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

On 3^rd July 2015 the claimant commenced judicial review proceedings in relation to two decisions that were reached in respect of his case by the Criminal Cases Review Commission. In the first decision dated 19^th February 2015 the defendant refused to refer his case back to the Court of Appeal. In the second decision dated 30^th March 2015 the defendant determined, in the light of the fact that this was the third unsuccessful application made to them by the claimant, that the defendant would not accept any further reapplication from the claimant unless submitted to them through a legal representative who had identified a compelling and substantial ground or grounds to justify the submission of the application. Permission to apply for judicial review was refused on the papers by Stewart J on 5^th October 2015 and this is an oral renewal of that refusal.

The background, in brief, to the claimant’s case is that on 20^th January 1998 at the Central Criminal Court the claimant was convicted of the murder of Patrick Tate, Anthony Tucker and Craig Rolfe and also conspiracy to import cannabis. He appealed against these convictions unsuccessfully in 1999 and his case was later again referred to the Court of Appeal who dismissed this subsequent appeal in 2006. Following the dismissal of that appeal the claimant reapplied to the defendant for reconsideration of his case and it was concluded by the defendant that his case should not be referred back to the Court of Appeal. The claimant judicially reviewed that decision and permission was refused following an oral renewal in that case on 6^th February 2013.

On 30^th December 2014 the application which is the subject of these proceedings was made and, as set out above, it was rejected by the defendant on 19th February 2015.

In their response to the judicial review proceedings the defendants raised the question of delay. They contend that this claim has been brought out of time on the basis that when it was commenced on 3^rd July 2015 this was beyond the three month time limit in respect of both of the decisions which were reached. In response to this contention the claimant raises two issues. Firstly, he contends that as an inmate in a high security prison he faces considerable administrative and logistical difficulties in compiling the extensive paperwork necessary to launch proceedings of this kind and also in obtaining the advice from his McKenzie friend necessary to enable him to bring his case. Secondly, he contends that in fact in relation to the second decision his papers were submitted to the Administrative Court within time but were returned to him on the basis that he had not provided sufficient copies of the bundles. That meant that he had to undertake that further work and then resubmit his claim but in principle he contends that in relation to the second decision his claim was brought in time. I accept the explanations provided by the claimant and can understand the logistically restraints placed upon him by his status as a prisoner in a high security prison in bringing an action of this kind. In the circumstances I would not decline to consider this application based solely on the relatively limited delay that has occurred in the issuing of these proceedings. I turn therefore to consider the merits of his application.

The Criminal Appeal Act 1995, having abolished the power of the Secretary of State to refer cases for consideration by the Court of Appeal, created the defendant and empowered it by section 9 to refer to the Court of Appeal the conviction of any person convicted of an offence on indictment in England and Wales. The conditions for making such a reference are specified in section 13 of the 1995 Act as follows:

“13 (1) A reference of a conviction … shall not be made under any of sections 9 to 12 unless—

(a)

the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,

(b)

the Commission so consider—

(i)

in the case of a conviction … because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

…

(c)

an appeal against the conviction … has been determined or leave to appeal against it has been refused.

(2)

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.”

It will be apparent from section 13 that the discretion to refer cases to the Court of Appeal provided to the defendant depends, in the absence of exceptional circumstances, upon the identification of new arguments or evidence which had not previously been raised in either the original criminal proceedings or any appeal or application for leave to appeal related to it. The identification of new arguments or evidence is therefore a vital precondition for the exercise of the power allied to that new argument or evidence providing the real possibility that the conviction would be quashed. It is against the background of those legal parameters to the discretion that the claimant’s Grounds must be considered.

