R v Secretary of State, Ex p McFarland

The central question was whether the Secretary of State acted unlawfully in refusing an ex gratia payment of compensation to Mr McFarland, whose conviction had been quashed. The House considered (a) whether the facts brought the appellant within article 14(6) of the International Covenant on Civil and Political Rights or within section 133 of the Criminal Justice Act 1988, and (b) whether the appellant qualified under the Home Secretary's 1985 ex gratia policy statement as having suffered imprisonment as a result of "serious default" by a member of a public authority.

The court held that the conviction was not quashed on the basis of a "new or newly discovered fact" within article 14(6) or within the statutory definition in section 133(5), so the appellant did not have the statutory entitlement under section 133. The House further held that, on the proper construction of the 1985 policy statement, judges and magistrates were not intended to be included within the phrase "member of a police force or of some other public authority" for the purposes of that statement; accordingly the appellant could not succeed under that limb of the policy. Even on the narrower question whether there was "serious default" by the magistrate, the Secretary of State's decision refusing payment was within rational bounds and not unlawful. The appeal was therefore dismissed.

Background and facts:

• Mr McFarland, a nurse, was accused of indecently touching another nurse. He pleaded guilty at the magistrates' court but subsequently sought to vacate the plea and at a later hearing changed his plea to guilty after his counsel, having had a private discussion with the resident magistrate in chambers, told him the magistrate viewed the complainant's evidence strongly and suggested referral to the Crown Court for sentence where a longer sentence might be imposed. Mr McFarland was sentenced to eight months' imprisonment and served four months.
• After serving his sentence he applied for judicial review and the Divisional Court quashed his conviction on the ground that his plea had been vitiated by a misapprehension arising from the magistrate's private discussions with counsel; the court held there should be no retrial. The solicitors then applied to the Secretary of State for compensation under the ex gratia scheme.

Nature of the claim/application:

• Judicial review of the Secretary of State's decision refusing an ex gratia payment of compensation; the relief sought included a declaration of entitlement to a lawful decision and remittal for reconsideration.

Issues framed by the court:

1. Whether the appellant fell within article 14(6) of the ICCPR as implemented by section 133 of the Criminal Justice Act 1988 (i.e. whether the conviction had been reversed on the ground of a new or newly discovered fact),
2. Whether the appellant qualified under the Home Secretary's 1985 ex gratia policy because his imprisonment resulted from "serious default" by a member of a public authority, and in particular whether a magistrate counts as a "member of a public authority" under that policy,
3. Whether the Secretary of State misinterpreted the Divisional Court's judgment or otherwise acted irrationally or unfairly in refusing payment.

Court’s reasoning and disposition:

• The House concluded the conviction was not quashed on the basis of a new or newly discovered fact within the meaning of article 14(6) or the statutory provision; the quashing rested on a legal ruling about facts already known.
• The House held that the 1985 policy statement, read in context, was not intended to include judges or magistrates as "members of some other public authority", and therefore Mr McFarland could not rely on the limb of the policy that refers to serious default by such a member. Several earlier authorities had reached the same conclusion, and Parliament later gave statutory content to the ICCPR provision in section 133, which further supported that approach.
• Even taking alternative views (noting Lord Steyn’s separate observations that an objective, purposive construction could include judges as public authorities but that a very high threshold of "serious default" would be required), the Secretary of State’s decision was within rational bounds and not amenable to successful judicial review.

Procedural posture:

• Conviction quashed by the Divisional Court: [2000] NI 403.
• Judicial review refused by Kerr J: [2002] NIQB 14.
• Appeal to the Court of Appeal (Northern Ireland) dismissed: [2002] NICA 28.
• Appeal to the House of Lords dismissed: [2004] UKHL 17.

Wider context:

• The Lords remarked on the sensitivity of ex gratia compensation, the role of ministerial policy statements, the limited grounds for judicial interference with prerogative payments and the rarity with which courts should disrupt executive decisions that respect judicial determinations.

Appeal dismissed. The House held that the appellant did not qualify under article 14(6) of the ICCPR as given statutory effect by section 133 of the Criminal Justice Act 1988 because the quashing of the conviction was not on the ground of a new or newly discovered fact. The appellant also did not qualify under the Home Secretary's 1985 ex gratia policy because a magistrate was not to be regarded as "a member of a public authority" within that policy and, in any event, the Secretary of State's refusal to make an ex gratia payment was within rational bounds and not unlawful. Lord Steyn expressed a different view on the construction of the policy term "public authority" but accepted that, on the facts and the existing decision-making, the appeal should be dismissed.

Divisional Court quashed conviction: [2000] NI 403; judicial review refused by Kerr J: [2002] NIQB 14; Court of Appeal (Northern Ireland) dismissed challenge: [2002] NICA 28; appeal to House of Lords dismissed: [2004] UKHL 17.