Garner & Ors, R. (on the application of), R. v [1999] EWHC Admin 320 (19th April, 1999)

1. There are before the court 5 applications for judicial review, each brought with leave of a single judge. They have been heard together because each challenges a refusal by the Home Secretary to award either compensation under s 133 of the Criminal Justice Act 1988 or an ex gratia payment in accordance with the Home Secretary’s Statement to the House of Commons on 29th November 1985. The Statement sought to implement the U.K.’s obligations under Article 14.6 of the International Covenant on Civil and Political Rights to provide compensation in cases of wrongful conviction. S 133 provides, so far as is presently relevant, 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 or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, 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 or, if he is dead, to his personal representatives, unless non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

Thompson was a chartered accountant and managing director of Blackspur Leasing PLC. In June 1994, following a 3 month trial at Maidstone Crown Court, during which he gave evidence for 5 days, he was convicted of three separate conspiracies to defraud and sentenced to 3 years imprisonment. On 17th February 1995, after he had spent almost 9 months in prison, the CACD allowed his appeal and quashed his conviction because the judge had not adequately put the defence in the summing-up. No re-trial was ordered. The CACD said (judgment 28E) there was a strong case against him. He applied for compensation in July 1995 and this was refused in January 1996 on the grounds that a trial judge was not a public authority, the applicant had not been completely exonerated, the consequences of conviction were not generally considered in relation to whether compensation should be paid and the Home Secretary’s general policy was not to compensate for judicial errors corrected on appeal . He re-applied in July 1997 on the ground that the defects in the judge’s summing-up had deprived him of a fair trial in breach of Article 6 of the ECHR and there was a breach of the compensation requirements of Article 5. By letter dated 1st December 1997 this application was refused on the grounds that there was no statutory entitlement under s133 and there were no exceptional circumstances justifying an ex gratia payment. In particular “public authority does not encompass members of the judiciary and so judicial errors are regarded as falling outside the scope of that part of the 1985 statement dealing with serious default”. There had been no breach of Article 5 or 6. As the appeal had been successful, the charge against the applicant had been determined fairly “in the context of the proceedings as a whole”. Edwards v UK 15 EHRR 417 was referred to.

Tawfick , in a trial at which he represented himself, was convicted, in July 1996 at Middlesex Guildhall Crown Court, of conspiracy to steal and sentenced to 12 months imprisonment. In December 1996, after he had spent almost 5 months in custody, his conviction was quashed by CACD on the grounds that the trial judge had made extremely damaging observations about the defendant and had failed to sum up adequately. In March 1997 the applicant claimed compensation. In a letter dated 15th April 1998 the Home Office refused, on the basis that the requirements of s133 were not met because there was no new material; in relation to an ex gratia payment “public authority” did not extend to the judiciary, the applicant had not been completely exonerated and the consequences of wrongful conviction affected the amount of any payment not whether one should be made.

Garner was convicted, at Preston Crown Court on 10th December 1991, of conspiracy to steal motor cars and sentenced to 4½ years imprisonment. He did not attend his trial. The trial judge ruled that this absence was deliberate and his lawyers withdrew from the case during the trial. On 7th January 1992, he applied for leave to appeal against conviction and sentence and absconded from custody. On 22nd April he was re-arrested and in September submitted further grounds. On 5th November 1992 the single judge refused leave and also purported to refuse an extension of time which the Registrar at the Criminal Appeal Office had wrongly indicated was necessary. He renewed his application in time and the Full Court, on 10th December 1993 refused an application for an extension of time without considering the merits of the substantive application. In April 1996 the Home Secretary referred the case back to the CACD to consider whether, on the substantive merits, leave would have been granted. The Full Court granted leave on 29th November 1996 and, on 4th March 1997, quashed the conviction because the judge had improperly invited the jury to infer guilt from the defendant having run away. The court accepted that there was a wealth of further evidence against the applicant. No retrial was ordered. In June 1997 the applicant sought compensation. On 18th August 1997 the Home Office refused on the basis that there was no new material within s133 and that the error by the Criminal Appeal Office, although resulting in the applicant spending longer in custody, had no bearing on the safety of his conviction and therefore did not amount to serious default. Furthermore “public authority” did not include members of the judiciary and the applicant had not been completely exonerated. In a further letter on 21st October 1997 the Home Office repeated that there was no new material within s133 and administrative error did not amount to serious default.

