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

A non-statutory compensation policy is construed objectively and purposively by the court. It should not be read with technical distinctions that defeat its evident purpose.

The ex gratia scheme for loss of liberty caused by serious default of a police officer or other public authority extends to extradition proceedings. A relevant charge may be the substantive allegation advanced to secure detention, even if it was not formally laid. The CPS, though acting for a requesting state, owes its primary duty to the court. That duty includes candour, disclosure of known material that destroys or severely undermines relied-on evidence, and refraining from participation in an abuse of process.

The appellant was arrested shortly after 11 September 2001 on suspicion of terrorist involvement. After seven days in police detention, he was immediately arrested under a provisional extradition warrant sought by the United States for alleged false statements in aviation documentation. He was remanded in custody until February 2002, principally because the CPS advanced allegations of a terrorist connection and an ongoing terrorism investigation.

In April 2002 the extradition charges were dismissed. The district judge stated that no evidence had been received to support the terrorism allegation. The appellant sought compensation under the Home Secretary’s ex gratia scheme, alleging that the minor extradition charges were used as holding charges and that the police and CPS had seriously defaulted in advancing unsupported allegations and withholding material.

The Divisional Court dismissed his judicial review claim on the ground that the scheme did not extend to extradition. The central issues on appeal were the scheme’s scope, serious default, and exceptional circumstances.

1. Appeal allowed. The Home Secretary’s refusal was founded on an erroneous interpretation of the ex gratia scheme. The compensation application was remitted for reconsideration in the light of the court’s judgment.

2. The court, applying the objective approach in R v Criminal Injuries Compensation Board, Ex parte Webb [1987] QB 74, held that it determines the meaning of a published policy. The policy must be read purposively rather than by a legalistic distinction between domestic criminal proceedings and extradition proceedings.

3. The scheme extends to detention in extradition proceedings where serious default by a United Kingdom police officer or public authority causes loss of liberty. A charge is not confined to one formally laid. Where an uncharged allegation is the real basis on which detention is obtained, the substance of that allegation may satisfy the scheme.

4. The CPS may act as lawyer for the requesting state, but its primary duty is to the United Kingdom court. It must not act unquestioningly on instructions that conflict with that duty. It must disclose known material which destroys or severely undermines evidence relied on by the requesting state, including on a contested bail application. It must not participate in proceedings it knows or ought to know are an abuse of process.

5. On the material before the court, there was a considerable body of evidence capable of showing serious default by the police and CPS. The evidence also strongly suggested that the extradition proceedings and opposition to bail were used to secure detention while terrorism allegations were investigated, rather than to try the minor non-disclosure charges. Those matters required reconsideration by the Home Secretary; the court made no final factual findings because the CPS and police were not represented.

6. The court added that lengthy remand on holding charges which would not otherwise justify custody is likely to breach Article 5 of the European Convention on Human Rights. A short period to obtain further information may be permissible, but several weeks’ detention on that basis will be difficult to justify.

7. The exceptional-circumstances provision was not a free-standing entitlement to compensation for any unjustified detention. It provided flexibility for cases akin to the first paragraph of the scheme. If the court’s construction of that paragraph had been wrong, the Home Secretary would nevertheless have had to consider the alleged and completely unsubstantiated terrorism charge as the substantive basis for the appellant’s detention.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the compensation application for reconsideration: [2008] EWCA Civ 72.
• Divisional Court (Administrative Court) Dismissed the appellant’s judicial review application, holding that the ex gratia scheme did not apply to extradition proceedings.
• High Court (Ouseley J) Refused permission on the serious-default ground, but granted permission on the arguable scope of the scheme and exceptional-circumstances issues.