In Ground 1 the claimant raises a range of concerns in relation to the telephone evidence which was relied upon at his trial in order to link him to the murders. The first issue raised is that on 15^th January 1996 police officers compiled a chart setting out “all phone calls for 6^th December 1995” which was the date on which the murders were committed. On the cover sheet of the schedule readers are instructed to “ignore all versions prior to 15^th January 1996”. Two key points are raised by the claimant in relation to this schedule. Firstly, he contends that there is no trace of any court order or any lawful means whereby this data as to telephone usage was obtained. That he contends was unlawful. Secondly, he draws attention to a witness statement from a Mr Collins dated 18^th July 1996 who was at that time a BT manager and who in the course of that statement furnished a variety of BT records relating to the various numbers which form part and parcel of the prosecution telephone evidence. The claimant draws attention to the fact that there are anomalies between the statement provided by Mr Collins and the spreadsheet database compiled by the Police and said to be founded on Mr Collin’s telephone information. In particular, and by way of example, the claimant draws attention to Mr Collin’s statement in which he indicates that a telephone number ending 332 was discontinued on 27^th November and the spreadsheet database that shows that that number was in fact used to make 111 calls between 27^th November and 7^th December.

A further concern which is expressed by the claimant in relation to the telephone material is that the schedules which have been referred to above were compiled in the form of a database from the evidence produced by Mr Collins on behalf of BT and were capable of manipulation and corruption. The claimant submits that once the raw call data was compiled into a new document in a word processing format it was capable of being manipulated and thereby misleading the jury. If a computer file was to be generated, it is submitted, it ought to have been in the form of, for instance, a portable document or pdf file so that it could not be further edited or changed. In support of this contention the claimant relies upon an email dated 22^nd October 2012 from Mr Collins in which police schedules are “not consistent with how BT records were produced at this time”. He also refers to a statement which he states exists from another and different Mr Collins from another phone service provider which, although he was unable to produce it, was to like effect.

In dealing with these submissions it is important to note, as set out above, the provisions of the 1995 Act that are being applied by the defendant and against which this review is proceeding. It is necessary to demonstrate not only that the argument or evidence is new, but also that it gives rise to a real possibility that the conviction would not be upheld. In relation to contentions with respect to the telephone evidence which was placed before the jury it is necessary to note, firstly, that the nature and extent of the telephone evidence was considered in great detail in the decision reached by the defendant on 21^st February 2012 that included criticism’s raised on a variety of bases by the claimant of the telephone evidence including at paragraphs 212-215 submissions that the telephone evidence had been tampered with. At paragraph 215 the defendant concluded:

“215.

It is clear, therefore, that Essex Police were in possession of telephone data before any formal requests were made. However, the commission has seen no evidence that Essex Police sought to disguise the fact that data had been provided prior to a formal request or that the data initially provided was not the same as that which was provided pursuant to the subsequent formal request. It follows that there is no basis on which this issue might form the basis of a referral to the Court of Appeal.”

The decision of the 21^st February 2012 was itself the subject of a judicial review by the claimant in which several of the Grounds raised related to criticisms of the telephone evidence that had been deployed. Each of those Grounds were dismissed. It is fair to observe that firstly those Grounds were not precisely the same as the Grounds which I have recorded above and, secondly, that the evidence of the email from Mr Collins (or the other Mr Collins) was not available. That said I am not persuaded that it is arguable that the arguments which the claimant has raised, even were they new arguments, give rise to any real possibility that the conviction may not be upheld and thus in my view it cannot be contended even arguably that the decision which the defendant reached in this case to not refer the matter further was lawful. The provenance of the telephone evidence and the fact that it had been converted into a database was clear and known at the time of the trial. The fact that it was possible to manipulate the database because of the form of computer file it was in does not mean that it was, or that as a form of evidence it was unlawful. In the light of this and the earlier findings of the defendant and the courts in my view the evidence of both Mr Collins referred to (accepting what the claimant says at face value about the second Mr Collins) adds little to the substance of the claimant’s case. In my view this Ground is not arguable.

Ground 2 raised by the claimant relates in particular to the use of a mobile phone having the final three digits “316” in its number. The telephone evidence was of particular significance to the conviction of the claimant because it was relied upon by the prosecution to determine the time of the victims’ deaths. In the absence of any scientific evidence to demonstrate the time of the deaths the prosecution depended upon the testimony of the witness Darren Nicholls and the itemised billing material to show that these two pieces of evidence supported the murders occurring between 18:44 and 18:59. At pages 20-21 of the claimant’s Detailed Statement of Facts he has compiled a schedule of the calls made from mobile phone “316” including (identified in blue and orange) calls which were not included within the telephone schedules referred to above. He contends that mobile phone “316” was used by one of the murder victims, Mr Tate. The schedule shows a mobile phone call being made on the night of the murders from that mobile to a Ms Fletcher’s home at 21:41, Ms Fletcher being a girlfriend of Mr Tate. The claimant relies upon this as clear evidence which was not placed before the jury that contrary to the prosecution’s case calls were in fact being made by one of the murder victims some considerable time after it was the prosecution case that he had been killed.