Taylor was convicted, with 6 others, at County of London Sessions on 9th February 1962, of breaking out of a building having committed a felony and sentenced to 5 years imprisonment. There was a lesser alternative count of being an accessory after the fact. The prosecution case was that 5 others had stolen a safe and taken it to the flat of a 6th man, where there was oxyacetylene equipment and Taylor was sleeping. When the police arrived soon afterwards Taylor, in his underclothes, let them in. The 5 others were there fully dressed. According to the police, Taylor admitted helping to carry the safe into the flat and did so in the presence of 3 police officers and the 6 other men in a hallway 9 feet to12 feet wide. Taylor denied making any such admission and his defence was that his presence at the flat was innocent and solely due to sleeping off the effects of the previous night’s drinking. He conducted his own defence, unrepresented. In December 1962 the Court of Criminal Appeal refused leave to appeal. On 18th June 1998, following a reference by the Criminal Cases Review Commission the CACD quashed his conviction. They did so having heard evidence from a man called Ewing who was one of the 5 men and who had pleaded guilty, and from Irene Tenga the 6th man’s girl friend who was staying with him in the flat. The court also received affidavits from two other women. This fresh evidence was proffered to provide confirmation of Taylor’s account of his movements on the crucial evening. The court concluded that it did not assist the appellant as to the events in the flat once he had gone there but that Miss Tenga’s evidence and the affidavits from the other women supported Taylor’s case that his presence at the flat was the fortuitous consequence of his drunkenness and not of any intention to see the flat owner. This might have led the jury to a different verdict on the count on which they convicted, although it might not have resulted in the appellant’s acquittal on the alternative count of being an accessory after the fact.

5. The court rejected the contention that there was insufficient evidence for the jury to consider. But they concluded, with considerable hesitation, that the applicant may not have had a fair trial, because lack of representation impaired the effectiveness of cross-examination of the police officers as to the making up of their notebooks and the width of the hallway (said to be only 4 feet) and final submissions and may also have been responsible for the absence of evidence on Taylor’s behalf from the women to whom we have referred. It was common ground between prosecution and defence that the court should not be invited to substitute a conviction on the alternative count.

Carter was tried at Cardiff Crown Court in June 1992 for the murder of his 5 month old son, who had died from a sub-dural haemorrhage caused by a head injury. The principal evidence against him came from his common law wife Ms Dite who claimed to have heard a thud when he was attending the child. She had made 7 inconsistent statements. Carter, in interview, consistently denied any offence. On the second day of the trial, during Ms Dite’s evidence, the charge was reduced to manslaughter. On day 6, the prosecution informed the defence that they had just received the social services file on Ms Dite which seriously compromised her credibility. Accordingly, there was no reliable evidence and the judge directed the jury to acquit.

7. The applicant suffered clinical depression while in custody, became dependant on anti-depressant drugs and spent time in a detoxification unit and nursing home. In July 1996 he claimed an ex gratia payment on the basis that the police had failed properly to investigate Ms Dite’s veracity. By their letter of refusal dated 20th November 1997 the Home Office said there was no serious default on the part of the police or other public authority: “normally such conduct will be manifested by some deliberate or seriously negligent act.... From a careful examination of the material available to us we find no suggestion of any such default”; it was not conclusively established that the applicant had not committed the crime and the consequences to the applicant were relevant to the amount of compensation, not to whether compensation should be paid. On enquiry by the applicant’s solicitors as to the material available to the Secretary of State, the Home Office referred to “a comprehensive report provided by the South Wales Constabulary” and the absence of any report from the CPS “despite an exhaustive search” for the relevant file and said there was “no reason to suppose that any material the CPS might have been able to provide...would have differed significantly from that contained in the police report”. The Police Report was that sent to the DPP before trial. It referred to contact between Ms Dite and the social services for advice about adoption before the child was born, the placing of the baby into voluntary care of the social services immediately after birth and regular monitoring by the social services thereafter.

