Daghir & Ors, R (on the application of) v Secretary of State for Home Department

An ex gratia compensation scheme is construed as a public announcement of government policy, according to the reasonable and literate reader’s understanding, rather than as a statute. The expression “public authority” in the scheme concerns bodies involved in investigating or prosecuting offences and does not include judges. Judicial error may nevertheless contribute to exceptional circumstances under the scheme’s second limb, but ordinary judicial error is insufficient. The decisive consideration is the nature and quality of the error or misconduct, assessed in the context of the case, rather than the fact or seriousness of the resulting conviction or sentence. The Secretary of State’s evaluative conclusions are susceptible to judicial review only on ordinary public law grounds, including irrationality.

Three claimants sought permission to challenge refusals of compensation under an ex gratia scheme continued by successive Home Secretaries after wrongful convictions had been quashed. They relied on alleged judicial errors, prosecutorial defaults, and the length of sentences imposed. The central issues were whether judges were “public authorities” for the first limb of the scheme, whether sentence length could constitute an exceptional circumstance under the second limb, and whether the Secretary of State’s evaluative conclusions were irrational.

1. Construction of the scheme. The appropriate approach was that stated in R v Criminal Injuries Compensation Board, Ex parte Webb [1987] QB 74, and approved in R v Criminal Injuries Compensation Board, Ex parte K and Another [1998] 1 WLR 1458. The 1985 statement was to be read as a public announcement of policy, not as legislation.
2. Meaning of “public authority”. On a sensible reading, the words referred to bodies involved in investigating and probably prosecuting offences. Judges fell outside the expression. The conclusion in R v SSHD ex parte Bateman and Howse was correct, and the claimant’s attempt to reopen the issue was unarguable. The reasoning in R v SSHD ex parte Garner & ors (1999) 11 Admin Law Report was binding and led to the same conclusion.
3. Exceptional judicial error. Judicial misconduct or error could fall within the second limb, but such cases would be very rare. A mere error in a summing-up or ruling would not ordinarily suffice. The relevant focus was the nature and quality of the error, not merely its consequence in producing a conviction. The approach in R (Tawfick) v SSHD was applied.
4. Post-conviction matters could in principle fall within the scheme, as recognised in R (Christofides) v SSHD [2002] EWHC Admin 1083. However, an error in sentencing could not have caused a wrongful conviction and therefore could not establish entitlement under the scheme on that basis.
5. The Secretary of State was entitled to conclude that the alleged judicial and prosecutorial errors in each claimant’s case were not exceptional circumstances. None of the challenges was arguable on irrationality grounds. All three applications for permission were refused.