Daghir & Ors, R (on the application of) v Secretary of State for Home Department

Two of the three claimants renew applications for permission to review the defendant’s decision to refuse them compensation in respect of periods spent in custody prior to the Court of Appeal quashing their convictions. The application for permission made by the third claimant, Peter Dimond, was ordered to be heard orally. The applications for permission and the full hearing have been heard together. Following the hearing Mr Bowen submitted further documentation and I received a note from Mr Keith.

Compensation is payable in certain circumstances pursuant to a written answer given by the then Home Secretary Mr Hurd in 1985. It is with the ex-gratia or non-statutory part of the scheme which these cases are concerned.

During the course of the hearing I asked Mr Bowen to agree with Mr Keith a summary of the issues in the case. That summary was corrected during the hearing as a result of concessions made by Mr Bowen and as a result of a refusal by me to allow Mr Bowen to amend his claim form to allege errors in conclusions reached by the Secretary of State on matters upon which reliance had not been placed in the submissions to the Secretary of State. At the conclusion of the case a corrected copy was forwarded to me.

I deal briefly with the statutory scheme which is set out in section 133(1) of the Criminal Justice Act 1988. That in broad outline requires the Secretary of State to pay compensation if a conviction has been reversed or if a defendant 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”. I turn to the ex-gratia scheme.

The 1985 written answer reads as follows (Core bundle, 209):

“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.

[Statutory scheme]…

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 [limb 1 as it is known].

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 that 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 on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought [limb 2 as it is known].

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 [now Lord Brennan 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.”

On the 17^th June 1997 it was confirmed by Mr Jack Straw in a written parliamentary answer that the government would continue to be bound by the terms of the scheme as set out by Mr Hurd in 1985.

The scheme is now operated by a group of six civil servants who are part of the Criminal Law and Policy Directorate at the Home Office. They refer to themselves and I shall refer to them as the Claims Assessment Team. The Team has the delegated authority to refuse any application for compensation. Any decision to award compensation starts as a recommendation by a member of the team but the decision is that of a minister. Included within the papers is a document marked Annex B and entitled “Compensation for Wrongful Conviction and Charge: Practice in Administering the Schemes” (core bundle, 212). This is a summary of departmental policy in the area and was included in briefing material prepared by the team for Ms Kate Hoey after she was appointed in July 1988 Parliamentary Under Secretary of State for the Home Department with policy responsibility for the schemes. The briefing was submitted to her on 7 August 1998. According to the witness statement of Robert Richie, the document reflected the policy in 1995 and in his words: “We continue to apply the policy as summarised in this document.” (243). It was not a document in the public domain. It was used as evidence in judicial review proceedings involving claims for compensation considered by Ms Hoey in 1998.

To the extent to which the document merely restates the 1985 statement I do not propose to set it out. In paragraph 9 it is stated that “the courts have consistently upheld the intention that the term ‘public authority’ does not extend to members of the judiciary”. That is true as a fact although this is one of the legal issues which I am being asked to resolve. Paragraph 9 supplements the 1985 statement by stating this:

“Allegations of serious default can of course vary enormously but the situations involved may include:

fabrication of evidence;

suppression or non-disclosure of evidence;

breaches of the Police and Criminal Evidence Act 1984;

failure to investigate properly”.

The document continues:

“There are no set criteria for determining whether the threshold of serious default has been met (this would be inappropriate for what is, in essence, a discretionary policy and any criteria might be construed as fettering that discretion).

10.

But there are a number of considerations which would have a bearing on the decision:

the significance of the alleged default in relation to the case (sourced from comments by the judge at voire dire or during hearing; Court of Appeal judgments; CPS; police or other public authority):

the status of the alleged default (i.e. whether it has been investigated and a reasonable explanation given or whether it can ever be substantiated);

what evidence exists to suggest that the default was deliberate or negligent;

whether those who committed the alleged default would have known the likely impact of their actions and it is reasonable for those involved to have been aware of this (e.g. did regulations exist which they should have known about etc.);

the cumulative effect of the alleged action – whether it is one devastating impact or the combined effect of a number of incidents.

In short, it is the context of the alleged default in relation to the case as a whole which is often critical to the decision; something which is considered exceptional in one case might not be so exceptional in another.

11.

If serious default is not alleged or established, consideration is given to whether the applicant has been completely exonerated within the terms of the statement. Complete exoneration has been construed as covering those rare cases where it is conclusively established that the accused person did not commit the crime. Acquittal of an offence in itself has not been construed as complete exoneration – but more generally as reflecting the operation of the due process of law. Under the 1985 statement, compensation is not paid ‘simply because at trial or on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.’

12.

Generally, exceptional circumstances are recognised when seen rather than defined in advance, and the 1985 statement has provided a reasonably wide discretion. The standard applied in considering ex-gratia cases has been very high and the number of payments made consequently small. The vast majority of ex-gratia applications have not met the terms of the 1985 statement and have been refused.”

Mr Keith states that the reference to the vast majority of applications having been refused was accurate at the time this was written although the percentage of refusals has now diminished.

The other document setting out the practice is dated April 2003 and is entitled “Practice in Administering the statutory and ex-gratia schemes” (core bundle 229). Mr Keith stated that the earlier version of this Practice and the one which would have been in force when the claimants’ cases were considered, is identical in so far as the passages which have been disclosed are concerned. Part of the document has been redacted, namely that part which relates to the statutory scheme. Paragraph 23 describes ex-gratia payments as by their very nature exceptional and then sets out a summary of the scheme which, for the purposes of these applications, adds nothing to the 1985 statement. Paragraph 24 similarly merely restates the 1985 statement. Paragraphs 25 and 26 deal with serious default:

“25.

In determining whether there has been a “serious default on the part of a member of a police force or of some other public authority” there are three questions to be asked:

(1)

Has the alleged default been committed by a member of a police force or of some other public authority? The vast majority of applications where serious default is an issue will involve allegations against the police. Other public authorities against whom allegations of serious default might be made, and which could if proven justify payment of compensation, include HM Customs & Excise, the Crown Prosecution Service, the Probation Service and Social Services. This is not, however, an exhaustive list. On the other hand, the Courts have consistently said that neither a judge nor a magistrate is a public authority (see paragraph 30 and 36(1) and successive Secretaries of State have taken the view that prosecuting Counsel is not a public authority (but see paragraphs 50 and 51).

(2)

Has there in fact been a default? There is a wide range of defaults that might be committed in the course of a wrongful conviction or charge, including any or all of the following:

(a)

fabrication of evidence;

(b)

suppression or non-disclosure of evidence;

(c)

breaches of the Police and Criminal Evidence Act 1984;

(d)

failure to investigate properly;

(e)

failure to follow correct procedures.

The first question to ask about any allegation of these or other defaults is whether it is well founded. Has the allegation been investigated and substantiated? Is there a reasonable explanation for an apparent default? Even if it is clear that there has been a default, this would not of itself automatically trigger a payment of compensation.

(3)

Does the default constitute a serious default for the purposes of the ex-gratia scheme? This will often depend on the individual circumstances of the case. There are no set criteria for determining whether the threshold of serious default has been met. But there are a number of considerations that would have a bearing on the decision, namely;

(a)

The seriousness of the alleged default in relation to the case (this may be apparent from: comments by the judge at voire dire or during hearing; the Court of Appeal judgment or comments made by CPS, police or other public authority);

(b)

What evidence exists to suggest that the default was deliberate or negligent (though on the one hand a negligent act does not necessarily constitute a serious default, and on the other even an “innocent oversight” can do – see paragraph 32 (4));

(c)

Whether those who committed the alleged default would have known the likely impact of their actions, or whether it is reasonable to assume they should have known (e.g. did regulations exist which they should have known about etc);

26.

