Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
and
MR JUSTICE STANLEY BURNTON
MARY WESTLAKE
(CLAIMANT)
-v-
CRIMINAL CASES REVIEW COMMISSION
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR EDWARD FITZGERALD QC AND MISS H WILLIAMS (instructed by Messrs Wansbroughs, Wiltshire) appeared on behalf of the CLAIMANT
MISS BEVERLEY LAING QC (instructed by the Criminal Cases Review Commission) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE STANLEY BURNTON:
Introduction
In these proceedings Mary Westlake, the half sister of Timothy Evans, seeks judicial review of the refusal of the Criminal Cases Review Commission to refer his conviction for the murder of his daughter Geraldine to the Court of Appeal pursuant to its powers under the Criminal Appeal Act 1995.
History.
Timothy Evans was convicted of the murder of his daughter and sentenced to death on 13th January 1950. A count relating to the murder of his wife Beryl was ordered to lie on the file. His appeal to the Court of Appeal was dismissed and he was executed on 9th March 1950.
The conviction of Timothy Evans is now recognised to have been one of the most notorious, if not the most notorious, miscarriages of justice. He lived at 10 Rillington Place. His downstairs neighbour was John Reginald Christie, who was the central prosecution witness at the trial of Timothy Evans. Christie was a serial killer who later confessed to killing Mr Evans' wife, Beryl. The bodies of six women whom Christie murdered were later found at 10 Rillington Place. The manner in which he murdered other women and concealed their bodies fitted the murder of Beryl Evans.
The prosecution case against Timothy Evans was that the murder of his daughter and that of his wife must have been committed by the same person as part of a single transaction or series of events. The case was put by Mr Christmas Humphreys QC on behalf of the Crown at the beginning of the trial of Timothy Evans, in the absence of the jury, as follows:
"My Lord, there are two indictments in this case against this man, one for murdering his wife and the other for murdering his child two days later in exactly the same circumstances by strangulation, and putting the bodies in the same place. There is one set of depositions, and those depositions include the facts which concern the wife and the facts concerning the child. I have chosen to proceed upon the second and later indictment for the murder of the child, and, in my submission, all the evidence concerning the murder of the wife is admissible on the one ground that it is part of the same transaction."
On that basis, although the count of murdering Beryl was not before the jury in accordance with the then criminal practice, evidence relating to her murder was put before them with the leave of the judge as a result of the submissions to which I have just referred, it being alleged that Evans committed both murders.
The discovery of Christie's serial murders so similar to the murder of Beryl Evans of itself removed the foundation from the conviction of Timothy Evans for the murder of his daughter.
Mr Evans had confessed to the murder of his wife and his child. He was an impressionable man of below normal intelligence. His second confession, on which the prosecution at his trial relied, was subsequently retracted. The police had taken statements from workmen who had carried out work on the wash house at 10 Rillington Place in which the bodies of Beryl and Geraldine had been found. Those statements, if accurate, showed that Mr Evans could not have hidden the bodies of his wife and daughter on the dates stated in his confession. They therefore cast considerable doubt on the reliability of his confession. Nonetheless, the statements of those workmen were not disclosed to the defence or placed before the jury at the trial. Instead, two at least of the workmen were persuaded by the police to make new statements which were not expressly inconsistent with Mr Evans' confession. The new statements were not disclosed either.
The discovery that Christie was a serial murderer and his admissions that he had killed Beryl Evans led, following his conviction in 1953, to an enquiry by Mr Scott-Henderson QC into the reliability of Mr Evans' conviction. Mr Scott-Henderson QC concluded that there had been no miscarriage of justice in relation to the conviction and execution of Timothy Evans. His report did not allay public concerns as to the justice of the conviction. Sir Ludovic Kennedy's book "10 Rillington Place" published in 1961 was a convincing destruction of the case against Timothy Evans and of the conclusions of the Scott-Henderson report.