In their decision of 21^st February 2012 at paragraphs 114-118 the defendant considered this contention but rejected it on the basis that there was no evidence to establish that Mr Tate had mobile telephone “316” in his possession on the evening of 6^th December 1995. Various aspects of the evidence are relied upon to support the contention that in fact mobile telephone “316” was that night in the possession of Ms Fletcher. It is important to note that this point also featured in the application for judicial review of this earlier decision which was rejected by the Divisional Court. At paragraphs 11-16 of the judgment of Fulford J (as he then was) he concludes that it was not arguable that this material satisfied the statutory test and that the claimant’s contentions were “at best wholly speculative”.

Although further contentions have been made in the context of this application in truth the substance of the claimant’s case is the same. The claimant contends that the findings of the defendant in relation to the question of who was in possession of mobile phone “316” is speculative. He draws attention in the Detailed Statement of Facts to the attribution of the phone to Mr Tate prior to the arrest of the principle prosecution witness Darren Nicholls. He relies upon the detailed schedule of the calls from mobile phone “316” which he has compiled to contend that the phone was being used by Mr Tate. He notes that it was after the arrest of Darren Nicholls that schedules were compiled which excluded the call at 21:41 and placed that evidence in unused material.

Whilst there are details or nuances of the argument about the phone call at 21:41, having reviewed the earlier decision of the defendant on 21^st February 2012 and the subsequent judicial review I am satisfied that in substance this question has been previously examined and the conclusion has been reached that it does not pass the threshold for review to the Court of Appeal. Again, having scrutinised that material I am satisfied that that conclusion was accurate in so far as it was one which was properly open to the defendant and which was reached without legal error in the form of Wednesbury unreasonableness or other legal flaw. I do not therefore consider that there is a basis to grant permission in relation to Ground 2.

Turning to Ground 3 the substance of the claimant’s contentions in this respect are that the testimony of Darren Nicholls was unreliable. It is undoubted that the claimant’s conviction rested as Maurice Kay LJ observed in the 2006 Court of Appeal decision, on Darren Nicholls’ evidence. He noted in the judgment at paragraph 12 “there could have been no conviction unless the jury were sure about Mr Nicholls’ evidence.” Darren Nicholls gave evidence for 13 days and was the subject of extensive cross-examination on behalf of both the claimant and his co-accused. It has throughout been the claimant’s case that the evidence of Darren Nicholls’ was a pack of lies.

Various arguments have been raised in previous proceedings as to why Darren Nicholls was lying. The particular focus of the challenge in the present case (which proceeds on a narrower basis to the application which was made earlier by the claimant to the defendant which ranged over a number of aspects) relates to the existence from February 1996 of a covert police operation known as “Operation Century” which was investigating drug importation. In particular the detailed contention of the claimant is that within Darren Nicholls’ evidence he deployed Operation Century as a source of finance for an alleged importation of cannabis in November 1995 and a suggested motive for the murders on 6^th December 1995. The claimant submits that that could not possibly be the case bearing in mind when the operation commenced, which was significantly later. Further attention is drawn by the claimant to the exclusion from Darren Nicholls’ witness statements, compiled by DC Winstone, of any reference of Operation Century. Finally it is contended that Sarah Saunders, who was also a target of Operation Century, alleged that she had overheard one of the murder victims, Mr Tate, speaking to Operation Century operatives on the telephone in November 1995 some months prior to it having commenced. All of these matters it is contended by the claimant are new features of the case which were not explored at trial and which were inappropriately rejected by the defendant.