8. Miss Dinah Rose, on behalf of Thompson, in submissions adopted by counsel on behalf of all the other applicants, accepted that the Secretary of State is entitled to rely on authorities, which also bind this court, which hold that a judge is not a public authority whose serious default can give rise to compensation under the first part of the Statement (see, for example, ex p. Howson 2nd November 1984, ex p. Harrison 1988 3AER 86 at 89e and R v SSHD ex p. Bateman & Howse Div. Ct 5th May 1993): though she reserves the right to argue the matter at a higher level.

9. She submitted, first, that exceptional circumstances, under the second limb (third paragraph) of the Statement, are not limited to complete exoneration, which is but one example of such circumstances. There is a general discretion to compensate in exceptional circumstances. In that the Secretary of State demonstrates unwillingness ever to award compensation in relation to judicial conduct, he is unlawfully fettering his general discretion in relation to exceptional circumstances. She submitted that the internal Home Office guidance in relation to ex gratia payments, (bundle 128-9), in stating that ex gratia payments are exceptional, wrongly suggests that an applicant must show an exceptional case as well as serious default in order to recover under the first limb (second paragraph) of the Statement and that judicial misconduct resulting in an unfair trial cannot be considered under the second limb. This has led to a general policy not to compensate for judicial error demonstrated by the decision letter and the affidavit of Jill Rice for the Home Office in the present case, both of which notably fail to say that such judicial error can give rise to compensation as an exceptional circumstance and neither of which will bear the construction that judicial error may be considered under the 2nd limb. Indeed, the examples given in paragraph 10 of Mrs Rice’s affidavit, which both contemplate default in addition to judicial error, imply that judicial error alone is an inadequate basis for compensation. Further, it is significant that, when the applicant’s solicitors raised questions in relation to the ECHR, claiming a lacuna in relation to judicial misconduct, the response did not suggest that this might be covered by the second limb. Miss Rose submitted that it is accordingly apparent that the Secretary of State has wrongly fettered his discretion, in that judicial error is automatically excluded as a basis for compensation. There is no evidence to support the Respondent’s contention that even the most outrageous judicial conduct can give rise to compensation: in any event, serious default by a judge, as by anyone else in the criminal justice system, ought to suffice and the Secretary of State’s approach directed to outrageous conduct is therefore irrational.

10. Secondly, Miss Rose submitted that the Secretary of State is wrongly fettering his discretion by refusing to have any regard (as it is common ground he does not) to the consequences of conviction when deciding whether there are exceptional circumstances under the second limb of the Statement. She accepts that it will only be in very rare circumstances that consequences have a material effect, but the Secretary of State ought to be willing to consider whether exceptional consequential harm can give rise to exceptional circumstances. She referred to ex p. Venables 1997 3AER 97 at 121e where Lord Browne-Wilkinson referred to the flexibility to have regard to relevant circumstances as providing the flexibility to render the tariff policy lawful.

12. Fourthly, Miss Rose submitted that a judge’s failure to put the defence deprives a defendant of a fair trial contrary to Article 6(1) of the ECHR. She referred to Kraska v Switzerland 18 EHRR 188. In Donnelly 4 DR 4 at 78 the Commission referred to the provisions of Article 13, requiring an effective remedy, and said that the possibility of compensation is likely to be the only means of redressing a wrong. (It is to be noted that this was in the context of a violation of Article 3 which relates to torture and inhuman punishment). As to the decision letter’s reliance on Edwards, there was a failure to consider the crucial factual question of whether the quashing of the conviction remedied the unfairness of the original trial. She referred to Adolf ECHR 26 March 1982 as affording no support for the proposition that the availability of an appeal process would of itself, remove unfairness. (It is to be noted that that case was concerned with a claim by a victim under Article 25 who had been found guilty without an opportunity to state his case). Miss Rose also referred to Findlay v UK 24 EHRR 221 where it was held that fundamental flaws in the court martial system precluded the first instance tribunal from being independent, in breach of Article 6(1). The review procedures did not remedy this. Miss Rose submitted that, in the light of these authorities, the Secretary of State misunderstood the meaning and scope of Article 6 in concluding that there had been no breach of Article 6: there was an unremedied breach in the absence of any power in the Court of Appeal to award compensation.

