Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LADY JUSTICE SHARP
-and-
MR JUSTICE BLAKE
Between:
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The Queen (on the application of (1) Robert Clark and (2) Christopher Drury) |
Claimants |
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- and - |
|
|
The Secretary of State for Justice |
Defendant |
(Transcript of the Handed Down Judgment of
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Mr Alun Jones QC and Ms Laura Herbert (instructed by Kaim Todner Solicitors Ltd) for the Claimant
Mr James Strachan QC and Mr Mathew Gullick (instructed by Government Legal Department) for the Defendant
Hearing date: 24 February 2015
Judgment
Lady Justice Sharp:
Introduction
Section 133 of the Criminal Justice Act 1988 (the CJA 1988) provides a statutory entitlement to compensation to persons whose criminal convictions have been reversed in out-of-time appeals or where they have been pardoned, on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice; and for the question as to whether there is a right to such compensation to be determined by the Secretary of State.
This claim for judicial review made on 2 June 2014, challenges the decisions made by the Secretary of State for Justice that the claimants, Robert Clark and Christopher Drury, are not entitled to compensation for a miscarriage of justice under section 133 of the CJA 1988. The decisions were communicated to the claimants in letters from the Secretary of State for Justice dated 13 March 2014; and were made under section 133 prior to its amendment by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act).
Permission to apply for judicial review was granted on 18 October 2014 by Collins J on a limited basis. The point he considered arguable was whether, after both cases had come to retrial, no conviction could properly have resulted, and accordingly there has been a miscarriage of justice. He said the paucity of reasons is not by itself an arguable ground. However the lack of proper reasons (if established) was material in considering whether the decision properly addressed the situation, and so was reasonable. He rejected a ground relying on delay as unarguable.
For the reasons given below, I would dismiss these claims.
Factual background
(i) The convictions
On 3 February 2000 after a 48 day second trial at the Central Criminal Court before Blofeld J, and a jury (the trial), the claimants were each convicted of offences of conspiracy to supply class B drugs and perverting the course of justice. Two co-accused, Lawson and Pearce were acquitted of similar charges. The first trial had begun on 4 October 1999 but the jury was discharged on the claimants’ application in November 1999.
The claimants and their co-accused were all police officers serving with the South East Regional Crime Squad (SERCS) at the time of the offences alleged against them. These offences concerned the alleged corrupt ‘recycling’ of drugs seized by the claimants and others in SERCS from suspects, to the financial benefit of officers in SERCS and others with whom they conspired.
Robert Clark was convicted on two ‘pairs’ of counts referred to as the ‘Nutley’ counts and the ‘Guildford John’ counts. The Nutley counts were count 1, conspiracy to supply class B drugs and count 2, perverting the course of justice. The Guildford John counts were count 10, conspiracy to supply class B drugs and count 11, perverting the course of justice. His total sentence was one of 12 years’ imprisonment. (Footnote: 1 )
Christopher Drury was also convicted on count 10, and one pair of counts referred to as the ‘Briar Cottage’ counts, counts 12 and 13, each a count of perverting the course of public justice. His total sentence was one of 11 years’ imprisonment. (Footnote: 2 )
Three other police officers serving with SERCS, Thomas Reynolds, Terance O’Connell and Thomas Kingston, were convicted of similar offences at a subsequent trial. (Footnote: 3 )
The safety of the claimants’ convictions has been considered on two occasions by the Court of Appeal, Criminal Division (CACD). First, in 2000, when their appeals against conviction were unsuccessful but their sentences were reduced: Clark’s sentence was reduced to 10 years imprisonment, and Drury’s to 8 years’ imprisonment: see R v Drury & Ors [2001] EWCA Crim 975 (Potter LJ, Hallett and Gibbs JJ), which I shall refer to as the first appeal.
Secondly, following a reference made to the CACD on 23 February 2009 by the Criminal Cases Review Commission (CCRC) under section 9 of the Criminal Appeal Act 1995: see R v & Clark & Anor [2010] EWCA Crim 2849 (Hooper LJ, Davis and Foskett JJ). Two references were made, one for each claimant, but they were to all intents and purposes the same, and I shall refer to them as the reference.
At the second appeal, the claimants’ convictions were quashed and a retrial ordered on counts 10 to 13 (the ‘Guildford John’ and ‘Briar Cottage’ counts).
On 19 October 2011, part way through a pre-trial hearing of applications to stay the retrial as an abuse before Bean J, at the Central Criminal Court, the prosecution decided to offer no evidence. It was following this, that the claimants’ claims for compensation under section 133 of the CJA 1988 were then made.
(ii) The trial, and the events which led up to it
The facts that follow are taken for the most part from the judgments of the CACD in the first and second appeals.
Two witnesses for the Crown against the claimants are significant to this narrative: Evelyn Fleckney and Neil Putnam.
Evelyn Fleckney had been a registered police informant between 1991 and October 1995. Robert Clark was her “handler” for most of that period. In October 1996, Fleckney was arrested for conspiracy to supply drugs, offences committed mainly in 1996, and on 2 March 1998, she was convicted and sentenced to a total of fifteen years imprisonment.
In April 1998, within weeks of her 15 year sentence being passed, Fleckney was removed from prison, and moved into police custody by officers of the Metropolitan Police, ostensibly under section 29 of the Criminal Justice Act 1961 which permitted the making of orders for the production at the request of the police. Over the next 6 months, whilst in police custody, in two covert police establishments both within police stations, she made detailed allegations to the Metropolitan Police Criminal Investigation Branch, CIB3, of crimes allegedly committed by her and Robert Clark, and other officers of SERCS. During this period she was allowed out under guard, for entertainment, shopping trips, welfare visits etc. During questioning, she was asked about her corrupt involvement with police officers. She admitted participation in a number of further offences, was indicted for those offences, and pleaded guilty to them on 3 November 1998.
In March 1996, after he had been arrested for supplying drugs, John Cudworth, a frequently convicted trafficker in drugs known as “Guildford John” asked the arresting officers if they were going to steal his drugs, as had happened on the last occasion he had been arrested. He was encouraged to make a formal complaint and did so, as a result of which Clark and Drury were interviewed and denied what he alleged. As his complaint was unsupported, no further action was taken. As a result of Fleckney’s allegations however, Cudworth was seen in prison and renewed the allegations against the claimants he had made in 1996, but which had not then been prosecuted.
Putnam was also a police officer in SERCS at the material time, and he too became an informant in the following circumstances.
Putnam’s home was searched in July 1998 under the direction of Detective Chief Superintendent (later Assistant Commissioner) Yates. Putnam had not been implicated by Fleckney, but was suspected of corrupt activities and suspended. Shortly after the search, he admitted two acts of corruption to officers in CIB3 which he said he had engaged in with the claimants and Lawson and Pierce. He was charged with these offences and remanded in custody to HMP Brixton. Shortly afterwards, he was moved into police custody on the same basis as Fleckney in various police stations (removed from time to time, under guard for welfare visits, entertainment etc) where between July and September 1998 he admitted participation in further offences implicating the claimants and others. In October 1998 he pleaded guilty to 16 offences committed between 1991 and July 1997 which were subject of two indictments. (Footnote: 4 ) Following the claimants’ trial, in February 2000 he was sentenced to a total of 3 years and 1 month’s imprisonment for those offences.