In short, it is the seriousness of the alleged default in relation to the case as a whole that is critical to the decision not the significance of the outcome of the default. In Sheffield and Brook the Divisional Court said that when assessing seriousness, one ‘cannot refer to the consequences of the default, because in every case, where a default has resulted in a conviction, that default has resulted in a conviction that default must have had serious consequences. Accordingly we are looking at the nature of any individual default.’ If a decision is taken that, notwithstanding a serious outcome the default was not serious, it will be important to go on to consider whether the case comes within the category of ‘exceptional circumstances’”.

Mr Bowen submits that this policy does not require that the serious default is one which would only happen in exceptional circumstances. He contrasts his submission with one of the decision letters in this case (core bundle, 17, first two lines). The last three lines of paragraph 26 support, so he submits, his contention.

Paragraphs 27 and 28 deal with “complete exoneration” and they read

“27.

If serious default is not alleged or established, consideration is then given to whether the applicant has been completely exonerated.

28.

As a matter of practice, and in keeping with the exceptional nature of ex-gratia payments, the policy of successive Secretaries of State has been to pay compensation on the basis of complete exoneration only where facts emerge which establish beyond any doubt that the accused person did not commit, or could not have committed, the crime. The mere fact of an acquittal, whether at trial or an appeal, does not, of itself, completely exonerate the accused person, nor is it exceptional. Rather, acquittal of an offence in itself has generally been regarded as reflecting the operation of the due process of law because, under the terms of the 1985 statement, compensation will not [be] paid ‘simply because at 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.” (This aspect of the Home Secretary’s policy was upheld by the Divisional Court in April 1999 in R v Secretary of State for the Home Department ex parte Garner and Others.)”

Paragraph 29 reads:

“It is important to bear in mind that serious default and complete exoneration are only examples of ‘exceptional circumstances’ in which compensation might be paid. The Home Secretary’s discretion under the 1985 statement is effectively unlimited and, even if neither of these examples apply, there may still be other circumstances which, taken together or separately, are sufficiently exceptional to justify payment. In practice, cases where ex-gratia compensation is paid on grounds other than serious default or complete exoneration will be very rare. In the very few cases where other exceptional circumstances have been identified, there has generally been a combination of factors which individually would not have triggered a payment but which collectively tip the balance in favour of payment (e.g. a default that would not, on its own, be regarded as sufficiently serious to merit a payment, coupled with facts which tend to, but do not completely, exonerate the applicant). The circumstances of each case should therefore be examined as a whole, as well as against the specific examples.”

This is followed by summaries of various cases, summaries which Mr Bowen accepts as accurate.

Paragraphs 38 to 48 deal with the issue of judicial error. It repeats that judicial error does not constitute a “serious error by a public authority”. Paragraph 39 however goes on to deal with judicial error or misconduct in so far as the second limb of the scheme is concerned. Paragraph 39 continues:

“As indicated above, the Divisional Court said in Garner that it would be ‘a very rare case indeed where judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the statement requires’ (See also paragraph 40a.) Subsequently, in Tawfick, it said that ‘ a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances’. Beyond these remarks (and the fact the judge’s conduct in Tawfick was deemed to be ‘wholly exceptional’), there is little to guide us in determining what sort of judicial error might be ‘of such quality as to give rise to exceptional circumstances’. Neither can we, in considering the judicial errors that have occurred in individual cases, apply any fixed criteria (because to do so could be to fetter the Secretary of State’s discretion). But particular attention should be paid to anything that the Court of Appeal said about the nature and effect of the (alleged) judicial error. It is the effect of the error on the trial that is relevant here rather than the effect in the sense that it resulted in a conviction; whenever a conviction is quashed on the basis of one or more judicial errors, those errors can be said to have resulted in the original conviction, so this cannot be regarded as an exceptional factor. Essentially, as with serious default, it is the nature of the error rather than its consequences that determines whether it constitutes exceptional circumstances.”

Paragraphs 40 and 41 deal with the Derek Bentley case. The Secretary of State had found that such was the conduct of the then Lord Chief Justice that the case fell within the category of exceptional circumstances under the second limb.

Paragraphs 42 to 44 deal with the case of R (Tawfick) v. SSHD, Div. Court, Rose LJ and Moses J, 16/11/2000). In that case the Court held that no Secretary of State properly directing himself could have reached any other conclusion than that the trial judge’s behaviour during the trial fell within the category of exceptional circumstances within limb 2. The Court of Appeal had described the attack by the judge on the defendant’s integrity during the course of the trial as “wholly exceptional”, involving as it did such words as “hoodwinking” and “trickery”.

Paragraph 45 reads:

“In short, and whilst we can to some extent be guided by these two precedents, each case is considered on its individual merits and, as with serious default, it does not follow that a particular judicial error that is considered exceptional in the context of one case will necessarily be considered so serious in the context of another.”

Paragraph 46 refers to a case in which a court in Northern Ireland (see paragraph 51 below) had concluded that the Secretary of State for Northern Ireland was entitled to reach the conclusion that the conduct of the judge in that case did not fall within the second limb. The judge had invited counsel into his chambers and had entered into a discussion of the strength of the prosecution case which, so it appears, would have been likely to have given the impression that he was encouraging the appellant to change his plea to one of guilty.

Paragraph 47 states that no compensation is payable in the event of no period of custody being served.

Paragraph 48 reads:

“In considering whether there was judicial error or misconduct amounting to exceptional circumstances, the focus of our attention will almost invariably be judicial error or misconduct on the basis of which the Court of Appeal quashed the conviction (and which could thus be said to have ‘caused a period to be spent in custody’). However, the judgment of the Court of Appeal does not limit the considerations that the Secretary of State can take into account in determining whether or not to make an ex-gratia payment and to confine ourselves to considering only those errors that have been established as such by the Court of Appeal could be to fetter the Secretary of State’s discretion. Thus, consideration should also be given (if relied upon by the applicant) to alleged judicial errors that were not considered by the Court of Appeal. However, in the absence of any judicial or quasi-judicial findings or agreement on such errors, it is unlikely that there will be sufficient grounds upon which the Secretary of State could be satisfied that they either contributed to the conviction or could amount to or contribute to exceptional circumstances.”

Paragraph 49 and through to 51 deal with the position of prosecuting counsel and defence counsel. It is not necessary for me to summarise those paragraphs.

It is agreed that the appropriate test is to be found in a passage in the judgment of Lawton LJ in R v Criminal Injuries Compensation Board, Ex parte Webb [1987] QB, 74, 78 (approved by Dyson J in R v Criminal Injuries Compensation Board, Ex parte K and Another [1998] 1 W.L.R. 1458 at 1462:

“The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.”

There was some argument in the hearing as to whether the 1985 statement should be construed as if the reasonable and literate man was reading the document as if written to-day or reading it as it would have been read in 1985. Mr Bowen, for example, argued that the words “public authority” in limb 1 should be construed in the same way as those words are construed in the Human Rights Act. He also argued that because judicial error is now recognised as being capable of falling with limb 2, the words “public authority” in limb 1 should include judges. He also relies on the fact that Mr Straw affirmed the Government’s intention to apply the 1985 policy when he said on 17 June 1997: “I can confirm that I shall continue to be bound by the provisions for ex-gratia payment of compensation set out” in the 1985 statement.

