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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clibery, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin) (30 July 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1855.html Cite as: [2007] EWHC 1855 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2007

Lord Phillips of Worth Matravers CJ

This is the judgment of the Court

Introduction

1. This is an application for judicial review of a decision of the defendant, the Secretary of State for the Home Department, ('the Home Secretary'), to refuse the application of the claimant, Anthony Clibery, for compensation pursuant to section 133 of the Criminal Justice Act 1988, ('the CJA'). It is brought with permission granted by Wyn Williams J on 8 February 2007.
2. Section 133 (1) of the CJA ('section 133') provides:

"(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and 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 the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted."

3. On 23 December 1998 the claimant was convicted, after a trial at Chester Crown Court of two counts (counts 1 and 2) of raping his wife ('the complainant'). He was acquitted of one count of affray (count 3) and one count of applying a corrosive fluid to his wife with intent. He was sentenced by HHJ Elgan Edwards to 5 years imprisonment on each count, to run concurrently. On 19 July 2005 the Court of Appeal, on a reference by the Criminal Cases Review Commission ('the CCRC'), allowed his appeal against the two convictions. He claimed compensation pursuant to section 133(1). The Secretary of State decided that he was not entitled to compensation because he, the Secretary of State, was not persuaded that his convictions had been quashed 'on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice'. This application challenges that conclusion on the ground that it was based on an erroneous interpretation of section 133(1). It raises two issues. On true construction of section 133(1):

i) Were the claimant's convictions quashed as a result of 'new or newly discovered facts'?

ii) Did those facts show beyond reasonable doubt that there had been a 'miscarriage of justice'?

The facts

4. It was the prosecution case that the claimant raped Mrs Clibery during a meeting on 13/14 May 1998 to discuss the sale of the matrimonial home, Orchard Cottage. The claimant and Mrs Clibery went to the bedroom to look at documents, whereupon the claimant made sexual advances which were rejected. He pushed her onto the bed and raped her, penetrating first her vagina (Count 1) and then her anus (Count 2). She left the house the following morning and then went on a pre-arranged holiday without reporting the incident. On 1 June 1998 Mrs Clibery returned to the house, thinking it was empty. The claimant returned and an argument began. The claimant attacked her with a coat hanger and his hands and knees (Count 3). He then dragged her into the kitchen, tied her to a chair and poured bleach over her (Count 4). Mrs Clibery reported the attack and the rape incident to the police the following day and alleged that she had been raped repeatedly throughout the marriage. There were inconsistencies in her various accounts to the police. At the trial the claimant's case was that consensual sexual activities short of intercourse had taken place with Mrs Clibery on 13/14 May 1998 and that they had parted on good terms. He produced a clocking in card from his workplace to show that he could not have been at the house on 1 June 1998 at the time of the alleged attack. A forensic scientist examined Mrs Clibery's clothing and the chair, and concluded that the forensic evidence was inconsistent with her account. The judge directed the jury to acquit the claimant on Count 4, as bleach was not a corrosive substance as required by the offence. In his summing up, the judge did not consider that the evidence of the potential unreliability of Mrs Clibery was such as to require a specific warning to the jury as to her unreliability in accordance with R v Makanjuola [1995] 2 Cr App R 469. The jury acquitted Mr Clibery on Count 3 and convicted him on Counts 1 and 2. Following his conviction, the claimant sought leave to appeal. His appeal was dismissed after a hearing before the Full Court on 13 January 2000. The Vice President, Rose LJ, found that there was evidence bearing on the potential reliability of Mrs Clibery such as was capable of requiring specific warning to the jury, but that it was not unreasonable in the Wednesbury sense for the judge to have decided not to give such a warning.

The referral

5. On 16 February 2000 the claimant applied to the CCRC. Investigations by the CCRC followed. The conviction was then referred to the Court of Appeal with a Statement of Reasons dated 15 October 2001.
6. The basis for the referral was that since the claimant's conviction fresh evidence had emerged that cast doubt on Mrs Clibery's credibility. This evidence shows that she had a propensity for telling lies. The significant lies were as follows:

i) In a letter to her private investigator, Mr Need, dated 21 June 1998 she described a friend of hers as her sister, when she was not.

ii) In County Court proceedings in Chester on 7 April 1999 in respect of Mr Need's bill, Mrs Clibery told District Judge Harrison on oath that her husband was "in prison for five years for assault on me causing my disablement and abuse of children". In fact she had sustained her disabling injuries in a car crash four years before the alleged offences and the claimant had never faced charges of abuse of her children.

iii) In a letter to the Benefits Agency on 22 November 2000 she stated that "the severity of the assaults for which my ex-husband is serving two terms of five years has now left me in a position in which I can no longer help myself".

iv) In a further letter to the Benefits Agency dated 4 December 2000 she stated she had muscle problems after her 'severe rape and buggering', her knees had been beaten and her left shoulder bashed. These assertions were unsupported by the medical evidence.

v) In an 'Incapacity for work Questionnaire' dated 24 May 2001 she stated that she had 'no family except one foster sister and she is the only person I see' when she had three daughters living in Australia.