The investigation into Robert Clark and Christopher Drury was known as Operation Russia.
At trial, the incriminating evidence against the claimants came from three sources: Putnam, Fleckney, and the criminals whose property was stolen and their associates or neighbours, who had witnessed money or drugs being taken. Putnam and Fleckney were put forward by the prosecution at trial as witnesses who could be believed as to their evidence which related to the offences indicted, but albeit that they were generally tarnished by their own admitted, or exposed, lies and criminality. As a result of these concerns as to their reliability, the case proceeded upon the basis that the jury would inevitably be warned (and were warned in clear and forceful terms) to be extremely cautious before acting on either Putnam's or Fleckney's evidence by itself, and to look to see if any material part was confirmed by a wholly independent source (i.e. having ruled out any realistic possibility of cross-contamination).
Each was therefore treated as being at the 'extreme end' of unreliability in the terms described by Lord Taylor C.J. in R v Easton [1995] 2 Cr.App.R. 469 in the guidance given by the CACD shortly after the repeal of the requirement for warnings and corroboration by section 32 of the Criminal Justice and Public Order Act 1994.
The prosecution case was that because Putnam and Fleckney had not been known to each other when relevant events had occurred other than as passing acquaintances, and had then been kept quite separate from and incommunicado of each other when assisting CIB, that if both made the same allegation, they did so wholly independently of each other. This aspect of the prosecution case became known as 'the sterile corridor'.
The defence case was that in so far as Putnam and Fleckney alleged that Clark and Drury were involved in corruption, they were engaging in malicious falsehood, and that CIB3 had thoroughly misbehaved in both pressurising the 'resident informants' into making false allegations and allowing 'cross-fertilization' between them of their accounts, having unlawfully held them in police custody through a misuse of Home Office Production Orders. To the extent that other witnesses supported Putnam's and/or Fleckney's evidence of corrupt activity, the defence case was that they too were lying. Legal arguments seeking either a stay on the grounds of abuse, or the exclusion of Putnam and Fleckney's evidence on the above grounds were, however, rejected.
A summary of the evidence given on the ‘Guildford John’ counts and the ‘Briar Cottage Counts’ can be taken from the prosecution summary, set out at paras 37 and 33 of the CACD’s judgment in the second appeal.
First, ‘Guildford John’:
“48. John Cudworth was called 'Guildford John'. He was a drugs dealer (primarily cannabis) whom SERCS had investigated in the early 1990's with no result.
49. Fleckney gave information to Clark that Cudworth was an extensive dealer. The prosecution case was that Clark and Drury planned to steal drugs from Cudworth and did so on 30th January 1995 [SU p 146-149].
50. Putnam gave evidence that the squad had investigated Cudworth for about 12 months and that Clark was in charge. Putnam had done some of the surveillance, but he had been on leave on the 30th January 1995 and had taken no part in the operation that day [SU p 150].
51. Fleckney gave evidence that she had been involved with Cudworth for some time over cannabis and that he was almost a friend. They often met off the A3, either by some woods, or at the Tolworth Bowl car park, to exchange drugs. She was at the Tolworth car park to meet him on 30th January 1995 with her partner 'G', who got suspicious of a man standing at a bus stop who she then recognised as Drury. She accordingly phoned Clark to tell him of it and that her partner was getting nervous. A short time afterwards Drury was picked up. Cudworth then arrived in a car and parked alongside her. She had ordered a kilo of cannabis but he asked her if she would take two, and she agreed. He took it from the boot of his car, and she saw he had about eight kilos left of black cannabis. She was to pay him after it was sold. She knew he would be arrested sooner or later, as Clark had told her that Cudworth had been flagged; but when she telephoned Cudworth later that evening he said the police had robbed him of his cannabis. She then saw Clark the same evening and he had about 5 kilos of black cannabis, which had been stolen from Cudworth. She took it and sold some herself, and the rest was sold through another man. She did not know Aldershot or have any idea that Cudworth was in a multi-story car park there when he was arrested that day. She agreed that she had betrayed him, but everybody used each other in her trade. After Cudworth was sentenced to 4 years he had asked her to make a statement to complaints about Clark but she refused. He had never asked her if she had 'grassed' him [SU p 150-154].
52. Cudworth gave evidence that he had been arrested on 9th March 1996 dealing cannabis again and that on the way back to the police station he told the arresting officers that the last time the police had taken it, and was something similar going to happen this time? The officers were angry at such a suggestion and thought he was trying to do some sort of deal. His account as to these events in 1996 was supported by the police officers who arrested him, who advised him to make a formal complaint, which he did three days later, providing a statement on 13th March 1996 about what had happened on 30th January 1995, which formed the basis of his evidence in the Appellants' trial. He had picked up the ten kilos earlier on 30th January 1995, and he arranged by telephone to meet Fleckney at the Tolworth Bowl, where he had sold her cannabis many times before. He did not stay long because she and her friend mentioned that they had seen a couple of people who might be police officers. He gave her two kilos, leaving him with eight, and then went home to Denmark Square in Aldershot to pick up the telephone number of another potential customer. While he was at his house he saw a friend called Armstrong who also dealt in cannabis, but did not sell him any of the cannabis. He then drove, with two kilos of cannabis still in the boot, and six in a bag inside the car, which he was going to leave at a safe house near the church in Edward Street in Aldershot. He parked at one end of Church Street but was then 'rushed' by four SERCS officers as he got out and he dropped the bag with the six kilos in when they told him to do so. They told him they were looking for 'class A' and said they would "give him a life", but he said he was not interested in doing any deals. Two of the officers moved him and his car to another car park. When he went to reach for a piece of cannabis in the car to put it in his mouth, they thought he was going for a gun. He said he had no gun, but had a roll of money in his pocket (£400-500). They then left taking all eight kilos with them, but left his roll of money. Because he was worried that the same thing might happen to his supplier and to Fleckney, he telephoned them both that night to tell them what had happened. [SU p 154-159]
53. DI Bridger gave evidence that he was one of those who stopped Cudworth on 9th March 1996. En route to the police station Cudworth had asked if they were Dulwich officers and they said Surbiton; then Cudworth told them that he had been stopped by the Dulwich squad and they had stolen his drugs and let him go, and were they going to do the same? DI Bridger said No [SU p 165].
54. DI Hayes of CIB saw Cudworth on 9th March1996 at Aldershot Police Station with DS McNamara. Two statements were taken on 11th and 13th March 1996. He denied the defence suggestion that he had gone to put pressure on Cudworth to make a false accusation, in fact, he had no idea what he was going down there about even, other than that a prisoner wanted to talk about allegations. Sgt Mills-Bishop gave similar evidence [SU p 168-169].
55. Armstrong gave evidence that he had known Cudworth 10 years and was a convicted drug dealer. He had agreed to do some work on an appliance for Cudworth that day but in the end did not go into his house as he asked him to come back another time. Cudworth then telephoned him later and said he had been robbed of his cannabis by the police, but thought they may have been criminals pretending to be police, and that his cannabis had been taken. It had happened about a year before Cudworth had been arrested in Feb 1996. He had been to see him in prison to discuss the matter. He denied suggestions that he was lying and asked why he should want to come and put down four men he didn't even know and that he had come to no dishonest script with Cudworth [SU p 166-167].