13. For Tawfick, Mr Yell additionally submitted that the trial judge’s damaging remarks suggesting the applicant was a liar and a cheat gave rise, when added to the deficiencies in the summing-up, to exceptional circumstances under the second limb of the Statement, whereby the applicant spent nearly 5 months in prison before his conviction was quashed and he suffered post traumatic stress disorder. The Court of Appeal did not regard the judge’s comments as excusable. The defence was that the applicant came on the scene after the theft had been committed and there was a serious issue as to whether the allegations against him had been fabricated by prosecution witnesses. In breach of Article 6(1) he did not have a fair trial. Bias by the judge violated the presumption of innocence under Article 6(2). The Secretary of State’s policy, in requiring complete exoneration, violates the presumption of innocence and implies too high a standard when compared with the requirement of Article 14.6. He relied on passages at page 616 and 618 in Harris, O’Boyle and Warbrick’s Law of the ECHR in support of the proposition that an adequate remedy is one which provides redress. The Secretary of State fettered his discretion and/or behaved irrationally in not regarding the judge’s misconduct or the quashing of the conviction as giving rise to exceptional circumstances. Neither in the decision letter nor in Mrs Rice’s affidavit in Tawfick’s case is there any suggestion that judicial error is considered under the second limb. He submitted that no rational person could conclude that the judge’s conduct did not give rise to exceptional circumstances.

14. For Garner, Mr Staddon additionally submitted that “it” in the final clause of the second paragraph of the Statement refers to the period in custody rather than to the conviction and that the judge’s conduct “makes it a little bit more than a case of judicial error and nearer to outrageous”. He referred to a passage in ex p. Bateman & Howse CA 17 May 1994 in the judgment of Sir Thomas Bingham MR at 13E of the transcript as supporting his construction of “it”. In our judgment that passage is entirely neutral and lends no such support. Although Mr Staddon accepted that, on the current state of the authorities, the Registrar is properly to be regarded as a judge outwith “public authority” in the first limb of the Statement, he was critical of several passages in Mrs Rice’s affidavit in Garner’s case, in particular her claim that the administrative error did not give rise to serious default and the suggestion that delay in hearing the appeal was due to the applicant absconding. As to delay, the applicant’s absence had contributed only 6 months to the 4½ year period. He sought, by amendment to Form 86A with leave, to rely on the ECHR convention points to which we have already referred plus the additional feature, said to be in breach of Article 6(3)(c), that he was unrepresented at trial.

15. For Taylor, Mr Hill-Smith additionally relied, first, on s133. Although the Court of Appeal rejected the submission that there was no case to answer, they admitted fresh evidence which they held supported the defendant’s case as to his fortuitous presence at the flat and as to the width of the hallway where an admission was said to have been made. This new evidence constituted new facts for the purpose of s133. A miscarriage of justice is anything which shows the conviction is unsafe and s133 does not require the higher standard of complete exoneration to which the ex gratia scheme refers. The decision letter failed to recognise that the Court of Appeal had relied on new evidence. Louise Douglas’s Affidavit for the Respondent was wrong in law: first, in relying, in paragraph 6, on the Court of Appeal’s reference to possible guilt on the alternative accessory count; and secondly, in paragraph 8, in distinguishing between facts and evidence. Reasons should have been given in relation to s133 in the light of the new facts before the Court of Appeal. As to the ex gratia scheme, there was a failure by the Respondent to consider whether there was serious default by the police despite the Court of Appeal’s concern about the concurrence of the officers’ notebooks. Negligent default can be serious default: he referred to the judgment of Collins J in ex p. Sheffield & Brook (transcript 7th October 1997). The consequences of conviction for this applicant were particularly grave and the Secretary of State should have concluded that the applicant, having been convicted in 1962, had been let down by the appeal procedures throughout his life. His conviction had not been routinely overturned. In the words of paragraph 3 of Louise Douglas’s Affidavit “the normal machinery of justice has demonstrably failed” this applicant.

