not willing, post the enactment of section 133(1), to consider making payments pursuant to Article 14(6) of the ICCPR, there is nothing irrational about that. If the Secretary of State is not prepared to make ex gratia payments to compensate those who have suffered imprisonment on account of some serious error by a judge or magistrate, there is nothing irrational in that. Nor would there be anything irrational in a policy that did allow ex gratia payments in such cases, a policy that many, or most, might prefer. The policy, bar irrationality, is for the Secretary of State.

  43. Accordingly for these reasons, as well as those given by Lord Bingham, I would dismiss this appeal.

    Lord Rodger of Earlsferry

    My Lords,

  44. I have had the privilege of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons he gives, I too would dismiss this appeal.

    Lord Walker of Gestingthorpe

    My Lords,

  45. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons given in his speech, with which I agree, I too would dismiss this appeal.


Cases

R v Turner [1970] 2 QB 321; R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; R v Secretary of State for the Home Department, Ex Parte Bateman and Howse (1994) 7 Admin LR 175; R v Secretary of State for the Home Department, Ex Parte Bateman and Howse (unreported, 5 May 1993); R v Secretary of State for the Home Department, Ex Parte Harrison [1988] 3 All ER 86; R v Secretary of State for the Home Department, Ex Parte Garner [1999] 11 Admin LR 595; R (Conlon) v Secretary of State for the Home Department (unreported, 11 December 2000); R (Al Daghir et al) v Secretary of State for the Home Department (unreported, 13 February 2004); Campbell v HM Advocate 1941 JC 86; Köbler v Republik Ostereich, judgment of ECJ, 2003; Auckland Harbour Board v The King [1924] AC 318; R v CICB Ex Parte Lain [1967] 2 QB 864; R v CICB Ex Parte P [1995] 1 WLR 845

Legislations

Criminal Appeal (Northern Ireland) Act 1980: s.14(1)(a)

Criminal Appeal Act 1995: s.10

Criminal Justice Act 1988: s.133(1)

International Covenant on Civil and Political Rights: Art.14(6)

Public Bodies Corrupt Practices Act 1889: s.7

Prevention of Corruption Act 1916: s.4(2)

Human Rights Act 1998: s. 6(3)(a)

Code of Conduct for the Bar of Northern Ireland (6 March 2003)

Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870

Authors and other references

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

Douglas Hurd ( Home Secretary), written answer in House of Commons Debate, 29 November 1985.

Cross, Statutory Interpretation, 3rd ed (1995)

Joint Committee on Human Rights, " The Meaning of Public Authority under the Human Rights Act", Seventh Report of Session 2003-2004, HL paper 39.

Representations

Larkin QC for McFarland

McCloskey QC for the Secretary of State


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