56. Clark's contact sheet timed at 11 am on 30th January 1995 recorded that Fleckney had told him that Guildford John was going to, or had, collected cannabis in 'the soaps' in New Malden, and to go to the multi-storey car park near Burger King in Aldershot, find his green Datsun and watch for a meet (SU p 194). The prosecution case was that the entry was untrue and made to cover for them being where they were to arrest Cudworth. The defence case was that it was true and what actually happened.
57. Clark gave evidence that Cudworth was under surveillance on 10th, 11th and 12th January 1995. By 30th January 1995 there was a static observation post on his house and they travelled straight to Aldershot from Surrey. Cudworth was not at home, but then the officer in the observation post, DC Reynolds, reported that Cudworth had arrived and had a 'boot to boot' meeting with another Jaguar, so he decided to go after Cudworth and arrest him. Cudworth was spotted going into Aldershot and they stopped him by the Church in Edwards Road. They made as routine a search as possible so as not to arouse his suspicions. The information had come from Fleckney. They did not take any drugs as there weren't any [SU p 169-172].
58. Sgt Blacketer gave evidence that a check had been made of the squad's surveillance logs for 30th January 1995 but none had been found that showed that there had been any static observation of Cudworth's house that day, the prosecution's case being that there never was one [SU p 187-189].
59. Drury gave evidence that he was not at the Tolworth car park on 30th January 1995, as Fleckney had said, but that he had been told about 1.30pm to go to Aldershot with the rest of the team. He remembered hearing over the radio that Cudworth had a 'boot to boot' meeting with another car by his house, but then, having lost him, they saw him by chance in Edward Street and stopped him. It was he and Clark and Reynolds and possibly Hardy who stopped him. They said they were from the Regional Crime Squad, Cudworth seemed quite relaxed and the negative search lasted about 15 minutes before they left. The stop was not recorded to protect Fleckney [SU p 172-174].”
Secondly, ‘Briar Cottage’:
“60. Cudworth gave evidence that he sometimes used the woods and the grow tubes at Briar Cottage to hide his cannabis, with Burns' consent. Two to three weeks after his cannabis had been stolen in January 1995 [by Clark and Drury], Burns asked him to go to Briar Cottage and told him that the police had come there and taken the money that he was going to give Cudworth for drugs he had supplied to him (either £1700 or £800), and he showed him a search warrant. They were still unsure whether it was really the police or other criminals who were ripping them off. Eventually a friend of Cudworth's confirmed they were genuine police from a vehicle index number. He told CIB about this in 1996 and he contacted Burns to ask if he was prepared to assist CIB and Burns came to see him. He said that he had received no offer of help from the police related to him giving evidence and that in fact it had caused him quite a lot of trouble in prison. He could not see how giving evidence now could possibly help him as he had served his sentence and given up drug dealing as next time he would get a long sentence. He said that Fleckney had visited him in prison and spoken of corrupt police officers, and that he had not sold her the whole ten kilos that day but was telling the truth [SU p150 – 163].
61. On 10th April 1995 Drury, Pearce, Lawson and Putnam (but not Clark who was by then with the Flying Squad at Tower Bridge) went to Briar Cottage. The prosecution case was that Burns' briefcase was found to contain cannabis and that Putnam then found £800 cash in a desk in the dining/music room which was stolen and split four-ways between them and one other [SU p196-197].
62. Burns gave evidence that he was a friend of Miss Rose and her daughter Daisy, who lived at Briar Cottage, and that Burns occupied an old camper van in their garden. He had a cannabis habit, which Miss Rose would not have in the house, so he would smoke it in the van. The Jepson's lived next door and they all knew each other. It was a fairly isolated spot. Burns bought smallish amounts of cannabis from Cudworth, and Cudworth would sometimes hide cannabis in the woods where there were old grow tunnels. On 10th April 1995 four police officers turned up in two cars. Drury and Putnam went to the back and Lawson and Pearce to the front where the door is never used. Miss Rose went out and was shown a warrant card and they said they had a drugs warrant. Miss Burns was the occupier and Burns was her partner. Burns told them that she had nothing to do with it, that the van was his home and that he would hand over all he had, giving them his briefcase with cannabis (8-9 ozs) in it, and his drugs paraphernalia straightaway. Drury (from his description) opened it and then spoke to another officer (Putnam) as the other two were coming into the hallway. Drury told the others to search the house, and Pearce searched the garden. Burns was shown some paper in a grow tunnel that Cudworth used to hide his cannabis in, and they said he should show them where the rest was. He said there was nothing else. In the sitting room of the house was about £250 and in a drawer in the music room was an envelope containing £800. Burns was in the music room with Putnam, who looked in the drawer, found the envelope and counted it before putting it back. When they were in the garden Drury had told him that he could either go down to the police station with the cannabis, or they could get a JCB in, or they could take the cash and go. He agreed they could take the cash. He asked if they had to take all of it and they said "Yes". Drury told him not to tell anyone [SU p 197-202, 206]. It was put to Burns that there had been no cannabis found at all and that nothing had been said about any money, which he denied. He denied ever talking to Putnam since the search or knowing what he was saying now about it. He agreed that it was possible that the bag with the cannabis was produced and discussed while the other two officers were not present [SU p 207-208].
63. Miss Rose gave evidence that she was shocked and upset throughout the search and worried that her small daughter might come home while it was in progress. When the police arrived Burns had immediately offered his briefcase to them, saying it was nothing to do with her, to the one who fitted the description of Drury (5'10", fit, hyped up and more aggressive than the others) who was with another whose description fitted Putnam. She remained in the kitchen and the living room while they searched, but it was not a thorough search, as they did not look in her handbag or under her mattress. They kept saying they were searching for heavy drugs. She was not at any stage in the music room, but she knew that there was an envelope with around £800 in a drawer in there, and £250 in the spice rack in the sitting room. Towards the end of the search she went and sat by the back door. At the end, the one who fitted Drury's description said that they could take Burns away but that they were leaving him there with the cannabis: "you can carry on with what you are doing, we're not interested" [SU p202-203]. She was adamant that Burns had offered up the cannabis in his briefcase [SU p 209].
64. Mr. Andrews, a close friend of Miss Rose's, was also present. He gave evidence that Burns had offered the cannabis at the outset to the one whose description fitted Drury, who opened up the bag it was in and the cannabis was about the size of a tennis ball, then he said: "There isn't much is there?" He was adamant that when the cannabis was found all four of the officers were around at the time, but agreed that his statement said that he was not sure if any of the others had witnessed the handing over of the cannabis, but thought they must have. One of the officers had asked at one stage: "shall we trash it?" And had told Miss Rose that she would lose her house and child. He knew the cannabis had been left at the house by the police after they had left. He had taken down the registration of a vehicle they were using, a Ford P100 truck. He denied that there had been no cannabis produced. [SU p204-209
65. Evidence was given as to those who had been present in the search having discussed the same day what had happened with a neighbour, Gerry Hall, who had seen the police in the garden. Burns told him that evening that he had been 'done over' and that some money had been taken, and some drugs. Mr Andrews gave evidence that after the police had left Burns had told him that he still had his cannabis but that it had cost him £800 and he and Burns and Miss Rose had discussed it at some length.