There was continuing public agitation in relation to the Timothy Evans' case. As a result, between November 1965 and January 1966, Mr Justice Brabin conducted a fresh enquiry into the murders of Beryl and Geraldine Evans. His report was published on 12th October 1966. He concluded that on the balance of probabilities Timothy Evans did not kill his daughter, of whose murder he had been convicted, but that he probably did kill his wife, of whose murder he had not been convicted. The Brabin report was inconsistent with the Scott-Henderson report. Its conclusion was inconsistent with the prosecution case that both murders had been committed by the same person.
It was then the general rule that the Home Secretary would not recommend the grant of a free pardon unless he was satisfied that the person concerned had "clean hands", that is that not only was he innocent of the offence of which he was convicted, but also that he did not in fact commit any other offence or have any intention of doing so. I refer to paragraph 197 of the Home Office memorandum on the Royal Prerogative of Mercy. It was similarly accepted that the Home Secretary would not recommend the grant of a free pardon unless he was satisfied of the innocence of the applicant: see paragraph 176. On the basis of the Brabin report, it might have been said that neither of these conditions was satisfied in the case of Timothy Evans.
Nonetheless, on 18th October 1966 a free pardon was granted in respect of Timothy Evans' conviction for the murder of his daughter. The Home Secretary, Mr Roy Jenkins, announcing the pardon in the House of Commons, said this:
"I am sure the House would wish me to express our thanks to Mr Justice Brabin for the painstaking and thorough way in which he conducted the inquiry into this case and for the comprehensive nature of his Report. Mr Justice Brabin's conclusion, as the House will be aware, is that it is now impossible to establish the truth beyond doubt but that it is more probable than not that Evans did not kill his daughter, for whose murder he was tried, convicted and executed. In all the circumstances, I do not think it would be right to allow Evans's conviction to stand. I have, therefore, decided that the proper course is to recommend to Her Majesty that She should grant a Free Pardon, and I am glad to be able to tell the House that the Queen has approved my recommendation and that the Free Pardon was signed this morning.
This case has no precedent and will, I hope and believe, have no successor."
There was a question from Mr John Hall MP:
"Is it not a fact that although the Report indicates that in all probability Evans was not responsible for his daughter's death, it is nevertheless probable that he was responsible for his wife's death?"
The extract from Hansard shows that that question was met by Honorary members shouting "No". Mr Jenkins replied:
"Yes, but I am also aware that Mr Justice Brabin said that there were certain circumstances which, in his view, would have meant that a jury could not have regarded this as beyond reasonable doubt, and, furthermore, I have to deal with the case in which Evans was tried, convicted and executed."
Paragraph 168 of the Home Office memorandum, to which I have referred, says this:
"There is no doubt that for practical purposes a grant of a free pardon is quite sufficient both to relieve the individual who receives it from the practical consequences of conviction and to establish his innocence and therefore restore his reputation."
By letter dated 3rd August 2000 the Home Office informed the solicitors acting for Mr Evans' personal representatives that the Home Secretary had decided to make, without admission of liability, an ex-gratia payment of compensation to them. The amount of compensation to be paid was assessed by Lord Brennan QC, as independent assessor. On the basis of Mr Fitzgerald's cogent written submissions dated 27th January 2003, Lord Brennan concluded as follows:
The conviction and execution of Timothy Evans for the murder of his child was wrongful and a miscarriage of justice.
There is no evidence to implicate Timothy Evans in the murder of his wife. She was most probably murdered by Christie."
In paragraph 6 of his conclusions Lord Brennan said this:
"I have considered the history. I have concluded that no reliance can be placed on the Scott Henderson report in particular because of the later pardon. I do not accept the conclusions of the Brabin report that Evans was probably not guilty of his child's murder but probably was guilty of his wife's murder. Having regard to Christie's confession and convictions I consider that the Brabin report conclusion should be rejected."
As a result of Lord Brennan's decision, six figure sums have been paid to Mr Evans' sister and half-sister. The amount of compensation recognised the profound effect of Timothy Evans' wrongful conviction and execution on the lives and health of his sister and half-sister.