I was referred to two cases in the House of Lords which offer guidance on this issue, albeit that both cases were concerned with legislation, rather than a policy statement: Royal College of Nursing v. Department of Health and Social Security [1981] 1 All ER 545 and Fitzpatrick v. Sterling Housing Association Ltd [1994] 4 All ER 705. In the former Lord Wilberforce said (564-565):

“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”

In Fitzpatrick v. Sterling Housing Association Ltd, which concerned with the meaning of the word family in the 1977 Rent Act and how it should be construed in the “present climate”, Lord Slynn said (710):

“It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts ‘fall within the parliamentary intention’ (see Royal College of Nursing of the UK v Dept of Health and Social Security [1981] 1 All ER 545 at 565, [1981] AC 800 at 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word ‘family’ to have a narrow meaning for all time, it would be a court’s duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court’s duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament’s function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation.”

Lord Slynn also stated (721) that the ordinary person test “tended to bedevil this area of he law”.

The first issue in all three claims relates to limb 1 and whether the Secretary of State concluded that the trial judge was not within the phrase “public authority”.

It seems to me that on a sensible reading of the 1985 statement the words “public authority” following as they do the words “on the part of a member of a police force” refer only to a body involved in the investigation and probably prosecution of offences. The Secretary of State accepts now that the prosecuting authorities do fall within the expression “public authority”, rightly in my view. The fact, upon which Mr Bowen relies, that under Annex B (paragraph 11 above) the Probation Service and Social Services are said to be within the phrase “public authority” does not help Mr Bowen. To the extent to which such bodies are involved in one way or another in prosecuting (e.g. breaches of orders in the case of the Probation Service), they might well fall within the phrase. Otherwise it would be difficult to see how their inclusion would be consistent with the 1985 statement.

Leggatt LJ in R v SSHD ex parte Bateman and Howse unreported, Div Court C0-1170-92, 5^th May 1993, at page 17 said:

“For the purposes of the cases with which the Court is now concerned, the term ‘public authority’ hardly seems apt to apply either to a judge, or to a parliamentary draftsmen, or indeed to a member of the Crown Prosecution Service, or prosecuting counsel. It looks as though the Home Secretary when enunciating his policy may have been intending to refer to authorities like the police responsible for initiating or maintaining prosecutions, and to express his intention to pay compensation for deliberate wrongdoing on their part.”

Whilst accepting that the Crown Prosecution Service and prosecuting counsel acting on or within the instructions of a prosecuting authority, may be wrongly excluded, it seems clear to me that Leggatt LJ rightly excluded judges. His conclusion is however obiter because he went on to say that it was not a matter of statutory interpretation of the words used by the Home Secretary:

“The question is whether his announcement of his policy in the House of Commons in 1985 and the subsequent implementation of it had given rise to a legitimate expectation to which in the cases now before the Court the Home Secretary did not measure up because he was in breach of his duty to act fairly in applying that policy.”

Leggatt LJ went on to say that the Home Secretary was entitled to decide that the wrongful admission of evidence by the judge did not constitute a serious default on the part of a public authority.

In the Court of Appeal (17^th May 1994) Sir Thomas Bingham MR appears to have approached the issue by asking himself whether the interpretation adopted by the Secretary of State was one that he was reasonably entitled to reach. Mr Keith for the defendant does not seek to uphold today that method of determining the meaning of the 1985 statement.

Earlier cases had reached the same conclusion as Leggatt LJ but it is right to say that it was Leggatt LJ who for the first time, it appears, explained why judges are outside the term “public authority”. This passage in Bateman has been followed subsequently in a number of cases. In R v SSHD ex parte Garner & ors (1999) 11 Admin Law Report Div Ct. (Rose LJ and Richards J), Rose LJ said (607):

“The respondent has, it seems to us, invariably proceeded on the basis that a judge is not a public authority within the first limb. That approach is correct as far as it goes.”

Rose LJ also said (page 600):

“Miss Dinah Rose, on behalf of Thompson, in submissions adopted by Counsel on behalf of all the other applicants, accepted that the Secretary of State is entitled to rely on authorities, which also bind this Court, which hold that a judge is not a public authority whose serious default can give rise to compensation under the first part of the statement …”

The Court went on to hold that judicial misconduct could be so gross as to fall within limb 2.

Thomas J also concluded that a judge is not a public authority for these purposes in R (Conlon) v SSHD Administrative Court 11 December 2000 C0/1504/2000.

Mr Bowen submits that the authorities which decide that a judge is not a “public authority” are wrong and should be re-visited in the light of what he describes as the inadequate or flawed reasoning of the courts which have reached that conclusion and in the light of the two decisions of the House of Lords to which I have made reference. As to the latter, there seems to be no new facts here, other than the fact that it is now accepted that judges fall within the second limb. Nor do I think that “there can be detected a clear purpose in the [policy] which can only be fulfilled if the extension is made”- indeed exactly the opposite. As to the former, even if the reasoning is inadequate or flawed, it seems to me that I am bound by the decisions, particularly Garner, and the conclusion reached in the cases that judges fall outside the expression “public authority” is the conclusion which I would independently reach. Mr Bowen’s submission is unarguable and I refuse permission to apply for judicial review on this ground.

I should add that, as I understand it, Mr Bowen is anxious to bring judges within limb 1 because, in his submission, limb 1 does not include any requirement of exceptional circumstances. In the light of the fact that the policy statement was, so it seems to me, designed to reflect the then current practice and in the light of the reference in the opening paragraph to the practice of 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”, I would find little merit in this argument, although I do not have to decide the point.

Given my conclusion, it is not necessary to resolve the questions in limb 1 (b) and (c) of the agreed summary of issues.

There remains only one other issue of law and that relates to the length of the sentences for Daghir and Forsyth and whether the defendant erred in law in concluding that length of sentence could not amount to exceptional circumstances under limb 2.

Daghir was sentenced to 5 years’ imprisonment but was released after 18 months when his conviction was quashed.

Forsyth was also sentenced to 5 years’ imprisonment but released on bail after 10 months by the CACD. In its judgment, the Court said:

“At the outset of the appeal the Court, without hearing submissions on the length of the sentence, stated that in the circumstances it considered that the sentence that it imposed is excessive and disproportionate to the appellant’s role in the offences.”

Mr Bowen submitted that the relevant sentence was the one passed and not the sentence actually completed. Thus if a person was sentenced by a judge to 5 years’ imprisonment and if that was a sentence which was not only an error but the result of gross judicial misconduct, then that would be the relevant sentence which would, on Mr Bowen’s submission, fall within limb 2, even though he was released the next day by the CACD.

The defendant’s view is that an error in sentencing cannot have led to a wrongful conviction so is outside the scheme designed to compensate for wrongful convictions. In Garner the Divisional Court said that the consequences of the conviction or charge are relevant to the amount of compensation but irrelevant to whether or not any compensation should be paid (page 607).

I accept that post-conviction matters may, as Mr Bowen submits, fall within limbs 1 or 2 (see R (Christofides) v. SSHD [2002] EWHC Admin 1083, paragraph 31). I give a possible example: the police conceal evidence favourable to the convicted defendant which has come into their possession of the police after the trial. Nonetheless the defendant’s view about an error in sentencing is, in my judgment, right. Mr Bowen’s submission is unarguable and I refuse permission to apply for judicial review on this ground.