66. Mr and Mrs Jepson lived next door in the other half of Rose Cottage. Mrs Jepson had written in her diary for the 10th April: "weird goings on. Drugs raid or not? Saw Cheila (Rose) at 5.30 very upset." She remembered that Miss Rose had told her that day that the people who had been at the cottage had taken some money (£7-800) and left the drugs behind. So within a couple of hours of the raid in April 1995 those concerned were telling others these things, long before Cudworth made his complaint on arrest in March 1996. Mr. Jepson gave evidence that he saw Burns the following morning and he seemed terrified, telling him that they had taken well over £100 from his briefcase, in which there were drugs, that he had handed over to them immediately [SU p 211 – 215].
67. Putnam gave evidence that either Lawson or Pearce told him that drugs had been found in a satchel and he had opened it and seen a sufficient quantity for supply, so Putnam had started to look for paperwork relating to any assets. Later he accepted that he was unsure who had told him of the finding of the cannabis. He found the £800 cash in the desk. Burns denied it was related to drug dealing and Putnam left it there. Burns asked if he might just get a caution. Outside he told Drury of the cash and Drury had asked, "Can it be nicked?" He said he had counted it in front of Burns, so it couldn't be. Then they went into the house and Drury started to explain to Burns that they might have the cash, but Putnam interrupted and said he could keep the cannabis if they took the cash and Burns agreed. They split the money later, but Pearce and Lawson did not even know they had taken it. Later in the day when he told them they "had a little touch'' and gave them ''a drink''. When the complaint was served in March 1996 Lawson had asked him what he had done and it was only then he told them it came from Briar Cottage. Later on the three of them had agreed that they would say that they found no drugs or money, but otherwise tell the truth. Putnam's evidence made no clear case against either Pearce or Lawson [SU p 215-221].
68. Drury gave evidence that Burns had never produced a brief case. Andrews was being quite difficult and aggressive as Miss Rose was upset. He was never shown any drugs or aware of any money. There was no agreement to lie between them. Lawson and Pearce also denied knowing of any drugs or money being produced or found but agreed that they were using the Ford P100 that day [SU p 235-248].”
(iii) The first appeal
The claimants’ grounds of appeal related in the main to events which took place at the abortive trial of the claimants which began 4 October 1999. It is unnecessary for present purposes to go into detail since these matters are set out at length in the Court’s judgment. But amongst the grounds considered by the CACD (and rejected) were that the evidence of Fleckney and Putnam had been obtained in breach of the Police and Criminal Evidence Act 1984 (PACE) and that there had been non-disclosure by the prosecution of material which cast doubt on Putnam's credibility (called Category I at the second appeal: see further para 31 below). As to the latter ground, the CACD said that non-disclosure had not affected the verdicts as the jury had regarded Putnam with cynicism in any event.
Further applications to the House of Lords and European Court of Human Rights were refused, and the claimants were subsequently released on parole in 2003 having served half their sentences.
(iv) The CCRC reference and the second appeal
The CCRC referred the claimants’ convictions back to the CACD after a seven-year investigation. The reference was made on the basis that there had been substantial non-disclosure by the prosecution of various categories of documents before the trial which were or might have been relevant to the credibility of Putnam and/or CIB3 and/or Fleckney, and to the tactical decisions made by the defence at the trial: see the Appendix to this judgment which sets out Categories I to VI and the CCRC’s description of the documents within them.
Extensive investigations, further directions hearing and a PII hearing had also taken place between the date of the reference and the hearing of the second appeal. These gave rise to two further grounds of appeal in addition to that which relied on the non-disclosure the reference had identified.
Hooper LJ, giving the judgment of the CACD in the second appeal, described how matters now stood:
“13. In the words of the respondent:
“As a result of the content of the CCRC's Statement of Reasons a completely new team of investigators, Crown Prosecution staff and counsel was formed to deal with the Appeal, and a protracted review of unused material has taken place since then. As a result of the issues (or potential issues) in the Appeal a significant quantity of unused material both directly related to the CCRC Statement of Reasons and indirectly arising from the issues it raises, or from other issues the Appellants have sought to make part of this Appeal, has been disclosed to the Appellants by the Respondent.”
14. To the ground relating to non-disclosure, two other grounds have been added by the appellants, both of which needed leave and neither of which, as it turned out, needed to be addressed by us. The second ground was primarily based on fresh evidence and the third ground concerned the admissibility of the evidence of the two "resident informants" relied upon by the prosecution at trial, Evelyn Fleckney and Neil Putnam. A person is described as a resident informant if he is taken from prison where he is on remand or serving a sentence and placed in a police station where he makes statements inculpating others in criminal offences as well as himself or herself. We were informed that the prosecution do not intend to call Putnam if there were to be a retrial. Fleckney was not only a resident informant but had earlier been a registered informant and one of her handlers had been Clark.
15. The fresh evidence relied principally upon by the appellants concerned an allegation made by Putnam in 2006. Given that the appellants succeed on ground 1 and that in any event Putnam would not be giving evidence on any retrial, it was not necessary for us to reach any conclusion about this ground.
16. As to the third ground, Mr Jones QC for the appellants asked us not to resolve it, whilst reserving his right to argue the point on any retrial.”
The CACD quashed the convictions on counts 1 and 2 (the ‘Nutley’ counts) because those counts depended very largely on the evidence of Fleckney and Putnam; and because of the effect that the undisclosed material may have had on their credibility. The CACD said there was no dispute that the material in categories II, IV, V and VI was material from which a jury may have found that Fleckney was prepared, perhaps in collusion with another, to give false evidence against another officer, a Detective Constable May (as well as Robert Clark) implicating him in a very serious offence. There was no dispute either that if the material had been disclosed, then it would have been used by the defence or that if that material had been used, the jury might reasonably have brought in a different verdict on those counts: see paras 25 to 27.
It was argued for the prosecution that the convictions on the ‘Guildford John’ counts, counts 10 and 11, were safe because there was evidence which supported those counts, other than from Fleckney, namely from Cudworth, who had made a complaint in 1996, long before Fleckney implicated Robert Clark and Christopher Drury, and from Armstrong. The CACD considered however that Cudworth and Armstrong were witnesses about whose credibility the jury were likely to have concerns. It said (at para 30) that if the jury had placed weight on the evidence of Fleckney in supporting the evidence of Cudworth, they might reasonably have come to a different conclusion if they had known more about Fleckney, as they would have done if the (undisclosed) material had been disclosed. In the circumstances, the CACD concluded at para 31:
“…although the evidence against [the claimants], if credible, was strong, it cannot be said that the convictions are safe in the light of the admitted non-disclosure.”
The CACD’s view of the safety of Drury’s convictions of the Briar Cottage counts was this:
“33. There was obviously a strong case against Drury, relying as it did in significant respects on the evidence of persons with no good reason to lie. It may be noted that while Putnam gave some evidence with regard to the Briar Cottage counts, Fleckley [sic] gave no evidence at all on these matters.
34. Mr Jones ultimately takes one point only. If the jury had reached conclusions adverse to Drury on the Nutley counts and the Guildford John count before deliberating on these two counts, then they may well have placed considerable reliance on the fact, as they had found it to be, that he was an officer who corruptly abused his position when dealing with drugs cases. To put it another way, absent the other counts, it is more likely that the jury would have acquitted given the good character of Drury. Mr Ellison submitted that, in the light of the other evidence, the conviction was safe. In our view, the submissions of Mr Jones have considerable force and we cannot be satisfied that these two convictions are safe in the sense which we have identified. ”
(v) The application for a retrial
After the CACD announced its decision at the hearing on 16 November 2010, the prosecution applied for a retrial on counts 10 to 13 only i.e. the ‘Guildford John’ and ‘Briar Cottage’ counts.