16. For Carter, Miss Genn additionally submitted that, from the outset, the police were on notice that social services had been involved. That department’s file had always been in existence but was never examined by the prosecution authorities until the 6th day of his trial when it destroyed Ms Dite’s credibility and therefore the case against the applicant. The Home Office internal guidance, paragraph 9, wrongly cited complete exoneration as the only example of what might be exceptional. The decision letter, 18 months after the application, asserted that there was “no suggestion of serious default” but made no reference to what material had been considered. The police report, identified by the respondent following enquiry by the applicant, did not deal with why the social security file had not been looked at previously and was clearly not, as the respondent claimed, comprehensive. Furthermore, the issue was not, as the respondent claimed, disclosure, but inadequate investigation of Ms Dite’s credibility. It was not correct for Mrs Rice to claim in paragraph 10 of her Affidavit that the police report merely showed contact between Ms Dite and the social services and paragraph 12 of that Affidavit showed no acknowledgement of the dramatic impact on the trial of the file’s production. Further, the treatment of complete exoneration in paragraphs 12 and 13 was irrational both in failing to recognise the impact on the trial and in seeking to rely on other material which did not begin to establish the applicant’s guilt. Further, by amendment permitted by the court without objection, Miss Genn further submitted that there was procedural unfairness in not asking the applicant to comment on the police report. The consequences for the applicant of being charged are extreme: he was for example, isolated in custody as a child killer, handcuffed at the baby’s funeral and not permitted to carry the coffin. Such consequences should have been considered. Although the Respondent’s decision was administrative, for which reasons would not generally be necessary, in view of the gravity of the loss of liberty and the serious, albeit not gross, default in the investigation process, proper reasons should have been given. Miss Genn relied on ex p. Bugdaycay 1987 AC 515 at 531F and 537H and ex p. Doody 1994 1AC 531 at 560D-G, 561C-D and 564E-H. Finally, Miss Genn submitted, there was over-arching irrationality resulting in a bizarre decision reached by taking into account the irrelevant and prejudicial police report without making any enquiry about the conduct of the police investigation.

18. As to cases of judicial error, Mr Sales submitted that they are not excluded from consideration but a high standard of exceptionality is applied and such an approach is rational. Cases of judicial error rendering a conviction unsafe will be serious and unusual. The respondent is entitled to say that not every such case will qualify for compensation. He has excluded judicial error from the category of serious default, an approach which the courts have upheld without any suggestion that it leads to absurd results. To attract compensation under the other limb of the policy, a case of judicial error must be exceptional within a class of what are already serious and unusual defaults by a trial judge. Analysis of the respondent’s affidavits shows that there has been no fetter of discretion in relation to judicial error. At no point is the possibility of a payment in a case of judicial error excluded. The statement that such a case will “almost certainly” fail to qualify necessarily implies that there may be exceptional cases that will qualify. The decision letters are also consistent with this interpretation of the respondent’s evidence.

19. It was submitted that the exclusion of consideration of the consequences of the conviction is merely a reflection of the nature of the policy, the whole focus of which is on exceptional cases of wrongful conviction or charge , rather than on the particular consequences of such events for the individual applicant. Thus it is clear in relation to serious default that the requirement of seriousness governs the default and not the consequences of the default ex p. Sheffield & Brook per Collins J at page 13B). The respondent is entitled to take the same approach in relation to the category of other exceptional circumstances. This is not irrational given that, in every case where a default has resulted in a wrongful charge or conviction, serious consequences will be bound to have ensued. Further, it is obviously rational to have a policy which excludes the making of invidious distinctions concerning the consequences of a default at the stage of determining entitlement rather than quantum. On this and other issues of rationality, Mr Sales placed reliance on the observations of Sir Thomas Bingham M.R. in ex p. Bateman & Howse at page 14G of the transcript:

20. In relation to the issue of complete exoneration, it was submitted that the respondent’s approach is, again, rational. Payments are made under this head only where facts emerge which establish beyond any doubt that the accused person did not commit the crime. That is the same basic concept referred to in the Statement (“completely exonerate”) and in some of the decision letters (“conclusively established”). It is not an impossible requirement. There are people who satisfy it. The establishment of such a high threshold is consistent with the policy and is a matter of judgment for the respondent.

