Boyle, R (On the Application Of) v Criminal Cases Review Commission

MR JUSTICE MOSES: On 31 March 2003 Mr Justice Henriques gave permission for the applicant, Mr Boyle, to apply for judicial review of a decision of the Criminal Cases Review Commission refusing to refer his case to the Court of Appeal (Criminal Division). The facts of the matter are set out in his judgment which, I should emphasise, was a judgment giving permission. Towards the end of his judgment giving permission he indicated that it may be that a full hearing would not be necessary and the Commission would perhaps agree to reconsider the matter. It is not surprising he said that since - although I emphasise only on an application for permission - he did take the view there were strongly arguable grounds that the Commission had erred in reaching its conclusion.

Accordingly the Commission agreed to look at the matter again, particularly giving it a fresh review with new personnel looking at the matter since those originally involved were themselves accused of bias. I should emphasise for Mr Boyle's benefit that had the Commission not agreed to look at the matter again the matter would have had to be argued at a full substantive hearing, which would not have taken place probably until some time towards the end of July or possibly the next term which has not yet started.

The Commission did start work and drafted a consent order which they hoped would dispose of the matter. For reasons I wholly understand Mr Boyle was not happy to consent to any order and has come here today. So far as I can understand from his moderate submissions, his case is that this matter has been so long delayed - the Commission already having looked at it twice in the past and got it wrong, (the conviction dated back to March 1997) - in those circumstances this court should order that the Commission should be directed to refer the matter to the Court of Appeal (Criminal Division). He contends that the material on which he relies and the judgment of Mr Justice Henriques is so strong that the Commission are bound to refer. I have to say - coming to the matter afresh - that were such a thing to be possible it would be necessary to spend a number of days examining the very evidence that it is much more important for the Commission to review themselves. That it is possible for this Court to give such a direction to the Commission is accepted, but it is said that it would be rare, if ever, that it would be sensible to do so or that the material would be such as would enable a court to do so.

I am quite satisfied that even assuming that it is possible for such a mandatory order to be given - which I have not heard fully argued and which I do not decide, but even assuming that it were possible theoretically - it would be, in my judgment, wholly wrong to do so. Parliament has decided that it is the Commission who should review these matters and look into the facts. This Court is not in a position to do so. This court does not have the investigatory or fact- finding powers properly to reach any concluded view.

I fully accept what Mr Boyle says, that there are strong arguments which he says should lead the Commission to the conclusion that the matter should be referred. Mr Justice Henriques was of that view himself. But I stress that both this Court and Mr Justice Henriques are not in a position, such as the Commission, to reach any final view on the prospects of success of an appeal such as would compel the Commission to refer the matter.

I understand why it is that Mr Boyle feels so frustrated. He has nothing else to think about or ponder as he sits in his prison cell than the details of his case, but nevertheless this is a matter that the Commission has to look at and look at, as a fresh matter, uninfluenced by the previous views of those who had previously considered the matter and had refused to refer it. Mr Boyle's concern is that this will all take too long and the matters are sufficiently substantial as to require a reference straightaway.

I do not agree. For the reasons I have given this is a matter for the Commission to look at. As Mr Boyle has pointed out, there are a number of different matters. However strong one point may be - and there has been no concluded view, not even Mr Justice Henriques' judgment which was only a judgment on the question whether there should be permission to apply - it is obviously important that the Commission look at all five of the points upon which Mr Boyle relies. They have to investigate those different aspects of the matter, and it would be quite wrong for the Court of Appeal to be landed with another appeal without proper investigation into those issues.

I accept that the matter has hitherto, unfortunately, suffered some delay. Mr Justice Henriques' judgment was on 31 March 2003. It was only a "permission" judgment but it was obviously appropriate for the Commission to decide whether to look at the matter again or whether to fight the matter on a full substantive hearing. I do not know why it took as long as it did, from 31 March to 11 June, to make the decision to look at the matter again and to allocate the case to someone else. There is nothing I can do now about that delay. I am quite satisfied that since that date the Commission has been viewing the matter urgently and will continue to do so. Certainly they ought to do so while Mr Boyle is in prison, and says that all the matters upon which he wishes to rely are now before the Commission.

The upshot is that Mr Boyle has not been willing to agree to any order quashing the decision because he fears that will prevent him seeing that there is no future delay. I do not think that any such consent order would have done anything of the sort. Were the Commission to be guilty of an unlawful delay then Mr Boyle would have had a remedy. But there is no basis on which he can say that since June 2003 such delay has taken place.