The decision of the Commission
The application to the Criminal Cases Review Commission to refer to the Court of Appeal Timothy Evans' conviction for the murder of his daughter was made by solicitors then acting for Mr Evans' sister by letter dated 26th August 2003. The application has been taken over by the claimant, Mr Evans' half-sister, but nothing turns on that.
On 23rd October 2003 the Commission decided on a provisional basis not to refer the conviction. It provided provisional reasons for that decision, stating that it accepted that the preconditions for referral contained in section 13 of the Criminal Appeal Act 1995 were met, and that there was a real possibility that the Court of Appeal would decide that Mr Evans' sister had a substantial emotional interest in the determination of the appeal if a reference were made, sufficient to qualify her as an approved person for the purposes of the Criminal Appeal Act 1968. The Commission stated that it was nonetheless minded not to exercise its discretion to make the referral having regard to its conclusion that the quashing of the conviction would not be of substantial benefit as against the costs and resources that would be involved in a referral. Submissions were then made to the Commission seeking a different decision.
On 17th March 2004 the Case Committee of the Commission dealing with the matter met and decided to confirm the provisional decision. Its minutes record the following, under the heading "The Commission's Discretion":
"The committee noted the following factors in considering whether the Commission should use their discretion not to refer the case:
• Mr Evans was granted a free royal pardon in 1966, and has therefore already been publicly exonerated. From this the Commission is entitled to come to the conclusion that public confidence in the criminal justice system has already been restored in relation to this case.
• Mr Evans' family have already embarked on a successful compensation process, and the amount they have claimed, and partly received, includes an element to address their emotional distress.
• There would be no further financial gain in referring the case.
• A referral and subsequent quashing of the conviction would not remove the slur of the Brabin report as regards his likely involvement in the murder of his wife, as Mr Evans was convicted of murdering only his daughter. The Appeal Court would have no power to deal in any way with the findings of the Brabin report into the allegation that he murdered his wife.
• In balancing the private interest against the public interest, it would not be a reasonable decision to refer the case, taking into account the time and cost of an appeal."
A written statement of the reasons of the Commission was produced dated 23rd March 2004. Under the heading "The discretion not to refer" it stated as follows:
"As the Court of Appeal (Clark [2001] EWCA Crim. 884) and the Divisional Court (R (Saxon) v CCRC [2001] EWHC Admin 505) have acknowledged, the Commission has a discretion whether or not to refer a case even where the statutory conditions for referral are satisfied. The Commission will exercise its discretion in accordance with the principles of public law: any decision not to refer a case where there is a real possibility that the Court of Appeal would not uphold the conviction were a referral to be made must be fair and reasonable.
In deciding whether to exercise its discretion not to refer this case the Commission has considered the likely benefit to the applicant of a successful referral together with the wider public interest including confidence in the criminal justice system and it has weighed the two in the balance where they appear to conflict. Mrs Ashby contends that the Commission should refer Mr Evans' conviction for the murder of Geraldine to the Court of Appeal 'in order to correct the slur on his character'. However Mr Evans has been granted a free pardon. That has been the position for the last 37 years. It is acknowledged that this does not formerly expunge his conviction for the murder of Geraldine, but the Commission is satisfied that it is quite sufficient to establish his innocence and therefore restore his reputation. Mr Evans' case is, as the Home Office has already acknowledged, unique. It has been debated on a number of occasions in Parliament and received nationwide recognition as a miscarriage of justice as a result of extensive media coverage, including a book and film both with the title '10 Rillington Place'. In the Commission's view the reality of the situation is that no slur remains on Mr Evans' character or on the name of his family in relation to his conviction for the murder of Geraldine."
It referred to the decision of the assessor, Lord Brennan, stating:
"The Commission notes that the conclusions of the Assessor are entirely favourable for Mrs Ashby, unlike those in the Brabin report, and that interim awards totalling £250,000 have been paid to Mrs Ashby and Mrs Westlake. The last payment of £100,000 was made on 15th July 2002, and the Commission takes the view that the Assessor's findings and the payment of this compensation must have brought further comfort to Mrs Ashby..."