21. With regard to the ECHR, Mr Sales submitted that the only applicant who has even an arguable basis for raising the Convention is Thompson, since in his case alone was the point raised with the respondent and dealt with in the respondent’s decision letter. The other applicants, not having raised the Convention with the respondent during the decision-making process, cannot now seek to rely upon it. The Convention is not yet incorporated into domestic law and a decision-maker is not required as a matter of domestic law to have regard to the United Kingdom's international obligations (see ex p. Brind [1991] 1 AC 696 and ex p. Ahmed & Patel , Court of Appeal, 30 July 1998). In the case of Thompson, the respondent did consider Article 6 of the Convention but would have been entitled to conclude that the circumstances of the applicant's case did not amount to exceptional circumstances for the purposes of the policy, even if he had found a breach of Article 6. Accordingly, the applicants' points on the Convention could not avail them even if they were well-founded.

22. In any event, however, the substantive case advanced by Miss Rose on behalf of Thompson and adopted by counsel for the other applicants is said to proceed on an erroneous basis. In the application of Article 6(1) to a case where a conviction at trial has been subject to an appeal, the test is whether the particular defects in the original trial have been cured by the subsequent procedure on appeal. Where the defects relate to the constitution of the court, they will not be cured by an appeal which examines only the conduct and findings of the court below. But where the defects relate to the conduct of the case, and the appeal court has jurisdiction to correct those defects, then examination of those matters on appeal will cure the defects. In those circumstances the proceedings will be looked at as a whole and there will be no breach of article 6(1). That view is supported by Adolf v Austria (26 March 1982, Series A No.49), De Cubber v Belguim (1984) 7 EHRR 236, Edwards v United Kingdom (1993) 15 EHRR 417 and Findlay v United Kingdom (1997) 24 EHRR 221; see also Jacobs & White, The European Convention on Human Rights, 2nd ed., p.125, and Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights, 1st ed., pp. 240-241.

23. There is no support in the authorities or commentaries for the proposition that, where procedures at a trial have infringed Article 6(1) and the conviction is subsequently quashed on appeal, there will be an unremedied breach of Article 6(1) unless and until compensation is paid in respect of the original conviction. It is also of significance that Article 5(5) which, by contrast with Article 6, contains express provision for compensation for unlawful detention in custody, has been consistently held not to confer a right to compensation where convictions or sentences have been found by the appellate court to have been based on errors of fact or law (see e.g. Benham v United Kingdom (1996) 22 EHRR 293).

24. The above submissions, although addressed primarily to Miss Rose's submissions on behalf of Thompson, also covered most of the matters relied on by the other applicants. In relation to Tawfick, Mr Sales submitted, in addition, that the applicant's reliance on the presumption of innocence under Article 6(2) of the Convention was misplaced, since that presumption relates to a criminal charge and has no application to the making of an ex gratia payment. In relation to Garner, he submitted that, on the proper construction of the Statement it is plainly the wrongful conviction or charge, rather than simply a period in custody, which must result from serious default for the purposes of qualifying under that limb of the policy.

25. In relation to Carter there were three additional points. First, Mr Sales took issue with the various contentions advanced on behalf of Carter under the broad head of irrationality. He submitted that the respondent carried out reasonable investigations and was entitled in the circumstances to proceed by reference to the police report, which showed that the police had interviewed the social worker and had not been alerted to anything in the records that would cast doubt on the credibility of the main prosecution witness. The evaluation of the material was a matter for the respondent. The conclusions reached, both as to serious default and as to complete exoneration, are not ones with which the court should interfere. Secondly, as regards procedural fairness, it was submitted that, in this context, procedural fairness did not require disclosure of the police report and that very issue was decided in favour of the respondent in ex p. Harrison [1988] 3 All ER 86. The lateness of the amendment pleading procedural unfairness is itself an indication that the applicant and his advisers did not consider that standards of fairness in this area require disclosure of such material. Further, by pressing for an early decision without seeking disclosure of the material being gathered by the respondent, the applicant waived any requirement for disclosure. The third additional area addressed by Mr Sales concerned the alleged breach of duty to give reasons. He submitted that the respondent is under no duty to give reasons as a matter of law, but always gives them as a matter of fact; and that the reasons given in the particular case were, in all the circumstances, sufficient.