The remainder of the challenges in the summary of issues are challenges to the rationality of the decisions reached by the defendant. I turn to those now examining the matter in relation to each claimant, but starting with some authorities relating to judicial misconduct and limb 2.

In Garner Rose LJ said (page 607):

“It will, no doubt, be a very rare case indeed where a judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the Statement requires. It will, as Sir Thomas Bingham MR made claim in ex parte Bateman and Howse, be an even rarer occasion in which the Court will interfere with the Secretary of State’s evaluative judgment in this respect.”

I turn to R (Tawfick) v SSHD. Moses J giving the judgment with which Rose LJ agreed set out passages from the transcript. That showed that during exchanges with the appellant in the presence of the jury, the appellant being unrepresented, the judge suggested that he was lying, said that he was not having the defendant “hoodwinking the jury”, that he did not want to “have any more of this trickery” and that the claimant was putting up a smokescreen. Moses J said: (paragraph 29):

“I accept Mr Keith’s [counsel for the SSHD] submission that not every error by a judge be considered exceptional. The Divisional court in Garner was concerned to emphasise that a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances. …It is necessary to concentrate upon the actions of the judge and to decide whether they amount to exceptional circumstances.”

In paragraph 30 Moses J said:

“Mr Keith contends that the Secretary of State’s conclusion of the conduct of the judge did not amount to exceptional circumstances was within the range of reasonable responses to the test provided in the Scheme. I disagree. The attack by the judge on the integrity of the defendant in open court in front of the jury was, to my mind, wholly exceptional. The attack was advanced on more than one occasion. The judge accused the defendant of hoodwinking the jury and of trickery. Although the judge had been provoked, the Court of Appeal did not regard those observations as excusable. They were likely to have led the jury to regard the defendant as a liar and a cheat. These observations, it must be recalled, were made in the context of allegations of dishonesty. Moreover it is important to recall that the defendant was acting in person and was thus without any protection. As he complained at the time, he was humiliated by the interventions of the judge directed against him.”

Moses J then referred to the Derek Bentley case and the fact that the Secretary of State had awarded compensation in that case. In paragraph 33 Moses J turned to the other arguments. He said:

“The additional argument that the judge failed properly to direct the jury as to the Crown’s case could not have amounted to an exceptional case … .”

In the matter of an application by William McFarland for judicial review [2002] NICA 28 the trial magistrate had invited Counsel into chambers and entered into a discussion of the strength of the prosecution case which would have been likely to give the impression that he was encouraging the defendant to change his plea to one of guilty. The Secretary of State had concluded that this judicial conduct, albeit unfortunate, did not overbear the appellant’s will even if it had the effect of vitiating his plea because of his lack of true consent (paragraph 20). The Court of Appeal concluded that the Secretary of State was quite entitled to reach the conclusion “that this case did not fall within the very rare class of cases qualifying for compensation on account of judicial misconduct.” (Paragraph 20)

There remains now two issues in the case of the claimant Ali Daghir:

The claimant Ali Daghir was charged with conspiracy to contravene the Export of Goods (Control) Order 1989. That order prohibited the export of certain defined goods without a licence from the Secretary of State for Trade and Industry. Amongst the goods for which a licence is required was electronic equipment specifically designed for military use. As the Court of Appeal Criminal Division said (25 May 1994), the prosecution had to establish that the capacitors were goods, the export of which without a licence was prohibited by the order and secondly that the defendant knew that the goods fell into a prohibited category.

Prior to the trial the prosecution stated that it would present the case against the defendant on the basis that the capacitors were specially designed for the firing of a nuclear bomb. Thus whereas all the prosecution needed to show (under the order) was that the capacitors were specially designed for military use, it put the case against the defendant in a much more limited and specific way.

As to state of mind, there seems to have been no dispute that the offence would be committed if the defendant knew that the capacitors fell into the category of goods specially designed for military use. It was not necessary to show that he knew that the goods fell into the category of goods specially designed for use in a nuclear weapon. It follows that the jury could not have convicted the claimant unless they were sure that he knew that he was exporting goods for military use to Iraq. However it is right to say that, according to Mr Bowen, but for the concession, the defence would have sought to defend the case on the wider basis.

In the words of the Court of Appeal Criminal Division:

“Having chosen to allege that the capacitors were for nuclear use, the prosecution had to prove that specific purpose if they were to satisfy the jurors on the first part of the case.

That was fully and properly accepted by the Crown in the appeal. Mr Moses conceded that if the jury was directed or left with the impression that it could convict on the basis that the capacitors were especially designed for military use generally, then the summing up was materially defective. He further conceded that such a defect could not be cured by the application of the proviso to s.2 of the Criminal Appeal Act 1968. The evidence during the trial and the lengthy arguments addressed to the jury by counsel, were directed at the case put forward by the prosecution that the capacitors had been designed for nuclear use since the Crown had nailed their colours to the mast, the defence was emboldened to call expert evidence, in particular for Mr Tilford, that the capacitors could be used in flash units for photographing explosives and ballistics. If the photography was of military ballistics, the capacitors could be said to be for military use … and rendering their export unlawful.”

In support of the claim for compensation, a witness statement from a Mr Geoffrey Cox, a barrister who had defended Mr Daghir, was submitted to the defendant. He states in paragraph 4 that the prosecution agreed not to argue for the application of the proviso under the Criminal Appeal Act 1968 if the appellant did not pursue a second round of appeal which related to fresh evidence. During the course of the opening, according to paragraph 5, of the witness statement, His Honour Judge Denison QC asked Mr Moses QC, as he then was, whether there was any need for the prosecution to prove specific nuclear use for the conspiracy charge. According to Mr Cox, Mr Moses replied that the prosecution did not wish to secure a conviction if there was any doubt that the capacitors were specially designed for nuclear use.

Before the Court of Appeal Criminal Division the appellant complained that the learned judge had left it open to the jury to convict if they found the capacitors were specially designed for any military use, rather than only nuclear use. The Court of Appeal then examined the summing up in detail. At one point in the summing up, the judge had made it clear that the prosecution’s case was that these capacitors were specifically designed for use in the firing system of a nuclear bomb. Subsequently however he told the jury that they could convict if they were sure that the capacitors were specifically designed and intended for bombs or missiles or for military use generally whether or not the military use was in connection with a nuclear weapon. Mr Moses conceded on the appeal that that direction clearly caused “difficulties”. In the words of the Court of Appeal:

“This passage in our view exposed the appellants to a significant risk of being convicted on a basis different from that on which the case had been fought.”

There were similar “inconsistencies” in other passages in the summing up. In conclusion the Court of Appeal said:

“Nowhere in the summing up did the judge tell the jury that the prosecution had to prove that these capacitors were designed for use in nuclear bombs unless they were sure that they must acquit. On the contrary there were, as we have shown, a number of passages suggesting design for some, any, military use would suffice. There was in the circumstances a material misdirection and since it is conceded that the proviso cannot be applied, we concluded that this appeal must be allowed and the conviction must be quashed.”

The appellant then sought compensation under the statutory and ex gratia scheme. I do not need to deal with the application under the statutory scheme. In a submission dated 11 September 2000 the claimant’s solicitors Dechert, submitted on his behalf that there had been (amongst other things) gross judicial misconduct by the trial judge in deliberately or negligently misdirecting the jury that they could convict on a broader basis than that relied upon by the prosecution.