In relation to the murder of Mrs Evans, the Commissioner said this:
"On behalf of Mrs Ashby it is further claimed that referral is necessary 'to ensure the perceived antecedents and conduct of Mr Evans (ie his involvement in Mrs Evans' death) do not adversely affect the amount of his family's award of compensation'.
Mr Evans was not convicted of murdering Mrs Evans so there is no conviction that the Commission could refer and no conviction that the Court of Appeal could quash. The Commission has no jurisdiction in this aspect of the matter, and there is nothing the Commission can do to displace the conclusion of the Brabin enquiry in respect of Mrs Evans."
The Commission summarised its conclusions as follows:
"As made clear earlier, in the Commission's opinion the referral of a conviction, the effects of which have already been pardoned and which is already notorious as a gross miscarriage of justice, is unmerited for the reasons stated. Furthermore, the integrity of the criminal justice system and the need to ensure public confidence in it has already been sufficiently vindicated by the grant of a free pardon and the publicity attendant thereon. In the view of the Commission a reference in the circumstances would not justify the resources and costs that would inevitably be involved. Although the Commission finds there to be a real possibility that the Court of Appeal would quash the conviction if the case were to be referred, the Commission has exercised its discretion not to do so."
These proceedings were begun on 11th June 2004.
The grounds for judicial review.
Mr Fitzgerald accepts that the decision of the Commission having been made in the exercise of the discretion undoubtedly conferred on it by section 9 of the Criminal Appeals Act 1995, this court can interfere with that decision only if it is shown that the Commission erred in law or made findings or arrived at a conclusion that no reasonable authority correctly applying the law could have made or arrived at. It is not for this court to agree or to disagree with the Commission's decision. This court is a court of review, not a court of appeal, and its jurisdiction is limited to determining whether the decision was lawful, and only if it is shown to have been unlawful on familiar public law grounds, to grant relief if it is appropriate to do so. Sections 9(1) and (2) and section 13 of the 1995 Act are as follows. Section 9, headed "Cases dealt with on indictment in England and Wales":
Where a person has been convicted of an offence on indictment in England and Wales, the Commission-
may at any time refer the conviction to the Court of Appeal, and
(b (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence...
A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1968 Act against the conviction."
Section 13, headed "Conditions for making of references":
A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless-
the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
the Commission so consider-
in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or in any appeal or application for leave to appeal against it, or
in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."
In the case of a posthumous appeal there is a further requirement for an effective appeal, namely that there is a person who may be approved by the Court of Appeal under section 44 of the Criminal Appeals Act 1968 to begin the appeal and to conduct it. The Commission accepts that Timothy Evans' half-sister might be approved by the Court of Appeal under that section, and it is unnecessary to refer to it further.
It can be seen that section 13 of the 1995 Act, as its heading suggests, lays down preconditions for the exercise by the Commission of its discretion to refer. In R v CCRC ex parte Pearson [2000] 1 Cr.App.R 141, the Divisional Court was concerned with the precondition contained in section 13(1)(a) of the 1995 Act and the exercise of the Commission's discretion. Lord Bingham, CJ, said at page 149:
"The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else."
At page 169 Lord Bingham, CJ, said this:
"We are not sitting as a court of appeal but as a court of review, and it is no part of our duty to decide whether the Commission's conclusion was right or wrong but only whether it was lawful or unlawful. We are clearly of the opinion that it was not irrational. Nor was it vitiated by legal misdirection. That does not mean that we would unreservedly endorse every legal observation the Commission made ... It is not, however, in our judgment appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere."
In our judgment these observations are equally applicable to the exercise by the Commission of its discretion conferred by section 9. Mr Fitzgerald accepts, as he must, that the cost to the public and the resources of the court involved in an appeal consequent on a referral are relevant considerations to be taken into account by the Commission in exercising is discretion. The principal ground for judicial review argued by Mr Fitzgerald is that the Commission misunderstood the nature of its discretion. He submitted that the discretion conferred on the Commission by section 9 of the 1995 Act is "at best a residual one" and that once the preconditions laid down in the Act are satisfied there is "a presumption in favour of referral...and a discretionary decision not to refer can only legitimately be made if there are compelling considerations pointing to a clear public interest against referring such a conviction". In other words, once the precondition set out in section 13 is satisfied, there is a presumption in favour of referral.