That application was vigorously opposed by the defence for a number of reasons, including the state of the evidence and prosecutorial misconduct. The issues raised by the defence in opposition to the retrial application included the pre-trial disclosure process, what had been disclosed (and not disclosed) by the CPS lawyer (a Mr Polaine) which included documents relating to another resident informer, Diana Morris, and a different CIB3 inquiry, ‘Operation Ipswich’; and the effect that non-disclosure might have had on the credibility of Fleckney (it was alleged she had concocted a story with Morris to “stitch up” a different police officer, Detective Constable May) and on the trial process.
These reasons were the subject of detailed scrutiny by the CACD: see paras 35 to 62. However the CACD ultimately concluded that a retrial should taken place. Its reasons for doing so are important.
The CACD rejected the submission that there had been gross prosecutorial misconduct. However the serious errors made in the disclosure process were taken into account when considering whether there should be a retrial. The CACD said this:
“63. Mr Ellison [Prosecution counsel] … accepts that there were serious errors made in the disclosure process. He submits nevertheless that the public interest requires a case of this gravity involving police officers found by a jury to have been corrupt to be concluded with a verdict. He points out that the appeal has only succeeded because the jury might reasonably have come to a different verdict had proper disclosure been made. He also relies on the subsequent "confessions".
64. Mr Jones sought to paint the matters covered by these remaining four counts as less grave than Mr Ellison was submitting. Mr Jones submitted that if the appellants had been drug dealers or robbers it is not likely that a retrial would be ordered after all this time and he may well be right.
65. In our view the principal factor favouring a retrial is that the conduct alleged against these two appellants (if true) strikes at the very heart of our society. Corrupt police officers (if that is what they are) must be identified for the sake of society at large and of other honest police officers. The evidence against the appellants remains, in our view, strong, particularly the evidence against Drury on the last two counts.
66. The principal factors militating against a retrial are the delay, the fact that the appellants now aged nearly 50 have served their sentences and are now leading law abiding lives and the fact that the serious errors which we have identified were made by the prosecution in the disclosure process. There is of course no question of the appellants returning to jail, given that, if convicted, any sentences passed can be no longer than the original sentences. We accept that, as Saunders shows, the Court at that time would not have envisaged a retrial so long after the original trial. However, courts are now very used to hearing cases arising out of incidents many years ago and have developed procedures to ensure a fair trial. Nor do we see the ordering of a retrial as "rewarding" the prosecution or any encouragement not to make proper disclosure in future cases.
67. Balancing these competing factors, it is our view that it is in the interests of justice require [sic] that there be a new trial. The formal order to that effect will be made at the time of the hand down.
68. We add that we can see a strong argument that the purported confessions (following conviction) of both Clark and Drury also support the position that it is in the interests of justice that there be a retrial. There may well be a challenge as to the admissibility of those purported confessions but it can be said that it is desirable that that very issue of admissibility is itself decided by a judge at a further trial and (were they to be ruled admissible) the confessions then evaluated by a jury. However, we did not understand Mr Ellison in terms to advance this point in this way and we are content to reach our decision that there should be a retrial without reliance on it.”
(vi) The confessions
The confessions which the CACD referred to had been made by the claimants before their release on parole. In those confessions the claimants had each confessed they were guilty of the offences of which they had been convicted. The CCRC described each confession as detailed and containing elements of mitigation, consequent insight and remorse. In witness statements made for the CCRC, both men said they had made these confessions in order to improve their Categorisation and progress in prison and/or their chances of parole.
The prosecution served evidence of the confessions for the purposes of the second appeal. They were not relied on to support the safety of the convictions, but the prosecution made it clear that it intended to rely upon them on a retrial if there was one: see para 17 of the CACD’s judgment in the second appeal. The claimants argued however that those confessions would be inadmissible at a retrial as they had been made in order to secure parole and had not been true.
Ultimately, as can be seen, the CACD did not take those confessions into account in determining the retrial issue. However the prosecution’s case was (and remained) that even though there was a potential advantage to be gained by a convicted prisoner subject to discretionary release, making a confession, the confessions made by the claimants were not incapable of belief. The prosecution made the following points about the confessions in its written argument for the second appeal:
The circumstances of the claimants’ detailed confessions were such as to show that they are not obtained in consequence of anything said or done which was likely, in the circumstances to render unreliable and confession that might be made by them, or by oppression, under section 76 PACE, or such that to receive them as fresh evidence under section 23 CAA 1968, would be otherwise than in interest of justice.
The claimants were both experienced detectives, and more than capable of recognising potential significance of falsely confessing to prison staff making formal records. In so far as Robert Clark sought to assert that he was provided with advice and reassurance that a confession would have no consequence, no waiver of privilege had accompanied it or evidence that such legal advice was given. Christopher Drury simply asserted that he confessed in the belief that the fact would not get out, as indeed it did not for some years until the CCRC investigated the prison records.
Christopher Drury confessed very shortly after he had been sentenced, at a time when any prospect of appeal could only have been a repetition of arguments lost at trial, and in circumstances consistent with him having decided that there was no longer any point denying his guilt. His confessions were also detailed and remarkably similar to Robert Clark’s, there being no suggestion that they had reached some form of agreement prior to Drury confessing as to the false confession that would be made.
Each independently of the other described: an endemic corruption in SERCS from the time they joined, leading to an eventual succumbing by them to involvement; and each described the culture in the squad as being that it was accepted as necessary and almost justified to provide unofficial rewards to informants as an incentive for further valuable information as it enhanced the performance and reputation of the squad.
Robert Clark did not confess until he arrived at HMP The Verne to find that Christopher Drury had arrived there a few days before. He would then have come to know that Christopher Drury had ceased denying his guilt, and shortly afterwards he took the same course. Robert Clark was also thereafter meticulous in correcting aspects of his confessions that did not matter in the slightest if the confession had simply been a false one tailored to maximising his chances of the earliest release.
(vi) The retrial
In October 2011, at pre-trial hearings for the retrial, held at the Central Criminal Court before Bean J, the claimants made applications to stay the proceedings as an abuse of the process or for the judge to exclude the evidence pursuant to section 78 of PACE. The prosecution opposed those applications. It submitted that in reality the claimants were seeking to reverse the decision to order a retrial on the same material and substantially the same arguments presented at the second appeal; and/or to gather material to improve the merits of their abuse argument through cross-examination of police officers, CPS, counsel and others.
Prosecution witnesses were called as part of the abuse argument including Fleckney. As the Secretary of State put it in his skeleton for this claim, contrary to the evidence she had given at the original trial and contrary to her statements before the retrial, in which she indicated she was willing to give evidence again, Fleckney now claimed to have no recollection of criminality by the claimants that she had previously described and expressed determination not to give evidence at any retrial; and said she would move abroad to avoid doing so. The judge gave permission for her to be treated as a hostile witness. However, after having considered the possibility of calling her at a retrial as a hostile witness, the prosecution decided to offer no evidence against the claimants.
The prosecution’s reasons for reaching this decision were given in open court by Mr Ellison QC on 19 October 2011:
“…Your Lordship will appreciate that whatever may be our position on this abuse of process, ultimately we have to look at the evidential strength of this case before a jury.