26. Mr Keith, following in relation to the case of Taylor, dealt first with the application of s.133. He submitted that the matters relied on by the applicant are not "new facts" within the meaning of the section. In allowing the applicant's appeal, the Court of Appeal indicated that the fresh evidence might have assisted him in certain respects at trial but the court did not make any findings of fact. In any event, the appeal was allowed on the ground that the applicant might not have had a fair trial due to lack of representation. Moreover the court reached their conclusion "with considerable hesitation" and also referred to the possibility that the applicant might have been convicted of a lesser offence even if acquitted on the count charged. Such considerations are relevant to the question whether there has been a miscarriage of justice, an expression which is not apt to cover the normal quashing of a conviction on appeal. For all those reasons, this is plainly not a case where a conviction has been reversed on the ground that a new fact shows beyond reasonable doubt that there has been a miscarriage of justice.

27. As to the application of the ex gratia scheme, Mr Keith submitted, in effect, that the applicant's submissions in relation to serious default and complete exoneration were based on a misreading of the Court of Appeal's judgment. The court did not make any adverse findings in relation to the conduct of the police or any findings exonerating the applicant. All the points relied on by the applicant are matters that the court held were properly left to the jury. In the light of that material, on which the respondent was entitled to rely, the respondent's conclusions are unassailable.

28. In our judgment, despite the submissions of Mr Sales to the contrary, it is plain, from the decision letters and affidavits in each of these cases (save Carter where the point does not arise) viewed separately and together, that the respondent has not given any consideration to whether judicial conduct can be of such quality as to give rise to exceptional circumstances within the second limb of the Statement. The respondent has, it seems to us, invariably proceeded on the basis that a judge is not a public authority within the first limb. That approach is correct as far as it goes. But in failing further to consider in each case whether judicial misconduct was so gross as to give rise to exceptional circumstances, the respondent has improperly fettered the exercise of his discretion. It will, no doubt, be a very rare case indeed where judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the Statement requires. It will, as Sir Thomas Bingham MR made plain in ex p. Bateman & Howse, be an even rarer case in which the court will interfere with the Secretary of State’s evaluative judgment in this respect. But, as it seems to us, such an evaluative judgment should be made by the respondent in each case where judicial misconduct is alleged and relied on by an applicant for compensation.

29. With regard to the consequences of a conviction or charge, the respondent is, in our view, entitled to treat these as relevant to the amount of compensation but irrelevant to whether or not any compensation should be paid. The Statement identifies the circumstances in which payments may be made and in doing so, focuses as it seems to us, on matters leading to custody. It contains no references to the criteria relevant to the amount of compensation. We see no warrant for construing the circumstances for payment by reference to factors affecting amount. This approach seems to us to be consonant with criminal law whereby, although the consequences of a wrongful conviction or charge of murder are very different from those in relation, say, to shoplifting, the standard of proof of criminality is, in both cases, the same. Similarly, it seems to us that there is no logical reason for differentiating between consequences when assessing whether serious default or exceptional circumstances are shown. On a fair reading of the Statement, unless serious default or other exceptional circumstances are shown, there can be no payment: if they are not, payment will not be made, whatever the consequences.

30. As to the ECHR, Thompson was the only applicant to raise this with the respondent. Accordingly, in our judgment, he is the only applicant who can rely on it. The Secretary of State ultimately considered the representations made on behalf of Thompson in relation to Article 6(1). It would have been open to him to conclude at the outset that, even if there was a breach, this did not give rise to exceptional circumstances. In any event, the authorities on which Mr Sales relied demonstrate that there is no breach provided that, looking at the proceedings as a whole, the appeal cured the trial defects. There is nothing in the European Court of Human Rights jurisprudence to suggest that, absent compensation, there is an unremedied breach of Article 6(1) when a conviction is quashed on appeal. On the contrary, the compensatory provisions of Article 5(5) have been held not to confer a right to compensation where an appellate court finds errors of fact or law.