On behalf of the claimant, Dechert made supplemental submissions on 15 July 2002. It was said in those submissions that the error of the trial judge was serious and exceptional in that, as an extremely experienced judge, he failed to put the case in the way that the prosecution had presented it, put the case on a basis which the prosecution had “specifically eschewed” “at the commencement of the case and consistently thereafter”. It was submitted that the defence had not only “geared its case to meet” the prosecution’s case but had called evidence which was enough to establish guilt if a charge had related only to military use and not nuclear bomb use.

On 30 October 2002 the defendant rejected the application for compensation in a substantial letter that dealt not only with the two grounds with which I am concerned but also the many other grounds that were being raised.

In paragraph 39 the defendant wrote:

“Aside from the misdirection, which it is accepted was fundamental to the case, there were no other adverse findings in relation to the judge’s overall conduct of the case and no other strong criticism of his summing up. There is certainly no evidence that the Court of Appeal questioned the judge’s integrity and the Secretary of State cannot find any support for your claim of ‘gross judicial misconduct’. He does not accept your allegation that the trial judge deliberately misdirected the jury nor that he was negligent in his approach.”

Paragraph 40 took issue, and rightly so, with a submission that the judge had completely failed to put to the jury the prosecution case that had been presented on the narrow basis. The judge had not.

The Secretary of State went on:

“However, the nature of the judge’s error was not so gross or exceptional as to fall within the second limb of the compensation scheme.”

He also wrote:

“He has concluded that whilst the Court of Appeal considered that a clear direction was needed in this case, the error in this case is not of the order of a very rare judicial error that might constitute exceptional circumstances.”

In the course of argument Mr Bowen did not seek to uphold the claim made by Dechert on behalf of the claimant that the trial judge had deliberately misdirected the jury.

The issue which I have to resolve is whether or not it is arguable that the defendant’s conclusion that the nature of the judge’s error was not such as to fall within the second limb of the compensation scheme is a conclusion which no rational decision maker could reach. In my judgment it is not arguable and I refuse permission to apply for judicial review on this aspect of the case.

I continue with the second issue, namely, whether the Secretary of State acted irrationally in deciding that the areas found against prosecuting counsel were not an exceptional circumstance. In the submissions of 11 September 2000 it was submitted that Her Majesty’s Customs and Excise could not have failed to appreciate that fact of the misdirection and its significance:

“The only reasonable inference which can be drawn from their silence is that they saw a better prospect of a conviction of the broader basis which overrode their previous consideration of the unfairness and injustice to the applicants [Daghir and Another] on the broader basis.”

According to the submission, HM Customs and Excise and counsel had decided four months before the appellant’s trial that it would be unjust to the applicants to allow the prosecution to proceed on a broader basis. It was submitted that HM Customs and Excise were seeking to secure a conviction “in order to seek to bolster its own tarnished reputation by making examples of” Daghir and the other applicant. It was further submitted that it was the duty of counsel instructed by Customs and Excise to “correct these fundamental errors going to the heart of the prosecution case” and reliance was placed upon the Code of Conduct for the Bar of England and Wales:

“It is to be inferred that the reason why Customs did not seek to instruct counsel to correct the learned judge in what was such fundamental and obvious misdirection ... (such that the Court of Appeal quashed the claimant’s conviction on that ground alone without applying the proviso), was that Customs believed that a conviction ... [was] necessary for the reasons set out above.

...

It was better for customs to obtain a conviction and an exemplary sentence at any cost and lose on appeal because of judicial error than not to obtain a conviction and exemplary sentence at all.”

By letter dated 10 September 2001 it was submitted that prosecuting counsel was under a positive duty to draw to the judge’s attention the failure to give any adequate and proper direction on the law but not the duty of defence counsel to correct the judge if a judge has gone wrong.

In the submission dated 15 July 2002 the criticism for not saying something to the judge about the misdirection was directed towards Mr Gibson Grenfell. It appears that Mr Alan Moses QC was not there during the summing up. Reliance was placed on a passage from the evidence of Mr Gibson Grenfell in an unsuccessful civil case brought against the Customs and Excise by the claimant. Mr Gibson Grenfell said in answer to a question by Mr Scrivener QC as to whether he spotted the error:

“The summing up was delivered by an extremely experienced judge: It did not seem to me appropriate to seek to correct the way in which he summed the case up.”

In the witness statement prepared by Mr Cox, he said this as to the summing up:

“I remember quite clearly that several weeks of the trial were devoted to dealing with a substantial amount of expert evidence in relation to the potential use of the capacitors. I also recollect that during my closing speech to the jury, I spent a great deal of time focussing on whether the prosecution had made out a case based on specific nuclear use.

It was therefore rather surprising to me when His Honour Judge Denison summed up to the jury that any military use would do. Such a direction was fundamentally and clearly inconsistent with the basis on which the case had been conducted throughout the trial that only special design for nuclear use would do. In view of the above, it seemed His Honour Judge Dennison had decided to take a particular view of the case. As defence counsel, I did not see that it was my duty to try to correct such a fundamental error of law.”

As to this ground the defendant wrote at paragraph 20:

“This allegation of deliberate or negligent failure by HMCE through prosecuting Counsel to correct the misdirection of the trial judge is rejected by HMCE. The Secretary of State understands that this allegation was dealt with in the interlocutory proceedings in the civil case and struck out. You will know that neither HMCE, nor their appointed independent practising barristers considered the judge’s summing up as a whole to be defective, because there were constant references to the evidence relating to special design for nuclear use. The Secretary of State is not satisfied that serious default is established. Your concerns about Counsel’s failure to correct the trial judge will be addressed below under the second limb.”

In paragraph 41 the defendant wrote:

“The Secretary of State has considered your criticism of Counsel’s failure at the time to bring the judge’s attention to what you perceive was an ‘obvious error’. I re-state that in Counsel’s view the summing up as a whole was not deficient. The Secretary of State is aware that Mr Grenfell’s evidence on this matter in the civil proceedings was ‘The summing up was delivered by an extremely experienced judge; it did not seem to me to be appropriate to seek to correct the way in which he summed the case up.’ … He later expanded on this by saying, ‘When I said, it didn’t seem to me to be appropriate to correct the learned judge’s direction, perhaps I should use a more appropriate phrase of to invite him to amend it. Because that would involve a subjective argument (inaudible) to move on.’ … The Court of Appeal did not make any adverse findings in relation to the conduct of prosecuting Counsel or HMCE in this regard (or any other) and the Secretary of State does not consider that the failure to intervene in the summing up amounts to exceptional circumstances.

Mr Bowen did not seek to uphold the submission made on behalf of the claimant by Dechert that the Customs and Excise and prosecuting counsel had deliberately not intervened in order improperly to secure a conviction.

In my judgment it is unarguable that the Secretary of State acted irrationally in reaching his conclusion about junior counsel for the prosecution failing to intervene during the course of the summing up.

Elizabeth Forsyth was an assistant to Asil Nadir and was convicted of two offences of handling stolen goods which arose out of the Asil Nadir/Polly Peck fraud allegations.

On 17 March 1997 the Court of Appeal Criminal Division quashed her conviction. It is not necessary in this judgment to set out the details of the allegations against Mr Asil Nadir. They are fully set out in the Court of Appeal judgment. The charge against her arose out of a single transaction which was initiated by Mr Nadir and the accounting department of one of Mr Nadir’s companies. The claimant was neither employed by nor involved in the affairs of that company.