In those circumstances I propose to make an order in the terms of the consent order although it is clearly not by consent. I shall quash the decision of the Commission of 13 November 2001 and 27 November 2001 and order a fresh review by the Commission of the claimant's case. The Commission must reconsider the claimant's application in the light of the comments of Mr Justice Henriques in his judgment dated 31 March 2003. The Commission must commission a report from an appropriately qualified expert on the exact nature of the claimant's elbow and chest injuries, whether the wounds showed signs of bullet fragmentation and what evidence there is that the wounds were caused by FMJ bullets; the Commissioners must investigate the allegation that the Deputy Assistant Commissioner Roy Clark lied on oath at an abuse of process hearing in October 1996 at the Central Criminal Court; it must investigate the allegation that prosecuting counsel misled the jury in relation to circumstances in which Mr Boyle was said to have absconded from custody and was subsequently re- arrested by the Garda; it must consider the extent to which reliance can properly be placed upon the evidence of Mr Brindle; must ensure that in the fresh review Mr Baden Skitt is not involved and must look at all the matters now before them in considering whether to refer the matter to the Court of Appeal.

For the reasons I have given it is not appropriate for this court to order that there be a reference today. I should add by way of parenthesis, I doubt whether that would assist Mr Boyle so far as timing is concerned because all the investigation would have to be done in any event. But I would stress, having heard him, that his complaints and his fears as to delay are well founded. It is vital that, having regard to past history of this matter, the Commission do its utmost to reach a full, fresh but speedy conclusion in deciding whether to refer this matter or not. For the reasons I have given I shall not make a mandatory order but the order I have made can be drawn up in the terms I have expressed.

MR CHRISTIE: I assume that the last paragraph of the order on page 99 is the one you would make.

MR JUSTICE MOSES: I am not sure about that; I will hear Mr Boyle.

THE APPLICANT: I presume that is the order in relation to costs.

MR JUSTICE MOSES: Yes. What do you say about costs?

THE APPLICANT: To put your Lordship in the picture, after getting leave from Mr Justice Henriques I engaged a solicitor and he was granted legal aid in the sum of £5,000, I believe. Without going into the details, we did not agree on certain matters and we parted our ways. It seems to me that - - I am not sure about all this, but any order as to costs the court would have, I assume, to reflect that sum.

MR JUSTICE MOSES: They can order a legal aid taxation so he would get the money from the Legal Aid Commission.

THE APPLICANT: There are also substantial costs on my part, for the past year since 1999, in relation to this case.

MR JUSTICE MOSES: What are those?

MR JUSTICE MOSES: I did not expect to have to argue that today, but they would be substantial amounts in terms of photocopying and my solicitor in Ireland has done an awful lot of work for me. Okay, that was .....

MR JUSTICE MOSES: Have you had to pay for that?

THE APPLICANT: No, I have not, in fairness, no. But I have had to pay for all the photocopying for the colour photocopying and a whole range of things over the years and it does come to a reasonable sum. I could not itemise it today. I also did ask in my skeleton argument for damages. I think it is an appropriate case because of the delay and because of the issue of advice and the right to impartial and a fair hearing.

MR JUSTICE MOSES: Thank you. What do you say about costs?

MR CHRISTIE: First and foremost, the costs that the applicant seems to be trying to claim are matters that do not strictly relate to this hearing. They go back four years. He has already had two unsuccessful judgments made against him.

MR JUSTICE MOSES: What about the costs of this hearing?

MR CHRISTIE: As far as this hearing is concerned, we were prepared to enter into the consent order as of 9 July and there was agreement with solicitors effectively over the telephone subject to formal confirmation. What happened was that then Mr Boyle and his solicitors parted company and so we are here today. We have made every effort to try and compromise this matter.

MR JUSTICE MOSES: I shall not make any order as to costs; I do not think that for today's hearing it is strictly necessary. Mr Boyle's main argument has failed today. I shall make no order as to costs but there will be a detailed legal aid assessment of his costs, and anyone he has employed - a solicitor - will get their costs. So far as the claim for damages is concerned, that was not enclosed with the original claim. I cannot see any basis for the claim for damages in those circumstances against the Commission. Properly directed, if there is a claim for damages it should be against the police, and that would have to await the outcome of the appeal. In those circumstances I shall not give permission to that effect for a claim for damages. In effect, this case is over. So resources should be directed to whether there should be an appeal.