31. As to complete exoneration in the second limb there is, as it seems to us, no point of substance in the varying terminologies. As we noted at the outset, the reference in s133 to “beyond reasonable doubt” probably imposes a lower threshold for an applicant than “conclusively” as required by Article 14.6 of the International Covenant. We see no material difference between “complete exoneration” and “conclusively”. The Secretary of State set a standard which was very high but not impossibly so. He was entitled to do so. Neither his policy nor his interpretation of it impinges on the presumption of innocence, whether in Article 6(2) or otherwise. This presumption operates at the beginning of the trial process and continues until conviction. It has, in itself, no role to play in the administration of this ex gratia scheme for dealing with custody resulting from wrongful conviction.

32. As to the meaning of “it” in the first limb, we have no doubt that this refers to conviction or charge. A period in custody not resulting from a wrongful conviction or charge plainly does not qualify for compensation on reading the Statement as a whole. It is serious default in relation to the conviction or charge which can found an application for compensation. The respondent was entitled to conclude that the administrative error in Garner’s case did not affect the safety of his conviction.

33. As to Taylor’s reliance on s133, his circumstances, in our judgment, plainly fail to meet the statutory test. The admission of new evidence by the Court of Appeal did not result in any findings of fact as to the reasons for his presence at the flat, as to the width of the hallway or as to the concurrence of the officers’ notebooks. The Court quashed the conviction because the new evidence lent support to the contention that lack of legal representation may have meant that the trial was not fair. There is a clear and fundamental distinction between evidence and facts. It was open to the Secretary of State to conclude that no miscarriage of justice had been shown beyond reasonable doubt, because the court had not accepted that the new evidence exonerated the applicant from the alternative offence of accessory after the fact. Likewise leaving aside the absence of consideration of judicial error or misconduct, the respondent was entitled to conclude that the applicant was not within the ex gratia scheme. The Court of Appeal did not make findings suggesting there was serious default within the first limb of the Statement.

34. In relation to Carter, the respondent in our judgment failed to “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer correctly”,. (per Lord Diplock in Secretary of State for Education v Tameside MBC 1977 AC 1014 at 1065B). The police report ante-dated the trial and was, therefore, silent as to the circumstances which led to the social services’ file being produced on the 6th day of the trial. The report did, however, disclose both that Ms Dite had enquired of the social services about adoption before the baby was born and that the baby had been in the care of the social services. In these circumstances, bearing in mind the dramatic impact which the file, when seen by the prosecution, had on the trial, it was plainly incumbent on the respondent to make further enquiries of the police and prosecuting authorities as to why this file was not inspected earlier and as to the circumstances which led to its production in court. It is not, in our judgment, an adequate answer for the respondent to rely on the fact that the CPS file was lost. This was a murder investigation. The trial had ended dramatically 4 years earlier. It is inconceivable that, in such circumstances, no one involved with the prosecution would have had any recollection of material matters without the CPS file. Furthermore, fairness, in our judgment, demanded that the respondent should give the applicant the opportunity of commenting on the police report. Had this been done, it seems to us highly likely that the respondent would have been spurred to make further enquiries along the lines which we have indicated. We do not seek to say that there is a general duty on the respondent to disclose police reports of this kind in connection with an application for compensation. Such a conclusion would be contrary to ex p. Harrison . But, in the particular circumstances of this case, fairness, in our judgment, cried out for such disclosure to be made. We reject the contention that the applicant has waived his right to fairness. Neither the fact that the applicant’s advisers did not seek disclosure nor the fact that they were pressing for an answer (which, in any event, did not come for 18 months) demonstrates waiver of the requirements of fairness.

37. In the cases of Thompson, Tawfick, Garner and, with considerable hesitation, Taylor we direct that the respondent consider whether there was judicial error or misconduct which amounted to exceptional circumstances within the second limb of the Statement and whether a period of custody resulted therefrom. In the case of Carter, we direct that the respondent (i) consider representations on the applicant’s behalf in relation to the police report (ii) thereafter make further enquiries of the prosecuting authorities as to why the social services’ file was not sought and inspected earlier and (iii) reconsider his decision in the light of these enquiries.