According to the Court of Appeal:

“It was alleged against the appellant that, knowing or believing that the four hundred thousand pounds had been stolen from PPI [Polly Peck International] by Mr Nadir, she disposed of or assisted in the disposal of the four hundred thousand pounds by arranging for it to be sent from Switzerland to England.”

On the prosecution’s case, it was subsequently used for Mr Nadir’s personal purposes.

Whilst in Switzerland in October 1989 on business she was asked to pick up some cash. It was conceded by the prosecution that before her arrival in Switzerland she had no knowledge that she would be asked to assist in the movement of money. She picked up just under £400,000 and the following day she paid that amount into another bank account. She and another gave instructions that £307,000 should be transferred to a London bank account and she brought the balance of £88,000 back to England in cash.

It was accepted that the claimant received no personal benefit whatever but it was said that she must have realised that this was a misuse of money belonging to PPI. Her defence was that she had no reason whatsoever to believe that Mr Nadir would dishonestly appropriate money of PPI.

Among the grounds of appeal was one that related to whether or not the judge was wrong to hold that there was evidence on which the jury could conclude that the money disposed of by the claimant represented a stolen chose in action. The Court of Appeal agreed with his ruling that there was evidence on which a jury could find that the sum of money just under £400,000 collected by the appellant directly or indirectly represented the stolen chose in action. The Court, which rejected four grounds of appeal, declined to decide the second ground of appeal which related to a decision by the trial judge not to permit certain video evidence to be given by Asil Nadir who had fled to Northern Cyprus from which he could not be extradited. The defence also wanted to call similar evidence in the same way from other witnesses in Northern Cyprus. The Court said that as they were allowing the appeal on other grounds it was unnecessary for them to decide the issue, although it did say that the Court should be in favour of permitting evidence to be given this way.

The Court of Appeal went on to consider a sixth ground, a ground upon which the claimant was ultimately successful. The trial judge had provided to the jury a written direction based upon the judgment of the Court of Appeal Criminal Division in Hall [1985] 81 Cr. App. R 260 at 264. The Court of Appeal summarised her defence in colloquial language: “I could not believe that somebody like Mr Asil Nadir would need to steal money or would involve me in a dishonest transaction” (page 42). The Court went on:

“Whilst it is true that the direction as a whole is couched in subjective terms, we think it is open to misinterpretation. The appellant has said that she could not believe the money was stolen in spite of all the circumstances of suspicion suggested to her. Although it might have been obvious to others, it was not to her because of her trust and confidence in the integrity of Mr Nadir. We think the form of the directions may have left the jury with the impression that the appellant was guilty even though in her mind she could not accept that the goods were stolen. Thus the jury may have concluded that the appellant was guilty if they were satisfied that there were circumstances of great suspicion from which the only conclusion which could reasonably be drawn was that the goods were stolen but which the appellant because of her faith in Mr Nadir could not bring herself to believe so that her eyes had been closed to what was obvious.”

The Court went on to say:

“… It seems to us that [the trial judge] ought to have made it clear to them that they had to be satisfied that the appellant actually believed that the money was stolen.”

The Court said that the judge ought to have followed the guidance given in another case which was clear and reasonably more understandable and avoids the potential for confusion inherent in a direction based upon the decision in Hall (page 44) and concluded:

“On this crucial issue the judge’s direction could have led the jury to find the appellant guilty without finding that she actually believed the money was stolen. Accordingly we believe he misdirected them.

The Court went on also to find a further misdirection relating to the absence of a particular person as a witness for the defence.

The Court concluded the judgement with the following (page 51):

“The essential issue for the jury was did the appellant believe the money she was assisting to dispose of was stolen? We are not satisfied that had the jury been given an appropriate direction on the meaning of ‘knowing or believing’ they would have been bound to find the appellant guilty. Equally we consider that the [other misdirection] significantly undermines the safety of her conviction. Accordingly, for the reasons given, we consider the appellant’s conviction unsafe and allow her appeal”.

In a letter dated 1 March 2002 the claimant’s solicitors Dechert wrote to the defendant (core bundle. 38):

“Mrs Forsyth contends that the errors/conduct of the judge fell well short of expected standards of judicial competency generally and particularly concerning several crucial issues by a very senior High Court judge in an extremely important fraud case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly conducting serious fraud trials, and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case.”

The letter went on to say that Mrs Forsyth submits that, even if the trial judge was acting from the best of motives (“which has to be open to question”), his approach was so mistaken that it amounted to exceptional judicial error. The letter also complained of other alleged exceptional and judicial errors relating to the application to adduce evidence by video link, the second misdirection found by the trial judge in relation to the witness not called, a remark to the jury about delivering the money in “wheelbarrows” and the allegedly excessive sentence. On 27 September 2002 further supplemental submissions were made above the signature of Augustus Ullstein QC.

In the submissions it is said that the misdirection about the necessary mental state for the offence was “absolutely fundamental” and referred to serious criticisms of the trial judge at page 44 of the Court of Appeal judgment. In my view there was no serious criticism of the trial judge in the sense being alleged in these submissions. What the Court of Appeal was saying was that the judge ought to have used not the direction set out in one decision of the Court of Appeal but in another. As to the misdirection relating to the witness who was not called, this was described in the submissions as a “very basic error” and the error was “compounded” “by taking it upon himself to ignore the pleas of junior defence counsel (more than once urged upon the trial judge) to give a clear warning to the jury not to speculate about what [the missing witness] might have said”. There is a further reference to the money in wheelbarrows allegation. In paragraph 8 of the supplemental submissions it is stated:

“8.2

It follows that the five errors made by this senior and experienced judge in this case were, both individually and cumulatively far more than usually serious and thus fall into the category of ‘exceptional’.

8.3

All the errors (save perhaps that relating to the witnesses in Northern Cyprus), related to simple and straightforward matters which occur or are likely to occur in trials before full and part-time judges up and down the country on a weekly, if not daily basis.

8.4.

They are exceptional because:

8.41

The case was tried by a senior and experienced judge of the Queen’s Bench Division who ought to have been capable of conducting the trial without any basic error, let alone five fundamental errors of the nature set out above.

8.42

The errors were made against the background of a very high profile case in which, for the reasons set out in paragraph 2.5 above, scrupulous fairness and care was plainly required.

8.43

The errors (whether considered individually or cumulatively) demonstrate manifest unfairness on the part of the trial judge in that he:-

Was guilty of fundamental errors in the basic conduct of a trial on a simple charge;

Deprived Mrs Forsyth of the ability fully and properly to put her defence;

Made prejudicial comments to the jury about Mrs Forsyth on a matter which the very witnesses which she was not permitted by him to call could and would have gainsaid (transporting the money in wheelbarrows); and

…”

In paragraph 8.5 it is said that the “unusually serious judicial error or errors (whether considered individually or cumulatively) are so gross or of such a quality as to constitute exceptional circumstances”. It is further said that the unusually serious judicial errors have caused a period to be spent in custody.

The defendant in his letter of 31 October 2002 dealing with judicial error wrote:

“You contend that the conduct of the trial judge in Mrs Forsyth’s case should necessarily be classified as exceptional in the circumstances and that the errors/conduct of the judge fell well short of the expected standards of judicial competency generally and particularly concerning several crucial issues by a very experienced Senior High Court judge and rely on Bentley, Tawfick, Garner and Roberts.