The Crown sought a retrial in the Court of Appeal on the four counts before the court on the basis that although unable to call Neil Putnam as a prosecution witness, the combination of Evelyn Fleckney’s evidence and the other evidence available merited a retrial.
Late last year, at the time of the appeal, Evelyn Fleckney undoubtedly indicated that she remained prepared to give evidence at a retrial as indeed she had done at the original trial. The application for a retrial was therefore made and, no doubt, as to some extent, granted by the Court of Appeal on that basis.
When she appeared to give evidence before this court yesterday, she demonstrated a clear hostility to the prosecution, making new allegations of misconduct against the investigators who debriefed her and the senior investigating officer, claiming to have no recollection at all of any criminality by the [claimants] that she previously described and expressed the determination not to give evidence at any retrial, even to the extent of moving abroad to avoid doing so.
We have considered the possibility of calling her nevertheless at a retrial as a hostile witness because that would be the only basis on which we could do so, but do not regard it to be an appropriate course for the prosecution to take in this case in the circumstances of this retrial.
We consider that without Fleckney’s willing evidence in this case, there is no longer a realistic prospect of conviction of either [claimant] on any of the counts that they face and it is accordingly our decision to offer no evidence against them today.
We should add that we have and would, but for this event, have continued to contest the various grounds on which the defence have applied for the retrial to be stayed or for the evidence to be excluded, but we have a duty to look beyond that application to the weight of the evidence overall and in particular to have regard to the basis on which we sought and obtained a retrial from the CACD, which has substantially fallen away.”
On 12 November 2012 the claimants applied to the Secretary of State for compensation under section 133 of the CJA 1988. Their applications, as amended on 30 April 2013, made reference to the documents (nearly 40,000 pages) considered by the parties for the second appeal. However, the primary submission made was that their applications required no underlying documents at all because the decision of the CPS to offer no evidence at the retrial, decided the issue of compensation in the claimants’ favour.
(vii) The reasons for refusal
That argument was not accepted by the Secretary of State. In between the date of the claims for compensation and the date of the decision (12 March 2014) further clarification had been given by the Court of Appeal of the meaning and effect of section 133 of the CJA 1988 in R (Ali and Others) v Secretary of State for Justice [2014] EWCA Civ 194, [2014] 2 All ER 1064 (Ali); and the reasons given for refusing the applications for compensation were these:
“The Justice Secretary has carefully considered your case, which is complex and involved some difficult issues. He has concluded having considered your application against both the decision in Adams and Ali [in the Court of Appeal] there has not been a miscarriage of justice in your client’s case.
As stated above, it is clear that your client’s application satisfies the primary grounds for eligibility for compensation under section 133 of the Act (i.e. the convictions were quashed on an out of time appeal) and the CACD quashed the conviction on the basis of a new or newly discovered fact.
However, he has concluded that this test has not been met. There is no indication in the Court’s judgment that the new or newly discovered fact demonstrated beyond reasonable doubt that there was insufficient evidence upon which to base a conviction. In fact, the Court ordered a retrial having concluded that although your client had completed his sentence, the conduct alleged against him (if true) ‘strikes at the very heart of society’. Most fundamentally, the Court considered that the evidence against your client remained strong.
We acknowledge that the retrial of your client did not ultimately take place. We note that the reasons for this included problems with the evidence of the prosecution’s principal witness, Evelyn Fleckney; indeed, the retrial judge ordered that she be treated as a “hostile witness”. In this context, we note the comments of the Court of Appeal in Ali and others at paragraph 56 of its judgment:
“As for the matters of credibility post-dating the conviction, although each assessment is fact-sensitive, we think it would be exceedingly rare for matters going to the credit of a witness who gave evidence at trial, to be material to an assessment by the Secretary of State of the merits of the claim under section 133. In the event, at best, the matters highlighted by Mr Owen would have been for a jury to resolve in the light of the others evidence in the case.”
Notwithstanding Ms Fleckney’s unwillingness to give evidence at trail, we consider, and the extract from the Court of Appeal above confirms, that it would have been for a jury to consider her evidence in light of the other available evidence. Such evidence included your clients’ subsequent confessions made during the parole process. It is true that the Court overturning your clients’ conviction considered that the admissibility of these confessions might be challenged, but it went on to consider that “it is desirable that that very issue of admissibility is itself decided by a judge at further trial…and the confessions then evaluated by a jury”. All that can be said, therefore, is that a jury may or may not have convicted based on the totality of evidence…”
The law
Section 133 of the CJA 1988 provides in part as follows:
(1)Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed …on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction …unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
…
(3)The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
…
(5)In this section “reversed” shall be construed as referring to a conviction having been quashed—
(a) on an appeal out of time; or
(b) on a reference—
(i) under the Criminal Appeal Act 1995;
…
(5A) But in a case where—
(a) a person's conviction for an offence is quashed on an appeal out of time, and
(b) the person is to be subject to a retrial,
the conviction is not to be treated for the purposes of this section as “reversed” unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial.
The decisions made in respect of the claimants were made under section 133 prior to its amendment by section 175 of the 2014 Act. This inserted a new section 133(1ZA) which defines "miscarriage of justice":
"For the purpose of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection 6H applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly)."
The meaning of miscarriage of justice in section 133 prior to its amendment by the 2014 Act
The leading case on the meaning and effect of section 133, and in particular the meaning of "miscarriage of justice” is R (Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 AC 48. See further Ali, where the Court of Appeal, at paras 21 to 28, disapproved the reformulation of the test in Adams, by the Divisional Court in the judgment under appeal (R (Ali) v Secretary of State for Justice [2013] EWHC 72 (Admin)).
In Adams the Supreme Court decided that a miscarriage of justice for the purposes of section 133 was not restricted to circumstances where conclusive proof of innocence was shown (referred to as Category 1). It included cases where a new or newly discovered fact showed that the evidence against the defendant had been so undermined that no conviction could possibly be based on it (referred to as Category 2): "A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it." Lord Phillips at para 55.
However, “miscarriage of justice” for this purpose did not include circumstances where new evidence rendered a conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant, or where something has gone seriously wrong with the investigation of the offence or the conduct of the trial, resulting in the conviction of a person who should not have been convicted. Further, the test for determining whether there had been a miscarriage of justice so as to entitle a claimant to seek compensation under section 133 was different to the test which a court would apply in quashing a conviction as unsafe. The Secretary of State would need to have regard to the terms of the judgment quashing the conviction, but it was for him to form his own conclusions as to whether a new or newly discovered fact had led to the quashing of the conviction, and if so, whether that fact showed beyond reasonable doubt that a miscarriage of justice had occurred.
At para 52 of Adams, Lord Phillips explained why he did not accept an earlier formulation of Category 2 by the Court of Appeal in Adams which was equivalent to the test to be applied by the judge in deciding whether there was no case to answer at the end of the prosecution case:
“Under common law procedures the evidence that is permitted to be placed before the jury is screened by a number of rules that are designed to avoid the risk that the jury will be unfairly prejudiced and to ensure that the trial is fair. Thus section 78 of the Police and Criminal Evidence Act 1984 gives the judge a general jurisdiction to exclude evidence on the grounds of fairness and section 76A of the same Act contains a little code governing the admissibility of a confession. So does section 8(2) of the Northern Ireland (Emergency Provisions) Act 1978, which was applicable to the critical evidence adduced against the defendants in the second appeal. Often it will be appropriate for the judge to hold a voir dire in order to decide whether or not evidence can be admitted. The question of whether there is evidence upon which a jury can properly convict is taken after the judge has screened from the jury evidence which, under the relevant procedural code, he has ruled to be inadmissible. That is often a difficult judicial task. I do not believe that section 133 should be so interpreted as to impose on the Secretary of Sate the task of deciding whether the fresh evidence would have rendered inadmissible the primary evidence to which it related, in order to answer the question whether there would have been a case upon which a reasonable jury could convict.”
