House of Lords
|Session 2003 - 04
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|Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent)
THURSDAY 29 APRIL 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent)
 UKHL 18
LORD BINGHAM OF CORNHILL
1. On 20 December 2002 the Court of Appeal (Schiemann and Rix LJJ and Pumfrey J) held ( EWCA Civ 1882,  QB 993), reversing a decision of the Queen's Bench Divisional Court (Simon Brown LJ and Scott Baker J:  EWHC 230 Admin,  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  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:  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):
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  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):
He concluded (on page 64):
Lord Hoffmann correctly characterised this salutary jurisdiction, in my respectful opinion, when he said in R v Looseley  UKHL 53,  1 WLR 2060, paragraph 40:
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.
This passage plainly assists the Secretary of State. But
(i) the United Kingdom has neither signed nor ratified Protocol 7.
(ii) 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.
(iii) the Report is prefaced by a statement that it does not constitute an instrument providing an authoritative interpretation of the text of the Protocol.
(iv) 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".
(v) 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
But the only authority quoted for this observation is the Explanatory Report discussed above. A different view is taken by van Dijk and van Hoof (Theory and Practice of the European Convention on Human Rights, 3rd ed, p 689) who write:
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 W J H v The Netherlands (No 408/1990, 31 July 1992) the Human Rights Committee said, in paragraph 6.2:
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)  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:
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
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:
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.
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  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  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  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.