We have considered whether the judge’s errors in your clients’ case constitute exceptional circumstance. Judicial error is one of the most common grounds on which convictions are overturned on appeal so the mere fact of there being a judicial error which renders a conviction unsafe will not, of itself, give rise to exceptional circumstances. The Divisional Courts said in Garner & Others (1999) that it would be “a very rare case indeed” where judicial misconduct … is of the exceptional nature which the second limb of the statement requires” (emphasis added). Subsequently, Tawfick (2000), the Court said, “a mere case of judicial error, such as a mistake in a summing-up or in a ruling as to admissibility, would not constitute exceptional circumstances” (emphasis added).

The judicial errors identified by the Court of Appeal in your client’s case were that the trial judge misdirected the jury as to the meaning of the words “knowing and believing”. The Court held that judge’s direction could have led the jury to find that Mrs Forsyth was guilty without finding that she actually believed the money was stolen. Secondly, the Court held that the judge should have hinted to the jury in strong terms against drawing any inference from the absence of Jason Davies from the witness. Without this direction, the Court considered that there was an evident risk that the jury may have discounted Mrs Forsyth’s account of how she came to be involved and from the absence of supporting testimony from Jason Davies have drawn conclusions unfavourable to her defence. As indicated in Louise Douglas’ letter of 2 March 2000 in out view, each of these errors is more akin to the kind of ‘mere … error’ described by the Divisional Court in Tawfick than to the rare and exceptional kind contemplated by the Court in Garner. In short, we do not consider that the errors made by the trial judge in this case, whether taken together or separately, amount to ‘exceptional circumstances sufficiently exceptional to merit an ex-gratia payment.

We have also considered the additional alleged errors by the trial judge which you have advanced i.e. the mistaken view of the provisions of s.32 (3) of the Criminal Justice Act 1988 in relation to Mrs Forsyth’s application to adduce evidence by video link, remarks to the jury about delivering the money in ‘wheelbarrows’, Five years imprisonment was excessive and disproportionate. You also say that the absence of express criticism of the trial judge by the Court of Appeal does not necessarily mean that the mistake or conduct is not exceptional.

Even though the Court considered the grounds relating to the trial judge’s rejection to Mrs Forsyth’s application to adduce evidence by video link, the Court did not quash the conviction on this ground. The Court felt that as they were allowing the appeal on other grounds, it was unnecessary for them to decide whether on a review of all the relevant circumstances we would have held that the judge should have permitted evidence to be given by video link. The Court stated that:

‘In general, once it is shown that there is difficulty in obtaining the attendance of witnesses abroad whose evidence is relevant to the defence, we consider the Court should lean in favour of permitting the evidence to be given in this way though in particular cases there may be reasons to refuse it. Even if on reviewing the exercise of the judge’s discretion we had concluded that the application should have been allowed, we would have had to consider whether the evidence denied to [Mrs Forsyth] was so significant that her conviction was unsafe’

The Court did not examine whether there were reasons to refuse permission for evidence to be given by video link in this case or whether that evidence was so significant that the refusal affected the safety of the conviction. Further, it appears relevant that the conclusion in Tawfick was that:

‘a mere case of judicial error, such as … in a ruling as to inadmissibility, would not constitute exceptional circumstances.”

In view of these points an error by the judge in respect of this point, if any, would not appear to constitute exceptional circumstances under the ex gratia scheme.

The Court did not consider the remarks to the jury about delivering the money in wheelbarrows. We do not consider that there are sufficient grounds, established by the Court of Appeal or otherwise, upon which the Secretary of State could be satisfied that the comments either contributed to the conviction in this case or were of a nature constituting exceptional circumstances for the purpose of the ex-gratia compensation scheme. As you may know, weighing the evidence is usually the function of the courts and, where applicants are acquitted at trial, or on appeal, it is primarily the Courts’ conclusion to which we ordinarily turn when determining whether compensation is merited.”

In the light of the policy and of the authorities, it is in my view unarguable that the Secretary of State’s conclusion that these alleged errors whether viewed singularly or cumulatively did not amount to exceptional circumstances is irrational. In relation to the misdirection as to the nature of the required belief the trial judge was adopting and applying one decision of the Court of Appeal rather than another. The omission to remind the jury not to speculate, even if Counsel invites the judge to warn the jury about not speculating, could not arguably come anywhere near the kind of exceptional circumstances with which this statement is concerned.

It is further submitted on behalf of Elizabeth Forsyth that the Secretary of State acted irrationally in deciding that the errors found against prosecuting counsel were not an exceptional circumstance. In the letter of 1 March 2002 a number of grounds of alleged serious default by the prosecution are set out. It is submitted that there was a failure to disclose two witness statements and that the prosecution committed serious default by continuing the prosecution against the claimant in the absence of Asil Nadir and having decided “to release from all criminal responsibility the Group Chief Accountant”. Although the Court of Appeal said that it was “a strange decision to press home the prosecution” against the claimant, “a decision to do so is the prerogative of the CPS and does not in our judgment itself amount to an abuse of process.”

It is also said that the prosecution committed serious default by failing to correct “the mistaken view taken by the trial judge” of the provisions relating to evidence by video link and in failing to correct the error of the trial judge regarding his misdirection on knowing or believing. Serious defaults are alleged about lira currency and focussing the jury’s attention on the absence of a witness. A summary of these allegations are to be found in the Defendant’s letter of 31 October 2002.

As far as non-disclosure is concerned, the defendant wrote that if there was non-disclosure it did not amount to serious default. As to continuing to prosecute whilst not prosecuting the Group Chief Accountant, the defendant wrote that if there was a default it was not a serious default and did not lead to a wrongful conviction. The defendant rejected the notion that failing to correct the judge about regarding his direction on “knowing or believing” did not amount to a serious default and the defendant noted that a default had to be seen in the context of proceedings in which the claimant was represented. The defendant reached the same conclusion about the issue of the missing witness. The defendant concluded that the alleged errors did not amount “to other exceptional circumstances for the purpose of the second limb”.

In my view it is impossible to categorise these conclusions as arguably irrational.

Peter Dimond was the pilot of the aircraft in which Asil Nadir had left the United Kingdom in 1993. On 3 August 1998 at the Central Criminal Court the claimant was convicted on an indictment which charged him with doing acts tending and intended to pervert the course of public justice. The particulars were that he made arrangements for and gave assistance in the flight from the United Kingdom of Asil Nadir, knowing that Asil Nadir was due to stand trial on criminal charges and that Asil Nadir was prohibited by reason of his bail conditions from leaving the United Kingdom.

Asil Nadir had been granted bail on 17 December 1998 by the Bow Street Magistrates Court to continue until such time as he surrendered to the custody of the Crown Court. One of the bail conditions involved a surety named Mr Guney signing a recognisance binding himself to procure the surrender of Asil Nadir to the custody of the court in the sum of £1 million.

On 22 June 1992 before Tucker J Asil Nadir was arraigned and pleaded not guilty. Both counsel for the Crown and counsel for the defence agreed that it was unnecessary for Asil Nadir to surrender to the custody of the Court. Both they and the judge thought that the existing arrangements would continue. Mr Guney was not present and was not asked to give any further recognisance. In the light of the later decision of the House of Lords in R v Central Criminal Court ex parte Guney [1996] AC 616 counsel, judge, the defendant and Mr Guney were all labouring under a misapprehension as to the legal effect of what took place on 22 June. Notwithstanding what anyone may have thought, the effect of what happened on that day was that Asil Nadir surrendered to the custody of the court with the result, so the House of Lords held, that what Mr Guney had bound himself to do he had done. He was thus no longer liable under his recognisance unless, which was not the case, it was renewed.