7. The CCRC concluded that there was a real possibility that had the jury been aware that the complainant was prepared to tell such lies they might have been less likely to believe her evidence. Furthermore had the judge been similarly aware this might have influenced his decision as to whether to give a Makanjuola direction. For these reasons the CCRC concluded that there was a real possibility that the claimant's conviction would not be upheld if it were referred to the Court of Appeal and, accordingly, referred it pursuant to section 9 of the Criminal Appeal Act 1995.

The decision of the Court of Appeal.

8. The Court of Appeal referred to the evidence that the complainant had lied that we have summarised above and made the following finding:

"There is no dispute that the statements and remarks, subject to one matter were clearly lies. It is clear that the complainant lied to the district judge in evidence. It is clear that she lied to the Benefits Agency. It is clear also that she lied, a pointless lie though it may have been, in the letter to Mr Need. As to the letter relating to her lack of family, this is less clearly a direct lie, bearing in mind the circumstances in which it appears…"

9. The Court then considered whether, had the evidence of these lies been available at the trial, the judge would have given a Makanjuola warning to the jury. It reached the following conclusion:

"…if evidence to that effect had been available and had been before the court, the judge may have rephrased his warning and may have included a warning of the special need for caution. However, it is not appropriate to speculate, particularly since much of the new material amounts to a misrepresentation of the reasons for the conviction itself and the nature of the sentence passed, which by definition could not have been before the jury in the form it was. We consider that the crucial question for us is the final ground, whether the conviction is safe."

10. The Court answered that crucial question in the negative:

"Although there was clearly already material before this jury that was capable of casting doubt on the truthfulness of the complainant, the jury plainly believed her on counts 1 and 2. The new evidence does demonstrate further that the complainant was capable of telling lies on matters relevant to the appellant on occasions clearly calling for the need for truthfulness. The Court cannot with confidence conclude that the jury would have reached the same verdicts. In our judgment, it is not possible to say with confidence that the convictions are safe. The convictions on count 1 and 2 must therefore be quashed and the appeal must be allowed."

11. The Court of Appeal gave judgment on 19 July 2005. The claimant had, by that time, been released from prison, having been in custody from 23 December 1998 until about May 2003.

'New or newly discovered facts'

12. Mr Robin Tam QC for the respondent made, albeit with muted enthusiasm, two challenges to the claimant's contention that the quashing of his conviction was the result of 'new or newly discovered facts' within the meaning of that phrase in section 133 of the CJA. He referred us to the statement of the High Court in Murphy v Home Secretary [2005] EWHC 140 (Admin); [2005] 1 WLR 3516 at paragraph 58 that section 133 was only concerned with facts that emerged after the ordinary trial process had been exhausted. He submitted that the first two items of evidence of lies pre-dated the disposal of the claimant's first appeal to the Court of Appeal.
13. For the claimant, Miss Heather Williams QC took objection to this submission. It inferred that knowledge of those two items of evidence had come to the attention of the claimant or his lawyers before his first appeal. She submitted that this was the first time that such an assertion had been made and it should not be entertained. We consider that there is force in Miss Williams' objection. The claimant applied to the CCRC on 16 February 2000, relying on lies told by Mrs Clibery in the County Court proceedings the previous April. It is not clear from the evidence before us when the claimant, or those acting for him, learnt of these lies or how much they had learnt about them. What is clear is that most of the evidence relied upon by the CCRC and by the Court of Appeal on the reference, was obtained by the CCRC itself. We are not prepared to entertain Mr Tam's submission about the first two items of this evidence.
14. Mr Tam's second point was that the evidence did not constitute new 'facts' within the meaning of that word in section 133. The Court of Appeal made no new findings of fact that related to the charges against the claimant. The Court did not find that the complainant had lied at the claimant's trial, merely that the new evidence would have affected her credibility, so that the jury might not have believed her. We reject this argument. We can see no basis for giving 'facts' the narrow interpretation contended for by Mr Tam. The Court of Appeal found that the complainant had lied on a number of occasions. That was a finding of fact. The discovery of facts affecting the credibility of a witness are capable of constituting 'new or newly discovered facts' within the meaning of section 133. It may be that facts of this kind will not often 'show beyond reasonable doubt that there has been a miscarriage of justice'. That is, however, another matter and depends in part upon the meaning of 'miscarriage of justice'. That is the primary issue raised by this application, to which we now turn.

