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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mullen, R (on the application of) v Secretary of State For the Home Department [2002] EWHC 230 (Admin) (21st February, 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/230.html Cite as: [2002] EWHC 230 (Admin), [2002] 1 WLR 1857, [2002] WLR 1857, [2002] 3 All ER 293 |
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(QUEEN’S BENCH DIVISION - ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL | ||
B e f o r e :
and
MR JUSTICE SCOTT BAKER
____________________
Regina (On the application of Nicholas Mullen) | ||
- and - | ||
The Secretary of State for the Home Department |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
P Sales Esq & H Keith Esq (instructed by The Treasury Solicitor) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
Introduction
“(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 … 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.
[I need not read section 4A, inserted by the Criminal Appeal Act, 1995, which specifies certain matters to which the assessor must have regard in assessing compensation]
(5) In this section ‘reversed’ shall be construed as referring to a conviction having been quashed (a) on an appeal out of time; …”
Miscarriage of Justice
“In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant, 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 were also acting in breach of public international law.” (156D-E).
“No challenge is sought to be made to the conduct of the trial itself and the appeal has proceeded on the basis that, if it was fair to try him, the appellant was properly convicted.” (145B)
“… the appellant, as he now concedes, was properly convicted …” (154F-G)
Although the claimant has subsequently disputed making any concession to that effect, the plain fact is that no argument was ever advanced that he was not in fact guilty of the offence charged against him.
“… there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself …” (162A-B)
“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 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 appellant 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 Bennett and Latif, very considerable weight must be attached.” (156F-157A)
“… it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R -v- Horseferry Road Magistrates’ Court ex p Bennett (1994) 98 Cr App R 114. Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place … the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impressing that the court will adopt the approach that the end justifies any means.”
“… certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.” (155A)
“… 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.” (157E)
“… 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 appellant were unlawful.” (157F-G)
“The effect of the amendment is simply to concentrate the mind on the real issue in every appeal from the outset.”
“… in our judgment, for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed, the Oxford Dictionary gives the legal meaning of ‘unsafe’ as ‘likely to constitute a miscarriage of justice’. Sir John Smith’s article to which we have referred does not deal with unsafe in relation to abuse …. But, for the reasons which we have given, we agree with his 1995 conclusion that ‘unsafe’ bears a broad meaning and one which is apt to embrace abuse of process of the Bennett or any other kind.”
“He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for 3½ years when he should not have been convicted or imprisoned at all …. The man in the street would regard that as a miscarriage of justice and so would I.”
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
“The 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.”
Article 6
Ex gratia compensation
“… having regard to the fact that the three terrorists suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head.”
Mr Justice Scott Baker:
LORD JUSTICE SIMON BROWN: For the reasons given in the judgment, which has already been handed down, this application fails and is dismissed. Thank you for your helpful note, Miss Lloyd-Jacob, about the typo, which I hope you have put right in the proposed orders, which I doubt are in dispute.PRIVATE
Mr Sheldon, you appear for the respondent. We simply dismiss the application and make an order for detailed assessment of the claimant's costs. Are you content for now with no further order for costs?
MR SHELDON: My Lord, our application is for costs, although not to be enforced without the permission of this court.
LORD JUSTICE SIMON BROWN: You want a football pool order?
MR SHELDON: Exactly.
LORD JUSTICE SIMON BROWN: I do not think you can resist that, can you, Miss Lloyd-Jacobs?
MISS LLOYD-JACOBS: My Lord, no.
LORD JUSTICE SIMON BROWN: Very well, then, we make that order, and we have your helpful written submissions on permission to appeal, Miss Lloyd-Jacobs. If you want to add to them, you may, but I am afraid we have a very clear view at his stage. We do not think this is an appropriate case to go further. Obviously, you can make your application directly to the Court of Appeal but we, for our part, refuse. Thank you very much.