In my judgment the difficulty with Mr Fitzgerald's submission is that it finds no support to the wording of the Act. To the contrary, it involves writing in words that are not present, or redrafting section 9. In other words, it is inconsistent with the wording of the Act. As was said by Rose LJ, the Vice President of the Court of Appeal, Criminal Division, giving judgment in the case of Clark [2001] EWCA Crim. 884, at paragraph 3:
" ... that discretion must be used reasonably and fairly."
It must be exercised for the purposes for which it has been conferred. The Commission must take into account relevant considerations and ignore the irrelevant. But if it complies with these requirements its exercise of its discretion cannot be impeached.
Doubtless when a convicted person is alive and the requirements of a reference set out in section 13 are satisfied, and in particular "the Commission consider that there is a real possibility that the conviction and verdict, finding or sentence would not be upheld if a reference were to be made", fairness normally requires a referral. In such circumstances the discretion may be aptly described as residual, as it was by Lord Woolf, LCJ, in R (Hunt) v Criminal Cases Review Commission [2001] 2 Cr.App.R (S) 76 at paragraph 3. In those circumstances the cost and resources involved in an appeal may be a less important consideration. Even in such cases, however, there is a real discretion. The Commission may for example refuse to refer where the applicant was convicted of a number of offences and only one of those convictions is arguably unsafe and its quashing would make insignificant difference to the applicant; or where it is thought that the Court of Appeal would substitute a conviction for a different but similarly serious offence for that in issue.
But different considerations apply when the person is deceased; and the dictates of fairness are diminished further when the conviction is historic, as this conviction is. It is for that reason that Lord Woolf LCJ said in the unsuccessful appeal in Hanratty [2002] EWCA Crim. 1141, [2002] 3 All.ER 534 at paragraph 214:
"We do not consider it would be right to attempt to judge the Commission with the benefit of hindsight in relation to this case. We do however emphasise that there have to be exceptional circumstances to justify incurring the expenditure of resources on this scale, including those of this court, on a case of this age."
This difference of approach does not result from a different rule being applied in posthumous cases. It is because the requirements of fairness and justice are different when the convicted person is dead. I do not think that the observation in the sentence of this citation from Lord Woolf's judgment in Hanratty was intended to be limited to unsuccessful appeals, as indeed is demonstrated by the first sentence of the citation.
I have carefully considered what was said by the Court of Appeal (Criminal Division) in Ellis [2003] EWCA Crim. 3556 at paragraph 90:
"We would wish to make one further observation. We have to question whether this exercise of considering an appeal so long after the event when Mrs Ellis herself had consciously and deliberately chosen not to appeal at the time is a sensible use of the limited resources of the Court of Appeal. On any view, Mrs Ellis had committed a serious criminal offence. This case is, therefore, quite different from a case like Hanratty where the issue was whether a wholly innocent person had been convicted of murder. A wrong on that scale, if it had occurred, might even today be a matter for general public concern, but in this case there was no question that Mrs Ellis was other than the killer and the only issue was the precise crime of which she was guilty. If we had not been obliged to consider her case we would perhaps in the time available have dealt with eight to twelve other cases, the majority of which would have involved people who were said to be wrongly in custody. The Court of Appeal's work load is an ever-increasing one and recent legislation will add substantially to that load. Parliament may wish to consider whether going back many years into history to re-examine a case of this kind is a use that ought to be made of the limited resources that are available. The exercise of the CCRC's discretion in deciding, whether to refer cases is one that is a frequent source of challenge by way of Judicial Review and it may be that an express power to consider factors of this kind would enable the CCRC to take into account more readily the public interest in making its decision."
I do not think that the court was there indicating that an amendment to the 1995 Act was required in order for the Commission to take into account the costs and resources of an appeal. Indeed, as already indicated, Mr Fitzgerald accepts that costs and resources consequential on a referral are a relevant factor to be taken into account by the Commission in deciding whether or not to exercise its statutory discretion.
