Judicial review – Criminal Justice Act 1988 – Claim
for compensation for miscarriage of justice – claim is
alternative under ex parte scheme – whether applicant
victim of miscarriage – whether decision of Secretary of
State flawed.
The
applicant took the matter to the European Court of Human
Rights alleging a breach of Articles 3 and 6 of the
Convention. The European Court by its decision given May
2000 held that the circumstances of the applicant's
detention in Castlereagh led to a violation of Article 6(1)
read in conjunction with Article 6(3)(c) because he had been
denied access to a solicitor during his detention. The court
considered that the central issue raised by the applicant's
case was his complaint that in a coercive environment he had
been prevailed upon to incriminate himself without the
benefit of legal advice. The applicant had made a specific
request to see a solicitor on arrival at Castlereagh. The
decision was taken to delay his access to a solicitor and he
was questioned for more than 48 hours without access to
legal advice. He made his confession on 17 December and was
eventually able to consult his solicitor at 1.00 pm on 18
December 1988. Prior to his confession he had been
interviewed on five occasions for extended periods
punctuated by breaks. The European Court did not dispute the
finding by the trial court that the applicant had not been
ill-treated and did not dispute the conclusion that the
confession had been voluntary. In paragraph 43 of the
judgment of the European Court it was stated:
"Apart from his contacts with the doctor, the
applicant was kept incommunicado during the breaks between
bouts of questioning conducted by experienced police
officers operating in relays. It sees no reason to doubt
the truth of the applicant's submission that he was kept
in virtual solitary confinement throughout this period.
The court has examined the findings and recommendations of
the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment and Punishment in respect
of the Castlereagh Holding Centre …. It notes that the
criticism which the CPT levelled against the centre has
been reflected in other public documents. The austerity of
the conditions of his detention and his exclusion from
outside contact were intended to be psychologically
coercive and conducive to breaking down any resolve he may
have manifested at the beginning of his detention to
remain silent. Having regard to these considerations, the
court is of the opinion that the applicant, as a matter of
procedural fairness, should have been given access to a
solicitor at the initial stages of the interrogation as a
counterweight to the intimidating atmosphere specifically
devised to sap his will and make him confide in his
interrogators. Irrespective of the fact that the domestic
court drew no adverse inferences under Article 3 of the
1988 Order, it cannot be denied that the Article 3 caution
administered to the applicant was an element which
heightened his vulnerability to the relentless rounds of
interrogation on the first days of his detention.
44. In the court's opinion, to deny access to a lawyer for
such a long period and in a situation where the rights of
the defence were irretrievably prejudiced is – whatever
the justification for such denial – incompatible with
the rights of the accused under Article 6 …"
Following the decision of the European Court the Criminal
Cases Review Commission referred the applicant's case back
to the Court of Appeal under section 10 of the Criminal
Appeal Act 1995. Following the referral of the matter by the
Commission the Court of Appeal quashed the applicant's
conviction as unsafe. In the court's decision, given by
Carswell LCJ, [2001] NI 217 at 228 the court stated:
"Under section 2(1) of the Criminal Appeal (Northern
Ireland) Act 1980, as amended by the Criminal Appeal Act
1995, the Court of Appeal is to allow an appeal against
conviction if the court thinks it was unsafe and dismiss
the appeal in any other case. In this reference we have to
consider the effect of the argument now put before us,
which was not advanced to the trial judge, that he should
have exercised his discretion to refuse to admit
statements made by the appellant on the ground that it was
unfair in all the circumstances of the case, and taking
into account the atmosphere of Castlereagh, to decline to
allow him access to legal advice for the period of 48
hours after his arrest. Such an argument could not have
succeeded if made at the time of the appellant's trial in
1990 or his appeal to this court in 1993. Parliament had
by enacting section 15 of the Northern Ireland (Emergency
Provisions) Act 1978 and its successor at section 45 of
the 1991 Act specifically authorised the deferment of
access to legal advice in certain circumstances for a
maximum period of time. The courts therefore could not
interpret section 8(c) of the 1978 Act or its successor as
giving authority to exclude a statement made by the person
detained which would have defeated the will of Parliament:
see Re Russell's Application [1996] NI 310 at 323
and 336 per Hutton LCJ. Since the trial judge was not
asked to exercise his discretion to exclude the statements
on the ground of denial of access to legal advice, this
court as an appellate tribunal has now to exercise the
discretion deferred on him see for example R v Doherty
(1999) Criminal Appeal Reports 274 at 281. If the law
applying in 1990 had remained unchanged at the present
time, we should be bound to reach the same conclusion that
we could not exclude the statements on that ground.
The legal landscape has, however, been fundamentally
changed by the enactment of the Human Rights Act 1998,
which is now in force. By section 7(1)(b) the appellant is
entitled to rely on his Convention rights sets out in
Article 6 in any legal proceedings (which by section 7(6)
include an appeal against the decision of a court). By
section 22(4), section 7(1)(b) applies to proceedings
brought by or at the instigation of a public authority
whenever the action in question took place. Section
2(1)(b) requires the court determining a question which
has arisen in connection with the Convention right to take
into account any judgment of the ECHR."