The House of Lords did not have to address the question as to what Mr Nadir’s position was when he left court at the conclusion of that hearing on June 22. On 17 December 1992 there was a further hearing at which an application was made by leading counsel for a variation of what were believed to be the bail conditions to which Asil Nadir was subject. The judge rejected that application. At the hearing in December Mr Nadir pleaded to various new counts in the indictment and as the Court of Appeal found “that process amounted to a re-arraignment” (page 5). The trial date was set for the 13 September 1993 but on 4 May Asil Nadir left the country with the assistance of the claimant Mr Dimond.

In the words of the Court of Appeal, 15 January 1999: (page 6)

“Viewing the matter in broad common sense terms, one can see an obvious merits basis upon which it could be said that the appellant had committed an offence, since it appears that he clearly understood that Mr Nadir was not permitted by the court to leave this country, but nonetheless he took it upon himself to facilitate that result. Whatever his understanding of the technicalities, he made no bones at his trial about the fact that he did know that Mr Nadir’s passport remained in the hands of the authorities and that the court was not willing that he should leave the jurisdiction.”

The Court of Appeal examined the various possibilities and concluded that it was clear that Asil Nadir was not on bail after his arraignment in June nor after his re-arraignment in December. The Court noted that the indictment as framed made express reference to the particulars of offence to the bail conditions (page 10) and that this ingredient of the offence had not been proved. It was submitted that the Court should substitute an alternative conviction for attempting to do what was alleged. It was accepted that such an alternative conviction could have been made without amendment of the indictment. The Court then noted that counsel for Mr Dimond, Mr Martin-Sperry, had submitted at trial that Asil Nadir was not in fact on bail. The judge had disagreed with that conclusion, wrongfully as the Court of Appeal found. The Court also noted that Mr Martin-Sperry had sought leave to address the jury concerning the issue of bail conditions and that the judge had ruled that he could not do so. In his summing up the trial judge made it clear to the jury as a matter of law that Asil Nadir was on bail. The Court continued (page 13):

“It seems to us that the prosecution having nailed their colours very firmly to the mast, it would at this stage by unfair to attempt to redraw the indictment. We note both that no such application was made or suggestion advanced at the first hearing of the appeal, and also that counsel for the Crown has advanced this possibility with very muted vigour today.”

The Court noted also that it was not at all clear how one would “re-read the indictment in terms of an attempted offence”. The Court also noted that Mr Martin-Sperry had advanced other arguments before the Court at the earlier hearing and that the Court did not think it necessary to consider these in detail: “We observe that they would in our judgment stand a poor chance of succeeding on their own.” The Court went on to say:

“As it is, the appellant may well consider himself in the event somewhat fortunate, but in our judgment the conviction is as it stands unsafe. We do not think it right to substitute an alternative conviction.”

I turn to the submission made by Dechert on behalf of the claimant to the defendant. It was submitted in a letter dated 4 October 2002 that the Court of Appeal might have wished to criticise the trial judge but may have considered it inappropriate to do so to avoid saying anything that could prejudice Mr Nadir from having a fair trial. The letter continues:

“Mr Dimond submits that there were serious judicial errors because the trial judge blinded himself to the obvious and made a fundamental error in wrongly ruling that the effect of the December 1992 “Bail Variation Hearing” was to re-impose on Nadir limited conditions of bail. Even if the trial judge was acting from the best of motives (which has to be open to question) his approach was so mistaken that his approach amounted to exceptional judicial error. In the alternative, Mr Dimond submits that there was serious judicial misconduct in that in order to secure his conviction, the trial judge in an attempt to circumvent the ruling in ex parte Guney … knowingly devised a pure fiction that the effect of Mr Nadir’s application to vary his bail at the hearing on 19 December was to re-impose on Nadir limited conditions of bail restricting his movement from that date.”

The submissions rely on words used by the amicus curiae, Mr Perry, who described the approach of the trial judge as artificial. In fact what Mr Perry said in paragraph 6.5 is:

“It would be artificial to suggest that at the hearing on 17 December 1992 the learned judge was granting bail in accordance with the Bail Act”.

The submissions continue after dealing with the issue of sentence:

“Mr Dimond submits that the error/conduct of the judge was serious and fell well short of expected standards of judicial competency generally and particularly by a very experienced senior judge in a very important case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly in conducting an important trial and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case.”

Mr Dimond also relied on a witness statement from his counsel Mr David Martin-Sperry who gave his opinion that “the trial judge employed an artificial device to found his ruling.”

During the course of argument Mr Bowen accepted, as indeed he had to, that the issues which the trial judge and subsequently the Court of Appeal had to resolve were not dealt with in the case of Guney. In supplemental submissions it was submitted that the error was a serious one in substance and effect, that the trial judge had resorted to the creation of an artificial fiction, namely: “the artifice of a re-grant of bail on the December 1992 hearing in order to enable a conviction to be achieved.”

The last paragraph reads above someone’s initial:

“… The trial judge strove so hard to create a fiction and a degree of artificiality to ensure a conviction, which, from the severity of the sentence, it would appear, that he considered to be well merited.”

I turn now to the defendant’s response (core bundle, 12-13). The letter sets out the three grounds of alleged serious judicial error, the ruling that Asil Nadir was on bail, the further ruling that whether he was on bail was a matter of law. The third related to sentence.

As to the second, the defendant wrote that alleged error would not have resulted in the wrongful conviction nor can it said to be of an exceptional nature. That conclusion is not arguably irrational. Indeed I would have grave doubts as to whether it is an error at all. Once the trial judge had made the ruling then it would seem to me to follow that counsel would be precluded from addressing the jury about it.

Although the letter does not specifically deal with it, it seems clear that the defendant rejected the submission that the judge had knowingly made a false ruling. If either the prosecution or the judge had concluded that Asil Nadir was not on bail (in accordance with the submissions of Mr Martin-Sperry), then the charge left to the jury would have been one of attempt, to which it is difficult to see that the claimant would have had an answer.

The only remaining issue in the Dimond case is whether or not the Secretary of State arguably acted irrationally in deciding that the judge’s erroneous legal ruling that the Asil Nadir was on bail, was not an exceptional circumstance. In my view he did not.

It follows that these three applications for permission fail.

All three applications have consumed a great deal of time and money (and a mass of paper). They have led to disclosure of the written practice of the defendant’s team which considers applications for compensation. The scheme is now nearly 25 years’ old and has been the subject of a number of judicial and administrative decisions. If these three cases are typical of many other cases then a great deal of time and money is being spent in the search for compensation. Having raised this matter with Mr Keith, I invite the Secretary of State to consider whether the time is now ripe for the scheme to be simplified or clarified. To the extent to which the ex gratia scheme envisages compensation in certain circumstances if there has been “complete exoneration”, even if no serious default, any clarification of the scheme might more simply address the issue of what is “complete exoneration” and in what circumstances may compensation be payable. If compensation is to be payable in certain circumstances for “serious default” leading to a wrongful conviction, any clarification of the scheme might more simply address the issue of what is serious default, what are the circumstances, what is a wrongful conviction and what is the necessary causal relationship between the default and the wrongful conviction.