The reference by the Court of Appeal in Ellis to the resources involved in the appeal are nonetheless relevant to the present case. Since its decision in the present case the Commission has amended its policy relating to the exercise of discretion on posthumous cases. The lawfulness of that statement of policy does not fall for decision in the present case. I have nonetheless observed that it appears to be a reasonable and sensible statement of the relevant factors, although I would question the use in paragraph 5 of the expression "tangible benefit" where it is clearly intended to refer to benefits which are also intangible although significant.
The second ground of challenge advanced by Mr Fitzgerald is that the Commission erred in law or reached an unreasonable and perverse conclusion in deciding that the quashing of Mr Evans' conviction would have no tangible benefit. We were referred to the decision of the Court of Appeal in R v Foster [1985] QB 115. However, it is clear that the Commission correctly understood and applied the law as determined in Foster. In its statement of reasons at paragraph 84 the Commission acknowledged that the free pardon did not "formally expunge his conviction or the murder of Geraldine." It went on to say at paragraph 84:
"... the Commission is satisfied that [the pardon] is quite sufficient to establish [Mr Evans'] innocence and therefore restore his reputation. Mr Evans' case is, as the Home Office has already acknowledged, unique. It has been debated on a number of occasions in Parliament and received nationwide recognition as a miscarriage of justice as a result of extensive media coverage, including a book and film both with the title '10 Rillington Place'. In the Commission's view the reality of the situation is that no slur remains on Mr Evans' character or on the name of his family in relation to the conviction for the murder of Geraldine."
There is, in my judgment, no basis for arguing that those statements by the Commission were perverse or unreasonable. To the contrary, they appear to me to be manifestly correct.
That part of the reasoning of the Commission has been supplemented by the witness statement of John Weeden, the Chairman of the Case Committee which made the decision not to refer Mr Evans' conviction. Having accepted that the quashing of the conviction would bring emotional solace to Mr Evans' sister and half-sister, he said:
"We accepted that the conviction was unsafe and that there is always a public interest in quashing an unsafe conviction, particularly in a case as serious as this one. However, we had to weigh this factor against the fact that Mr Evans' case had already been officially investigated and he had been given a Royal pardon. R v Foster ... establishes that the legal consequence of a pardon is that it does not quash a conviction, but rather pardons the effect of such conviction. This principle respects the constitutional distinction between the roles of the monarch and the court. However, it has long been recognised that, for practical purposes, the effect of a Royal pardon is to establish the innocence of the convicted person and restore his reputation. This principle was well established as early as the time of Lord Chief Justice Hale as to which see 2 Hale Pleas of the Crown at page 278. Hawkins, Pleas of the Crown volume 2 section 48 states that
'the pardon does so far clear the party from the infamy and all other consequences of the crime that he may not only have an action for a scandal in calling him a traitor or felon after the time of the pardon but may be a good witness.'
From this it follows that so far is the person's good character established by the grant of a Royal pardon that he may bring an action for defamation against one who asserts the contrary. We considered these authorities and we had before us a summary of their effect as contained in the judgment in Hay v Justices of the Tower Division of London [1890] 24 QBD 461 which was in turn referred to in R v Foster, noted above.
Mr Evans' case is very well-known. We considered that the generally held view (among family, commentators on the case, and members of the public) was that Mr Evans' conviction and execution had been a miscarriage of justice, and that his innocence was demonstrated by the grant to him of a Royal pardon. In these exceptional circumstances, we considered that the formal quashing of the conviction was not required to establish his innocence and clear his name in the eyes of the public."
In my judgment there is no basis on which it could be said that the statements made by Mr Weeden were unreasonable or otherwise unlawful and it has not been seriously argued that they were. Moreover, as Mr Justice Collins pointed out during argument, one must have regard to the circumstances in which the free pardon was granted in the present case. Mr Evans had been executed. There was no question of his sentence or penalty being remitted. The only possible purpose of the pardon was to exonerate him of the conviction for the murder of his daughter.