In Ali the Court of Appeal said that:
“22. Adams was intended to identify the correct test and provide guidance to those who have to consider the application of section 133, including the Secretary of State, and any lower court which has to decide whether the refusal of compensation in a particular case is unlawful. There was indeed explicit acknowledgement by the Supreme Court that it was important that there should be clarity as to the correct test.
23. It is true, as we have said, that it could not be said that there was unanimity as to the reasoning of the majority. Although Lord Kerr and Lord Clarke ultimately agreed with Lord Phillips's formulation of the category 2 test, their reasons for doing so differed from those given by Lord Phillips (with whom Baroness Hale agreed) and by Lord Hope. Lord Hope agreed with Lord Phillips' definition of miscarriage of justice and concluded (at paragraph 96), that in such cases it would have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place. Lord Kerr (at paragraph 178) said he was content to subscribe to the test proposed because in his view it would achieve the same result as that which he proposed ("whether on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that the applicant should not have been convicted"); and Lord Clarke (at paragraph 217) said that he considered the test Lord Phillips proposed to be consistent with the Court of Appeal's category 2 test, because in such a case no reasonable jury properly directed could convict the defendant.
24. It does not follow from this, however, that the identification of category 2 itself is not straightforward, as the Divisional Court suggested, nor that it was open to the Divisional Court to formulate a different test, based on one preferred by Lord Clarke.
25. This is not a mere matter of semantics, or nit-picking as Mr Owen submits. The Divisional Court's formulation is very similar to the test Lord Phillips had expressly rejected for the reasons explained by him at paragraphs 51 to 54 of Adams, and in our view is apt to encourage the sort of application which both Lord Phillips and Lord Hope said they wished to avoid i.e. applications which amount in effect to submissions of no case to answer. This is not a view we have formed in the abstract; it is based in part at least on the nature of the submissions made by the appellants on the merits issues considered during the course of this appeal.”
26. As a result, the Divisional Court's test is capable of undermining the important distinction between the role of the Secretary of State when determining an application for compensation under section 133, and that of the courts when quashing the conviction under consideration, a matter of significance to the decision in Adams: see Lord Phillips (at paragraphs 36 and 46), Lord Hope (at paragraph 101), Lord Kerr (at paragraphs 169 and 178), Lord Judge (at paragraph 240) and Lord Brown (at paragraph 274, 277 and 282). Similarly, it is also apt in our judgment, to lead to unmeritorious applications for judicial review. We note in this context that there is no appeal against the Divisional Court's rejection of the substitutionary approach advocated on behalf of the appellants below, a decision it came to in view of the wording of section 133(3) and the inconsistency of such an approach with the reasoning in Adams.
27. Putting it at its simplest, a new or newly discovered fact may lead to a conviction being quashed by the CACD because the evidence pertaining to it is capable of belief, and it undermines the safety of conviction. The test as to whether a miscarriage of justice has occurred within the meaning of section 133 however is not the same. Nor is it the same as that which a judge would apply when deciding whether there is a case to answer at the close of the prosecution case, assuming hypothetically that the new or newly discovered fact was part of the evidence to be considered. The test is that decided on in Adams. In making his determination the Secretary of State is required to make a decision by applying the statutory test in accordance with the guidance in Adams to the facts of the particular case, which can include events which post date the quashing of the conviction in the event that further facts of relevance to the application of the statutory test arise. He may come to his own view, having regard to the terms of the CACD's judgment quashing the conviction, and provided the decision does not conflict with that judgment. The decision is then amenable to judicial review on conventional grounds of challenge, not merely because the court would have reached a different view. Save in exceptional circumstances, it should not be necessary for the court to engage in a detailed review of the facts.
28. It may be that in an extreme case, there is only one rationally correct conclusion as to the result of the application of the statutory test …But the existence of such exceptional cases is not determinative of the nature of the court's role in all cases …It also does not mean that the Secretary of State's decision is amenable to challenge by judicial review on anything other than ordinary public law principles.”
Discussion
The question is whether the Secretary of State’s decision to refuse the claimants’ claim for compensation was unlawful on public law grounds. In my view, it is clear from the material set out above, that it was not. The Secretary of State’s decision letter set out the correct legal principles, as propounded in Adams and Ali, I do not consider his decision was vitiated by any public law error.
The claimants’ case in substance is put in two ways: either that the decision of the prosecution not to proceed with the prosecution by offering no evidence, means that the Secretary of State is bound to conclude that the Category 2 test as formulated in Adams is satisfied, which is how the matter was put in the amended application for compensation; or, as argued before us, that if the judge would have concluded it was abuse of process for the case to continue, then it follows that an award should be made.
In my view, both of those formulations involve an erroneous articulation of the relevant legal test. The test is not whether there is a realistic prospect of a conviction; nor is it the test that would be applied on a submission of no case, or to stay the claim as an abuse. As Mr Strachan QC for the Secretary of State submits, the difference is not a matter of semantics, but one of principle and importance, which fundamentally affects the way the Secretary of State should apply section 133 of the CJA 1988. Although the difference (between the Category 2 test and the prosecutorial decision not to proceed) is recognised in the claimants’ skeleton argument, I think Mr Strachan is right to say that the claimants’ real position is there is no practical distinction between them.
I also think that this claim demonstrably seeks to draw the Secretary of State into the very role that the decisions in Adams and Ali have made clear he is not obliged to undertake in deciding cases of this kind, namely that of the trial judge.
After the hearing before us, Mr Jones QC for the claimants set out in writing in shorter form, the newly discovered facts on which the claimants rely in this case (they are referred to as part of his lengthy skeleton argument, where they are put into a much broader factual context). They are four of the categories of documents referred to in the CCRC reference: categories II, IV, V and VI; a defective schedule of “Operation Russia” documents; some further facts about defective disclosure at the trial (set out in Annex E to the applications); allegations made by Putnam and his wife in 2006 concerning a disclosure purportedly made in 1998 of corruption in the Stephen Lawrence murder investigation; further material relevant to the legality and fairness of the “resident informant” including evidence from Fleckney given in October 2011 of her treatment and breaches of Home Office guidelines and matters apparently showing that the bad disclosure regime was worse than known in 2010 (said to be relevant to the possibility of a fair trial in or after 2011).
I am bound to say that these matters, which have been set before us in detail, strike me as being grist to the defence’s mill, but no more.