The court went on to conclude that in determining the
appeal the court had to judge its safety by applying the
standards of today accepting the correctness of the decision
in R v Bentley (1999) Criminal Law Review 330 and R
v Johnston [2002] All ER (D) 2026. The court came to the
conclusion that in light of the European Court ruling the
conviction was unsafe.
[4] Mr
Treacy QC on behalf of the applicant argued that the
applicant's conviction was quashed as a direct result of the
conclusion of the European Court that there had been a
violation of his right to a fair trial. He contended that
the following could be characterised as new or newly
discovered facts:
(i) the conclusion by the CPT that the material
conditions in Castlereagh coupled with the intensive and
prolonged character of the interrogation process placed
persons detained therein under a considerable degree of
psychological pressure which if sufficient to break the will
of a detainee would amount to inhuman treatment;
(ii) the decision of the European Court that the
applicant's Article 6 rights had been breached and that he
had not had a fair trial;
(iii) the decision of the European Court that the
conditions in Castlereagh constituted an intimidating
atmosphere specifically devised to sap the applicant's will
and make him confess to his interrogators; and
(iv) the decision of the European Court that the
conditions in Castlereagh coupled with the administration of
the Article 3 caution were in breach of the applicant's
right to a fair trial was a newly discovered fact which
could not have been within the knowledge of the applicant or
the trial judge at the time of his trial.
Mr Treacy, founding his argument on Lord Bingham's
reasoning in R (Mullen) v Secretary of State
contended that the term "miscarriage of justice"
has a broader meaning than that ascribed to it by the
Secretary of State and is sufficiently brought to encompass
the facts of the present case. The only evidence against the
applicant was the confession made by him in conditions in
which he was subject to prolonged and intensive
interrogation conducive to breaking down any resolve he
might have manifested at the beginning of his detention to
remain silent. A finding by the European Court of a
violation of Article 6 must inform the reasoning of
"miscarriage of justice" within section 133 of the
1988 Act and the term must be sufficiently broad to
encompass a finding that the applicant did not have a fair
trial within Article 6. Following the ruling that the
applicant had been denied a fair trial under Article 6 and
the ruling of the court and following the Human Rights Act
1988 and the interpretative obligation contained in section
3 thereof, section 133 must be interpreted in a manner
consistent with the Convention rights. The phrase
miscarriage of justice must be sufficiently broad to include
a trial which was unfair within the meaning of Article 6.
Under the ex gratia scheme, if the applicant had to rely on
it, there was no exhaustive definition of exceptional
circumstances. The Secretary of State had a broad discretion
when concluding whether to make an ex gratia payment. In
this case the public authority whose actions were the
subject of censure were the police who had responsibility
for the applicant's conditions of detention, the prolonged
and intensive interrogation and the decision to deny him
access to a solicitor. The European Court decision led to
the conclusion that the conviction resulted from serious
default on the part of the police. In seeking to uphold the
decision of the Secretary of State Mr McCloskey QC contended
that there had been no new or newly discovered fact
establishing a miscarriage of justice. The critical
impediment was the absence of access to legal advice, this
forming the sole basis of the Court of Appeal decision to
quash the convictions. This was not a new or newly
discovered fact. It had been known throughout the history of
the proceedings. The Court of Appeal ruling was a legal
ruling on facts which were known all along. Lord Steyn in Mullen
required proof by an applicant for compensation that he was
clearly innocent. Lord Bingham preferred a more expansive
meaning of miscarriage of justice to encompass failure of
the trial process. In this case it had not been demonstrated
that the applicant was clearly innocent nor was there was
any proven failure of the trial process. As the law stood at
the time of trial the trial was fair and the law had been
correctly applied. In relation to the ex gratia scheme the
conclusion of the Secretary of State that there was no
serious default on the part of members of the police force
or other public authority could not be challenged as
Wednesbury unreasonable. The exceptional circumstances limb
of the policy requires the Secretary of State to exercise a
discretion and to form a rational judgment. It was open to
the Secretary of State to conclude that there was no case of
exceptional circumstances within the ambit of the scheme.
[7] There was no failure of the trial process in relation to
the original conviction of the applicant. He did receive a
fair trial under domestic law as it then stood. The trial
did not satisfy the requirements of the European Convention
but at the time of the trial and the first appeal the
applicant could not in domestic law rely on the Convention
as conferring any legal rights. In Mullen at
paragraph 9 Lord Bingham stated that the quashing of
Mullen's conviction was not the result of a failure in the
trial process:
Lord Bingham and Lord Steyn took different views on
whether an applicant for compensation would need to prove
his innocence before the case established an entitlement to
compensation. Reading the speeches of the Law Lords together
it is difficult to say that the House has reached a
considered view on that issue. The majority were content to
found the decision on the proposition that there had been no
failure of the judicial process. I would hold against the
applicant on the ground that he has not established that he
was a victim of a miscarriage of justice attributable to any
failure in the judicial process.
