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

The House of Lords allowed the Secretary of State's appeal and restored the Divisional Court's order. The court held that the compensation duty in section 133 of the Criminal Justice Act 1988 (giving domestic effect to article 14(6) of the ICCPR) attaches to convictions reversed because of defects in the trial process or, on a narrower view favoured by some members of the committee, only to "clear" miscarriages of justice demonstrating the claimant's innocence. A conviction quashed solely because the defendant was brought within the jurisdiction by unlawful executive conduct, without any defect in the trial process, does not automatically give rise to compensation under section 133. The Home Secretary's refusal to make an ex gratia payment in the unusual circumstances of this case was also lawful and not irrational.

Background and facts:

• The claimant was convicted in 1990 of conspiracy to cause explosions and sentenced to thirty years. He had been deported from Zimbabwe and returned to the United Kingdom, where he was arrested and tried. Evidence at trial implicated him in supporting an IRA active service unit; he did not dispute the primary facts but relied on defences including duress.
• In 1999 the Court of Appeal (Criminal Division) quashed the conviction on the ground that his deportation had been procured unlawfully by collusion between British and Zimbabwean authorities, an abuse of executive power (Regina v Mullen [2000] QB 520).

Procedural posture:

• After the quashing, the claimant sought compensation under section 133 of the Criminal Justice Act 1988 (implementing article 14(6) ICCPR) or, alternatively, under the Home Secretary's ex gratia scheme. The Divisional Court refused judicial review of the Secretary's refusal to pay. The Court of Appeal (civil) reversed, holding the claimant entitled to compensation under section 133. The Secretary of State appealed to the House of Lords.

Issues framed by the House:

1. What is the proper interpretation of "a miscarriage of justice" in section 133 and article 14(6) ICCPR — whether it requires proof of innocence or extends to cases where the trial process was defective;
2. Whether quashing a conviction because the defendant was brought before the court by unlawful executive conduct (an abuse of process) brings the case within section 133;
3. Whether the Secretary of State acted unlawfully or irrationally in refusing an ex gratia payment in the exceptional circumstances of this case.

Reasoning and conclusion:

• The Lords agreed that section 133 must be interpreted in the light of article 14(6). Several members accepted a narrow interpretation (as expressed in the Explanatory Report to Protocol 7 and state practice) restricting compensation to clear cases of miscarriage demonstrating the convicted person's innocence; others would allow a somewhat wider reading covering failures of the trial process. On the narrow ground adopted by Lord Bingham (and supported by other members), the key was whether the reversal of conviction resulted from a trial defect: it did not in this case, because the conviction was quashed for abuse of executive power in apprehension and deportation rather than any flaw in the conduct of the trial or the evidence at trial.
• The court therefore held that the claimant was not entitled to statutory compensation under section 133. Separately, the Home Secretary had been entitled in the exercise of his discretion under the ex gratia scheme to decline payment in such unusual circumstances; his decision was not shown to be unfair, irrational, or unlawful.

Appeal allowed. The House held that section 133 (and article 14(6) ICCPR) does not require the Secretary of State to pay compensation where a conviction is quashed solely because the defendant was brought within the jurisdiction by unlawful executive conduct and there was no defect in the trial; on that basis the claimant did not qualify for statutory compensation. The Secretary of State was also entitled, in the exercise of his discretion, to refuse an ex gratia payment in the exceptional facts of this case. The Divisional Court's order was restored.

Trial and conviction at the Central Criminal Court (1990); conviction quashed by the Court of Appeal (Criminal Division) on abuse of process grounds: Regina v Mullen [2000] QB 520. Divisional Court (Administrative) refused judicial review of Home Secretary's refusal to pay compensation: R (Mullen) v Secretary of State for the Home Department [2002] EWHC 230 (Admin), [2002] 1 WLR 1857. Civil Court of Appeal reversed the Divisional Court: [2002] EWCA Civ 1882 (reported [2003] QB 993). House of Lords allowed the Secretary of State's appeal: [2004] UKHL 18.