The CACD in the second appeal knew that disclosure had been defective (and seriously so) - a view taken on the basis of the material unearthed after the seven year investigation leading to the CCRC reference, and the investigation between then and the hearing of the second appeal. It knew about Categories II, IV, V and VI. It also knew about matters concerning the legality and fairness of the operation of the resident informer scheme (a matter also looked at in some depth for the purposes of the first appeal). By the time of the second appeal, and for the purposes of the application for a retrial, it knew Putnam had “dropped out of the picture”, and that the prosecution no longer intended to rely on his evidence or call him. It knew too, of course, that Fleckney was at the outer limits of credibility. It was against that background that the CACD permitted counts 10 to 13 to go forward for a retrial, because it was satisfied that there was evidence against the claimants on those counts which emanated from other sources. On the ‘Guildford John’ counts, this included evidence from Cudworth himself, and from Armstrong; see para 27 above; and on the ‘Briar Cottage’ counts this included the evidence of Miss Rose, Mr Andrews, and various neighbours: see para 28 above.
The prosecutorial test as to whether to proceed or not, is not coterminous with that which the Secretary of State has to apply. In other words, the fact that the prosecution decided not to proceed with Fleckney as a hostile witness did not determine the section 133 question. As at that date, Fleckney could still have been called to give evidence as a hostile witness; and in my view, the Secretary of State was entitled to conclude that the assessment of her evidence, in the context of the other evidence, including the confessions made by the claimants, would have been a matter for the jury to consider at a retrial.
The CACD did not, as it said, rely on the claimants’ confessions for the purpose of its retrial consideration. Nor however did it say that the confessions were inadmissible. Instead, at para 65, the CACD indicated that the question of admissibility of those confessions would be a matter for the retrial. The prosecution’s position as to those confessions was clear: see para 43 above viz. there was nothing inherent in them that rendered them inadmissible; there were features which supported their truthfulness and it intended to adduce the confessions in evidence at any retrial.
The Secretary of State was obviously aware of the background and the submissions of the claimants, and his decision records that these were taken into account. His reasoning was shortly expressed; but accurately set out the key points relied on. It was neither unlawful nor irrational for the Secretary of State to make his decision on the basis of the continued existence of evidence on the charges which justified the retrial, and the confessions which might have been admitted into evidence; and to have reached the view in consequence, that the statutory test for granting compensation for a miscarriage of justice was not met.
In reaching that conclusion and for the purposes of his determination of the section 133 question, the Secretary of State was not required to engage in the sort of detailed analysis of the evidence which Mr Jones QC submits he should have done: see Adams at para 52, and Ali at paras 25 and 27. The arguments now advanced by the claimants might ultimately have persuaded a trial judge not to allow the case to go to the jury, or at the pre-trial hearing to stay the proceedings as an abuse, but that is nothing to the point.
There was undoubtedly some delay in reaching the decision. In a letter to Mr Jones dated 9 April 2014 the Secretary of State said the delay was caused in part because more information was sought from the CPS on their decision to offer no evidence at the retrial (the CPS response came in a letter dated 17 December 2013) and because clarification was awaited of the uncertainty as to the correct legal test caused by the Divisional Court’s decision in Ali.
It is also arguable that there was a procedural failing in not inviting the claimants to comment on the content of the letter from the CPS, and in not explaining the reasons for the delay. But these points take the claimants nowhere, as they did not cause any prejudice or lead to any substantive unfairness. There was no discrepancy between the reasons for discontinuing the claim given by the CPS in 2013 and those given to the court in 2011; and notwithstanding the delay, the decision was made under section 133 prior to its amendment, as it would have been if the decision had been made earlier.
Despite the undoubted effort and energy that has been expended in mounting these applications it is inevitable that any claims for compensation will fail. It is common ground that if the decisions made in March 2014 were to be quashed they would fall to be re-determined by the Secretary of State under section 133 as amended by the 2014 Act. It is not contended by the claimants that were such a re-determination to take place, their claims would satisfy the test of a “miscarriage of justice” in section 133(1ZA) of the 1988 Act. To this extent, there is no purpose in granting the relief asked for; and in my view, this is a further independent reason for refusing to do so.
Outcome
As it is, for the reasons given, I would dismiss these claims.
Mr Justice Blake
I agree that this application must be dismissed for the reasons given by my Lady whose judgment has set out the facts of this case and the applicable law.
It is clear from the authorities cited that the term miscarriage of justice within the meaning of the 1988 Act does not mean every person whose conviction has been found unsafe by the Court of Appeal Criminal Division on the basis of newly discovered facts outside the normal time limit for appeal. In my view, the authorities indicate that it is only if the newly discovered facts establish that the claimants would not or could not have been lawfully prosecuted that they will be able to demonstrate that they are a victim of a miscarriage of justice. A person who is acquitted at the first trial for whatever reason is not such a victim. In my judgment, neither is a person who is so acquitted after the case has been considered by the Court of Appeal to be appropriate for retrial after the newly discovered facts have been discovered. Here there was plainly a sufficient factual basis for a lawful prosecution after the previous failure of the disclosure process had come to light. The outcome of the retrial therefore depended on the view of either the judge or the jury as to the strength of the rival submissions of prosecution and defence as to abuse of process, admissibility and the cogency of the evidence as a whole. None of these submissions were determined because of the new circumstance of a prosecution witness turning hostile. That is one of the uncertainties of the trial process and does not of itself indicate that there has been a miscarriage of justice.
I also accept that now the law has changed and it is common ground that if we had been persuaded of any flaw and any further consideration of the new application would have applied the test under the 2014 Act , there would have been no point in making a quashing order requiring such a reconsideration. Any relief granted would, therefore, be limited to a declaration. Here Mr Jones accepts that the claimants could not meet the requirements of the 2014 Act. It is not necessary to consider how far the legal principles under the 1988 Act carry over to the 2014 Act. It may turn out that the law has been clarified rather than completely reformulated. No acquittal or decision to abandon a prosecution amounts to a certificate of innocence. Everyone is presumed innocent unless proved guilty following a lawful prosecution. If the newly discovered fact demonstrates that there would not or could not have been a lawful prosecution, compensation would therefore be payable on the same basis as under the 1988 Act. Under neither Act is it sufficient that a person happens to be acquitted of the offence for one reason or another in the course of a lawful prosecution.
APPENDIX
1. Category I. Papers relating to an allegation that Putnam had been involved in the theft of bearer bonds. These were not disclosed at trial, though they were available, but were disclosed just before the appeals in 2001.
2. Category II, IV, V and VI. Papers and information implying or suggesting that Fleckney and Diane Morris colluded together to concoct a false criminal allegation against Robert Clark and DC May in the course of interviews which they believed they would have, and which they did in fact have, with the investigating officers.
Individually, these four categories are:
(a) Category II. 177 pages of ‘Operation Ipswich” material (the codename attached at some point to the CIB3 investigation into May and Clark, which was closely associated with “Operation Russia”). The pages were not disclosed at trial but the [prosecution] contends that it was intended to disclose them; they contain:
Statements and interview notes of Fleckney and Morris relevant to their allegation against both Clark and May;
2 pages of notes of Superintendent Jarratt with Morris in 1998;
Letters to or from Fleckney and Morris;
(b) Category IV. Statements from a Prison Officer… reporting that Morris had said she was going to “stitch up” DC May;
(c) Category V. Information form [E] that Morris and Fleckney met in prison and concocted evidence against May (and, it must follow, Clark). This was not disclosed because at a PII hearing the judge held that it was not “relevant”;
(d) Category VI. The fact that Mr Fleckney and Morris had had “welfare” telephone calls while detained at police stations as “resident informants” in connection with this investigation, after they had been together in Holloway Prison.