Mr Fitzgerald made it clear that the object of the claimant in seeking a referral is to obtain a public vindication by the court of Mr Evans' innocence of both the murder of his daughter and that of his wife. While I fully sympathise with this objective, it has to be considered in the light of the powers of the Criminal Division of the Court of Appeal, under the Criminal Appeal Act 1968, and in particular under section 2. Section 2 provides that subject to the provisions of the Act the Court of Appeal:
shall allow an appeal against conviction if they think that the conviction is unsafe; and
shall dismiss such an appeal in any other case."
It is no part of the duty of the Court of Appeal on a successful criminal appeal to declare the innocence of the appellant. It is sufficient for it to find that the conviction is unsafe, for example because the jury did not have material evidence before it which might have led to a different verdict. In the present case the Court of Appeal could reach the conclusion that Mr Evans' conviction was unsafe solely on the basis of the failure to disclose to the jury and to the defence the workmen's statements. A conclusion that the conviction was merely unsafe would be of no material benefit. In order for the court to go further, to reach a finding of innocence, it would have to decide to go beyond its duty and moreover to conduct a more substantial investigation of the evidence which would involve greater cost and resources.
In relation to the murder of Beryl Evans in its statement the reasons the Commission said this:
"Mr Evans was not convicted of murdering Mrs Evans so there is no conviction that the Commission could refer and no conviction that the Court of Appeal could quash. The Commission has no jurisdiction in this aspect of the matter, and there is nothing the Commission can do to displace the conclusion of the Brabin enquiry in respect of Mrs Evans."
Mr Weeden supplemented this paragraph of the written reasons in his witness statement:
"As regards the charge alleging the murder of Mrs Evans, we concluded that, as Mr Evans was not convicted of murdering Mrs Evans, there was no conviction the Court of Appeal could quash and the Commission had no jurisdiction in this aspect of the matter. Counsel's further submissions on behalf of Mrs Ashby suggested that the Court of Appeal could reverse the implicit finding that Mr Evans killed his wife in the course of quashing the conviction of his daughter's murder. Since we had already concluded that neither the Commission nor the Court of Appeal had jurisdiction in respect of Mrs Evans' murder, it followed, in our view, that it would be wrong to refer Mr Evans' conviction for the murder of his daughter only in the hope that the Court of Appeal would pronounce by way of incidental comment upon the outstanding count for the murder of his wife."
Mr Fitzgerald criticises that conclusion. He accepts that neither the Commission nor the Court of Appeal has any jurisdiction in relation to Mrs Evans' murder. He submitted that the Commission had misdirected itself in considering, as stated in the minutes of its meeting of 23rd October 2003, that the Court of Appeal would have no power to deal in any way with the findings of the Brabin report as to the allegation that Timothy Evans had killed his wife. He contended that since the prosecution at the trial had alleged, as I have mentioned, that the two murders were part of a single transaction, the Court of Appeal would be bound to consider both.
I do not accept these submissions. In my judgment the Commission was right to conclude that there was no more than a hope that the Court of Appeal would comment incidentally on the outstanding count for the murder of Mr Evans' wife. The Court of Appeal would have no jurisdiction in relation to the outstanding count and the Commission was correct therefore to state, as it did, that the Court of Appeal would have no power, by which it clearly meant legal power, to deal with it or the findings of the Brabin report relating to it. Accordingly, there is no basis for interfering with the decision of the Commission on this ground.
Conclusion.
I am happy to express my agreement with the conclusion of the Commission that Timothy Evans has been exonerated of the murders of his wife and child. It is recognised that he committed neither murder. The free pardon which he was granted was a formal vindication and when granted the only available vindication of the only murder of which he had been convicted. The Home Secretary did all he could. The subsequent payment of compensation to his surviving family assessed on the basis that he was wholly innocent makes the position abundantly clear. I hope that these public expressions in open court of his innocence will give some solace to his family. However, for the reasons given above I would dismiss this claim.
