In re McFarland (AP) (Appellant) Northern Ireland

A person whose conviction is quashed qualifies for statutory compensation only if the conditions in section 133 of the Criminal Justice Act 1988 are satisfied. A conviction reversed by a legal ruling upon facts already known is not reversed because a new or newly discovered fact conclusively shows a miscarriage of justice.

The statutory scheme superseded the corresponding limb of the previously announced ex gratia policy. A claimant who fails under section 133 cannot invoke that policy limb instead. Under the remaining policy, a judge or magistrate is not a member of a public authority whose serious default attracts compensation. Publicly announced policies must nevertheless be applied according to their lawful scope, and the executive cannot go behind the judicial decision by which the conviction was quashed.

The appellant pleaded guilty to indecent assault after a resident magistrate privately discussed the evidence and possible sentence with counsel. He served four months’ imprisonment. The Divisional Court later quashed the conviction because the plea lacked true consent owing to a misapprehension caused by the magistrate’s discussion, but it rejected the allegation that the appellant’s will had been overborne.

The Secretary of State refused compensation. Kerr J dismissed the resulting judicial review claim: [2002] NIQB 14, [2002] NIJB 154. The Court of Appeal in Northern Ireland also dismissed the challenge: [2002] NICA 28, [2002] NI 337.

The appeal concerned whether compensation was available under article 14(6) of the International Covenant on Civil and Political Rights, section 133 of the Criminal Justice Act 1988, or the ex gratia policy announced by the Home Secretary in 1985. It also raised whether a resident magistrate was a member of a public authority under that policy.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Scott agreed with his reasons and added observations about the scope of judicial review. Lord Rodger and Lord Walker agreed with Lord Bingham. Lord Steyn agreed with the disposition and the statutory conclusion, but disagreed with the majority’s construction of “public authority”.

2. Per Lord Bingham, the appellant did not satisfy article 14(6) of the International Covenant on Civil and Political Rights or section 133 of the Criminal Justice Act 1988. His conviction was not quashed because a new or newly discovered fact conclusively demonstrated a miscarriage of justice. The gist of the magistrate’s discussion was known when the guilty plea was entered. The conviction was quashed because of a legal ruling about the effect of the magistrate’s intimation upon the validity of that plea.

3. Per Lord Bingham, section 133 gave statutory effect to article 14(6) and superseded that part of the 1985 ex gratia policy. Parliament cannot have intended a claimant who fails to meet section 133, including its definition of “reversal”, to recover under the corresponding words of the earlier policy.

4. Per Lord Bingham, with the agreement of Lord Scott, Lord Rodger and Lord Walker, a resident magistrate was not a member of “some other public authority” within the 1985 policy. The expression had to be understood in its policy context. References to the police or another public authority did not include judges or magistrates. The express inclusion of courts and tribunals in section 6(3)(a) of the Human Rights Act 1998 did not alter that conclusion.

5. Lord Steyn would have construed the policy objectively, purposively and as part of the current legal order. In his view, a court was institutionally and functionally a public authority. He considered that minor judicial errors could be excluded by requiring a very high threshold, possibly misconduct, for “serious default”. He nevertheless did not dissent because the Secretary of State was entitled to take the mild terms of the judgment quashing the conviction as his guide.

6. Per Lord Scott, the ex gratia policy was reviewable despite its prerogative origin. Its operation remained for the Secretary of State, subject principally to rational decision-making and procedural fairness. The policy did not create a statutory entitlement to payment.

1. House of Lords: Dismissed the appeal unanimously and affirmed the refusal of judicial review: [2004] UKHL 17.
2. Court of Appeal in Northern Ireland: Dismissed the appellant’s challenge to the refusal of compensation: [2002] NICA 28, [2002] NI 337.
3. High Court of Justice in Northern Ireland, Queen’s Bench Division: Kerr J refused judicial review: [2002] NIQB 14, [2002] NIJB 154.
4. Divisional Court: Quashed the criminal conviction and directed that there could be no retrial: [2000] NI 403.