'Miscarriage of justice'

15. The meaning of 'miscarriage of justice' in the context of section 133 of the CJA was the subject of detailed submissions to the House of Lords in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1. Two rival interpretations were canvassed. In the event it proved unnecessary to choose between them for their Lordships were agreed that on the particular facts of the case there had been no 'miscarriage of justice', whichever of the rival meanings was correct. Nonetheless, Lord Bingham of Cornhill explained why he preferred one meaning while Lord Steyn, with whose view Lord Rodger of Earlsferry agreed, preferred the other. In order to put the rival views in context it is necessary to explain the circumstances in which the claimant in that case had his conviction quashed.
16. The claimant had been deported from Zimbabwe to England, where he was tried and convicted of conspiracy to cause explosions and was sentenced to 30 years imprisonment. After he had served 10 years of his sentence he obtained leave to appeal against his conviction on unusual grounds. He established that his deportation had involved serious breach of the law of Zimbabwe and of principles of international law. He had, in effect, been kidnapped with the complicity of the British Intelligence Service and police. He submitted that this was an abuse of process that entitled him to be acquitted on the ground that his conviction was 'unsafe'. He did not suggest, however, that he was other than guilty of the offence of which he was convicted or that the trial process itself was in any way flawed. The Criminal Division of the Court of Appeal held that there had been a 'blatant and extremely serious failure to adhere to the rule of law' and that, had this become known by the trial judge he would have stayed the proceedings on the ground of abuse of process. In these circumstances his conviction was unlawful and would be quashed.
17. The Court of Appeal held that in these circumstances the claimant had proved that a 'miscarriage of justice' had occurred that entitled the claimant to compensation under section 133 of the CJA. The House of Lords reversed this decision. Lord Steyn did so on the ground, expressed by his conclusion at paragraph 56, that:

"the autonomous meaning of the words "miscarriage of justice" extends only to "clear cases of miscarriage of justice in the sense that there would be acknowledgement that the person convicted was clearly innocent" as it is put in the explanatory report."

No such miscarriage of justice had been established because the claimant was not innocent of the charge.

18. Lord Bingham did not agree that the meaning of 'miscarriage of justice' was so narrowly circumscribed. He held, however, that there could be no miscarriage of justice unless there was a failure of the trial process. There had been no such failure in the case of the claimant so he had not made good his right to compensation. He expressed views as to the circumstances that could amount to a 'miscarriage of justice' but did not need to found his decision on those views. The other members of the committee decided the appeal on the same basis as Lord Bingham. While Lord Rodger expressed the view that Lord Steyn's conclusion in relation to the meaning of miscarriage of justice was correct, Lord Scott and Lord Walker deliberately refrained from choosing between Lord Steyn's conclusion and the views of Lord Bingham.
19. Miss Williams accepted that the claimant could not establish that there had been a miscarriage of justice if Lord Steyn was correct as to the meaning of that phrase. It could not be suggested that the new evidence established beyond reasonable doubt that the claimant was innocent. She urged, however, that Lord Bingham's views were to be preferred to those of Lord Steyn and that, applying Lord Bingham's approach, a miscarriage of justice had clearly been established. Mr Tam submitted that Lord Steyn's interpretation of 'miscarriage of justice' was correct. He suggested, however, that a short cut was open to us. If we were satisfied, as he submitted that we should be, that the facts of this case did not satisfy Lord Bingham's interpretation of miscarriage of justice, there was no need to decide whether his interpretation or Lord Steyn's was to be preferred.
20. The fact that after lengthy argument Lord Bingham and Lord Steyn formed different views of the ambit of the phrase 'miscarriage of justice' demonstrates that this is no easy issue. If it is possible to decide this application without resolving that issue, we consider that this is the better course. Accordingly we turn to consider whether, applying Lord Bingham's view of the law, the claimant can make out a good case for compensation.
21. The critical passage in the speech of Lord Bingham is in paragraph 4:

"The expression 'wrongful convictions' is not a legal term of art and has no settled meaning. Plainly the expression includes the conviction of those who are innocent of a crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted."

