Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent)

Compensation under section 133 of the Criminal Justice Act 1988 is directed to wrongful convictions resulting from a serious failure in the investigation or trial process. It does not extend to a conviction quashed solely because antecedent executive misconduct enabled the defendant to be brought within the jurisdiction, where the trial and verdict were otherwise unimpaired.

The House did not establish a majority view on whether every qualifying miscarriage of justice requires proof of innocence beyond reasonable doubt. Under an ex gratia compensation scheme, the Secretary of State may depart from published policy in an exceptional case. The decision must remain fair, rational, consistent and compatible with any substantive legitimate expectation.

The respondent was convicted of conspiracy to cause explosions after British authorities procured his unlawful deportation from Zimbabwe. Nearly ten years later, the Court of Appeal (Criminal Division) quashed the conviction for abuse of executive power, although no defect in the trial or verdict had been established.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988 and under an ex gratia scheme. The Divisional Court dismissed the respondent's judicial review claim: [2002] EWHC 230 Admin. The Court of Appeal reversed that decision and held that compensation was payable under section 133: [2002] EWCA Civ 1882.

The issues before the House were whether the quashing of the conviction disclosed a miscarriage of justice within section 133 and, alternatively, whether the refusal of ex gratia compensation was unlawful.

1. The Secretary of State's appeal was allowed unanimously. Lord Bingham delivered the leading speech on the narrow ground accepted by Lord Rodger and Lord Walker. The conviction had been quashed because of a gross abuse of executive power in procuring the respondent's unlawful removal from Zimbabwe. No failure in the investigation of the offence, conduct of the trial or reliability of the verdict had been identified. Such antecedent executive misconduct was outside the miscarriage-of-justice compensation right created by section 133 of the Criminal Justice Act 1988 and article 14(6) of the International Covenant on Civil and Political Rights 1966.

2. Per Lord Bingham, section 133 is concerned with convictions in which something has gone seriously wrong in the investigation or trial, causing the conviction of a person who should not have been convicted. The jurisdiction exercised in quashing the respondent's conviction was instead the jurisdiction identified in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42: the court's responsibility to prevent abuse of executive power and uphold the rule of law. The respondent therefore fell outside section 133 even if “miscarriage of justice” bore a meaning wider than proof of innocence.

3. No majority ratio required proof of innocence in every section 133 case. Lord Steyn concluded that the autonomous meaning of “miscarriage of justice” was confined to clear cases in which the person's innocence was established. Lord Rodger accepted that additional reasoning. Lord Bingham expressed substantial reservations and found it unnecessary to decide the point. Lord Scott likewise reserved it, while Lord Walker adopted only Lord Bingham's narrower ground.

4. Lord Bingham and Lord Steyn rejected the alternative challenge to the refusal of ex gratia compensation. A minister administering such a scheme has latitude to depart from policy in exceptional circumstances, provided the decision is fair, rational, consistent and does not defeat a substantive legitimate expectation. The respondent had an opportunity to make representations. The Secretary of State rationally considered that paying public money to a person whose conviction was properly supported, but quashed for antecedent abuse of process, would be an affront to justice.

5. The order of the Divisional Court dismissing the judicial review claim was restored.

1. House of Lords: The Secretary of State's appeal was allowed unanimously. The Court of Appeal's order was set aside and the Divisional Court's order restored: [2004] UKHL 18.

2. Court of Appeal: The court allowed the respondent's appeal and held that the Secretary of State was legally bound to pay compensation under section 133 of the Criminal Justice Act 1988: [2002] EWCA Civ 1882; [2003] QB 993.

3. Queen's Bench Divisional Court: The court dismissed the application for judicial review of the refusal of statutory and ex gratia compensation: [2002] EWHC 230 Admin; [2002] 1 WLR 1857.