MR JUSTICE COLLINS: I agree. The Court of Appeal will quash a conviction if persuaded that it is unsafe, but it will not normally regard it as necessary to go further and pronounce upon the innocence of the person convicted. As my Lord has pointed out, the failure to disclose the material statements, coupled with the subsequent admissions made by the serial killer Christie, is quite sufficient to demonstrate that the conviction was unsafe. I am satisfied that the Court of Appeal, if this conviction were referred, would not regard it as necessary or desirable to give any detailed consideration to the question whether Timothy Evans murdered his wife. In the unique circumstances of this case, the free pardon was intended to and has made clear that Timothy Evans should be regarded as having been wrongly convicted. R v Foster [1985] QB 115 shows that the normal effect of a free pardon is to remove the penalties and punishments ensuing from a conviction, but not the conviction itself. But where the convicted person has been executed and there are no other penalties ensuing (as is the case here), it is unrealistic to regard the free pardon as having had that limited effect. It has been generally and correctly regarded as a recognition that Timothy Evans was wrongly convicted and that there was a serious miscarriage of justice. In any event, the material put before us persuades me that Timothy Evans should indeed be regarded as having been innocent of the charge of which he was convicted. Further, no jury could properly have convicted him of murdering his wife and I entirely agree that he must be regarded as innocent of that charge too.
Mr Fitzgerald accepted that an important reason for pursuing the referral was to try to establish Timothy Evans' innocence and that he would seek to persuade the Court of Appeal to consider all the evidence in relation to both his wife and his child. He recognised that if he should fail in that the claimant would gain very little from the quashing of the conviction. That underlines the reasonableness of the Commission's decision in this case. I am satisfied that the Commission correctly directed itself and that its policy, which it has now set out, in deciding how these cases should be considered and how the discretion should be exercised, is entirely correct. That is subject only to the use of the word "tangible".
For those reasons, in addition to those given by my Lord, I too would dismiss this claim.
MISS LAING: My Lord, I am obliged. I apply for my costs. The background to the application is that the Commission has had a severe budget cut this year and is in financial difficulties. Mrs Westlake has received a very substantial sum of compensation and therefore would be able to meet an order without suffering hardship.
MR JUSTICE COLLINS: Yes. Miss Laing, I assume that there is no schedule and it would be a question of detailed assessment if not agreed?
MISS LAING: My Lord, yes.
MR FITZGERALD: My Lord, may I first on behalf of the family, and his nephew David is present in court here today, express to this court the family's heartfelt thanks for the clear statement by this Court that Timothy Evans must be regarded as innocent both of the murder of his wife and of the murder of his child, despite the accusations that were brought originally. My Lord that is all I want to say on that matter, but David Westlake, who is here, has asked me to express the thanks of the family for that.
My Lord as to the costs issue, I accept that generally costs follow the event. I have just two submissions to make. First, it is slightly different in a public law case like this than in a criminal causal matter where leave has first been granted and where the hearing of the application has led to the clarification of the law, to the benefit of both the defendant and the claimant, that is to say the issue of the residual -- I am sorry -- the issue of the discretion.
MR JUSTICE COLLINS: The word "residual" we do not think added anything.
MR FITZGERALD: The existence of that particular discretion has not been the subject of a ruling by the court before, there have been certain obiter remarks, but clearly we would submit this is of benefit to the defendant for future cases and so there has been some benefit to the public interest by bringing these proceedings. And secondly, really, just for reasons of humanity, that the order for costs would be inappropriate.
MR JUSTICE COLLINS: We certainly, I suspect, would have been entirely sympathetic to a plea not to award costs if there had not been a substantial amount of compensation.
MR FITZGERALD: Certainly, my Lord. Those are the submissions I make. Obviously those are just two reasons I can put forward why the normal course should not follow in this case. My Lord, those are my submissions.
MR JUSTICE COLLINS: Mr Fitzgerald, as I indicated before, we are sympathetic to the human considerations which you put forward. On the other hand, we feel that the fact that a considerable sum of compensation has been awarded means that there will not be the hardship that there might otherwise have been in having to meet an award of costs and, as you know, the normal order will be that costs follow the event. Accordingly, we will say that this claim is dismissed with costs to the defendant, to be the subject of detailed assessment if not agreed.