22. Miss Williams stressed that the test to be derived from this passage was that the claimant 'should not have been convicted'. This, she submitted, did not require the claimant to prove that he 'would not have been convicted'. She submitted that, on the facts of this case, Lord Bingham's test was satisfied.
23. The difficulty with this argument is demonstrated by the following passage from Miss Williams' skeleton argument:

"…even at the time of the trial there was substantial reason to question the credibility and the motivation of Mrs Clibery. Had this additional evidence been available at the time it is submitted that is very unlikely that the Claimant would have been convicted. Indeed it is highly doubtful that in such circumstances the case would have reached trial at all (the Code for Crown Prosecutors requires the CPS to be satisfied that there is a 'realistic prospect of conviction' when deciding whether there is enough evidence to prosecute). Yet the Claimant served around four and a half years in custody for offences that in all likelihood he would not have been convicted of had the reality of Mrs Clibery's veracity been known at the time.

…

On Lord Bingham's test this is a miscarriage of justice: he was convicted when he should not have been convicted. This is not a case where an appellant has succeeded on a legal technicality, but where evidence has emerged that fundamentally undermines the credibility of the witness upon whose veracity the whole prosecution case depended at trial. The jury was invited to treat the complainant as a witness of truth when in fact she was ready to lie about the Claimant on occasions clearly calling for the need for truthfulness. This reliance on the complainant's evidence to secure the Claimant's convictions was a serious failure in the trial process." (emphasis ours).

24. Miss Williams argues that because it is unlikely that the claimant 'would' have been convicted had his wife's propensity to tell lies been known at the trial, it follows that he 'should' not have been convicted and that reliance on the claimant's evidence was 'a serious failure in the trial process'. Neither of these propositions is axiomatic.
25. Lord Bingham, in the passage of his judgment that we have set out above, considered two different situations, each of which he considered fell within the description of 'miscarriage of justice' in section 133 of the 1988 Act. The first is where new facts demonstrate that the claimant was innocent of the offence of which he was convicted. In such circumstances, it is possible to say that if the facts in question had been before the jury, he would not have been convicted. The second is where there were acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was 'wrongly convicted'. In such circumstances it is appropriate to say that the claimant should not have been convicted. This is the situation that Lord Bingham had in mind when he spoke of someone who should not have been convicted. This is clear from the observations that he made in relation to article 14(6) of the International Covenant on Civil and Political Rights, which section 133 was designed to implement:

"Article 14(6) of the ICCPR is the provision of that instrument which is directed to ensuring that defendants shall be fairly tried. Despite differences of wording and substance, it matches article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It also matches, for example, section 11 of the Canadian Charter of Rights and Freedoms, sections 24 and 25 of the New Zealand Bill of Rights and section 35(3) of the Bill of Rights incorporated in the Constitution of the Republic of South Africa. All of these provisions lay down certain familiar principles (the presumption of innocence, the right to be told of the charge against one, and so on). They address different aspects of the core right, which is to a fair trial. "

26. It is the claimant's misfortune that he is unable to bring himself within either of the categories of miscarriage of justice to which Lord Bingham referred. Miss Williams has accepted that it is not possible to demonstrate beyond reasonable doubt that he was innocent of the offence of which he was convicted. The most that can be said is that if the jury had had advance notice of the lies that the complainant told after her husband's trial they might not have convicted him. It is a matter of speculation whether such knowledge would have resulted in a different verdict. The claimant gave evidence at this trial. He did not deny that sexual activity had occurred between him and his wife on the occasion of the first meeting but alleged that this fell short of sexual intercourse and was consensual. Having heard him and his wife give evidence the jury were satisfied that it was the latter who was telling the truth about this incident, albeit that other aspects of her evidence had contained inconsistencies. It is by no means clear that if the jury could have foreseen her subsequent conduct they would have reached a different conclusion about the evidence.
27. Miss Williams argued that there had been a 'serious failure of the trial process' such as to bring this case within Lord Bingham's second category of miscarriage of justice. This is manifestly not the case. There was nothing that went wrong in the investigation of the offence or the conduct of the trial, let alone seriously wrong. All that occurred is that the complainant's conduct after the trial raised doubts about her credibility. Such a situation does not fall within Lord Bingham's second category.
28. Miss Williams' submissions amounted to a contention that section 133 is satisfied whenever a conviction is quashed as a result of newly discovered facts. She submitted that this was the position, subject to a 'residual discretion' on the part of the Secretary of State to refuse compensation where he was satisfied that, despite the quashing of the conviction, the claimant had committed the offence charged. That is not an accurate summary of the effect of section 133. It may be that it is an accurate description of a wider discretionary scheme under which the Secretary of State awarded compensation to persons whose convictions were quashed. That scheme was in effect at the time that the claimant's conviction was quashed, though it has since been withdrawn. In this claim no reliance has been placed on that scheme. The claimant has relied solely on section 133. For the reasons that we have given, the facts of this case do not fall within that section. The newly discovered facts in this case do not show beyond reasonable doubt that there has been a miscarriage of justice. Accordingly the application must be dismissed.