Mullen, R (on the application of) v Secretary Of State For Home Department

Permission to appeal should be granted where the proposed appeal cannot be said to have no real prospect of success. The scope of section 133 of the Criminal Justice Act 1988, including the meaning of miscarriage of justice, was at least arguable. A court should not prevent an applicant from advancing related challenges to an ex gratia compensation decision where those points have a sufficient prospect of success. The grant of permission determines only arguability; it does not decide the merits of the statutory or policy challenges.

The applicant had been convicted of conspiracy to cause explosions and imprisoned for about ten years. His conviction was quashed by the Criminal Division of the Court of Appeal because his removal from Zimbabwe to the United Kingdom and prosecution involved a serious abuse of process.

He unsuccessfully sought compensation under section 133 of the Criminal Justice Act 1988 and under an ex gratia scheme based on a written statement of 29 November 1985. The Divisional Court refused judicial review on 21 February 2002. The applicant renewed his application for permission to appeal, challenging the construction of section 133, the role of the Secretary of State under section 133(3), and the refusal of ex gratia compensation.

1. The renewed application was granted generally. The Court of Appeal was unable to say that an appeal would have no real prospect of success.
2. The construction of section 133 of the Criminal Justice Act 1988 was at least arguable. The court identified the issue as whether quashing the conviction because of the newly discovered fact concerning the unlawfulness of the applicant’s removal constituted a quashing on the ground that the fact showed beyond reasonable doubt that there had been a miscarriage of justice. Although the Divisional Court had accepted that miscarriage of justice meant the wrongful conviction of an innocent accused, that conclusion was sufficiently open to argument to justify permission.
3. The applicant could also argue that the provision in section 133(3) making the Secretary of State the decision-maker was incompatible with Article 6(1) of the Convention. The court did not determine that issue.
4. Permission was granted in relation to the ex gratia scheme as well. The court did not examine the substantive criticisms of the Divisional Court’s reasoning, but considered that the applicant should not be shut out from advancing them on the appeal.

There was no order for costs.

1. Court of Appeal (Criminal Division) — The applicant’s conviction was quashed on 4 February 1999 because the prosecution followed an abuse of process arising from his removal from Zimbabwe.
2. Divisional Court — Judicial review of the Secretary of State’s refusal of statutory and ex gratia compensation was refused on 21 February 2002.
3. Court of Appeal (Civil Division) — On the renewed application, permission to appeal was granted generally.