In the defendant’s decision reliance is placed upon paragraph 176 of their review in 2010 in which it was pointed out that transcripts of the Operation Century telephone calls were disclosed to the defence at trial and Detective Chief Superintendent Barrington and Detective Inspector Florence were cross-examined about the involvement of Operation Century. Furthermore it is pointed out that the suggestion that material from Operation Century was illicitly supplied to Darren Nicholls and then incorporated into his testimony was another issue explored during the course of Darren Nicholls at the trial. Additionally in the defendant’s decision they draw attention to the fact that the transcript of Sarah Saunders’ evidence at the trial does include an attempt to explore issues concerning Operation Century which was the subject of objections by prosecution counsel and then exclusion by the Judge.

I accept that the issues raised in relation to Operation Century in this case were not directly addressed by the Court of Appeal in their judgment in 2006. Nevertheless it is clear to me that the issues now raised were the subject of consideration during the earlier 2010 review of the case and were not successfully challenged. In my view the conclusions that were reiterated in the decision of 19^th February 2015 in the decision of the defendant were conclusions which were entirely open to it and were not tainted with any kind of illegality. Furthermore, in so far as the broad allegation of collaboration between Darren Nicholls and DCs Brown and Winstone were concerned, that was a matter which was assessed by the Court of Appeal at paragraph 35 of the 2006 judgment and rejected. Again, bearing in mind the nature of the statutory test set for the defendant the conclusion that the issues identified above and within the Detailed Statement of Facts did not amount to new issues which brought with them a prospect of a conclusion that the convictions were unsafe. The correct test was applied, the considerations material to the decision were examined, adequate reasons for the decision were given, and the conclusion reached was on which was open to the defendant on the material before it.

It follows that whilst I obviously appreciate the deeply held feelings of injustice which clearly still trouble the claimant, the task which I have is a narrow one focused on seeking to identify whether there has been any public law error in the decision which the defendant has reached. As has been emphasised in the authorities (see in particular R v CCRC ex parte Pearson [1999] 3 All ER 498) the decision as to whether or not to refer a case back to the Court of Appeal is clearly, in the light of the statutory language employed in the 1995 Act, a question of judgment for the defendant. It is not the task of the court to retake the decision or exercise the judgment afresh. The question is whether or not in reaching the judgment which the defendant has there is any error of law in terms of a decision which is perverse or irrational or which has, for instance, failed to take account of a material consideration or taken into account a consideration which is immaterial. It is on the basis of these traditional grounds of public law articulated in the Wednesbury case that the exercise of the judgment has to be assessed. For the reasons which I have set out above I am entirely satisfied that there is no arguable error of law, assessed within the narrow compass of the error of law jurisdiction, which is evident in this case.

Ground 4 is a separate matter pertaining to the decision of 30^th March 2015 whereby the defendant decided that it would not accept any further reapplications from the claimant “unless submitted through a legal representative who must identity compelling and substantial grounds to justify acceptance of the application”. The claimant contends that such a decision is contrary to the defendant’s own pro forma which describes the form as being “for anyone who wants us to review a conviction or sentence that they think is wrong”. He also alleges that the decision is in breach of Articles 6, 13 and 14 of the ECHR. These are submissions which are simply unarguable.

The history of this matter discloses that not simply has the claimant had his case reviewed on several occasions and at length, critically in the application which is presently the subject of this judicial review for the reasons which I have set out above many of the matters which have been raised by the claimant have been previously considered and rejected. The defendant has limited resources and it must of necessity be a misuse of those resources for them to be deployed reinvestigating points that they have previously considered and rejected in an applicant’s case. There is thus nothing therefore in my judgment in principle wrong with the defendant concluding in a particular case, where there have been iterative applications on the same basis, that there should be no further applications unless a legal advisor makes clear that the application proceeds on the basis of new and compelling grounds of substance. The nature of the decision does not deprive the claimant of an effective remedy nor does it discriminate against him or fail to afford him a reasonable opportunity to present his case. It is still open to the claimant to make a further application. The safeguard which the defendant has brought into his case is that any such application must have the endorsement of a legal representative that it contains compelling and substantial grounds. Once that endorsement is obtained then the review will be able to be considered. The defendant is entitled to reach such a decision in the light of the need for it to carefully husband its own resources and there is in my judgment no unfairness in it reaching such a decision. I therefore, as set out above, regard Ground 4 as being unarguable.

For all of these reasons I am satisfied that the claimant’s case is unarguable and this application for permission to apply for judicial review should be dismissed.