Reversed conviction due to European Convention breach does not give rise to compensation
Northern Ireland’s Court of Appeal has dismissed an appeal against the High Court, which upheld a decision of the Department of Justice to refuse a man compensation pursuant to Section 133 of the Criminal Justice Act 1988 because the reversal of his conviction was not on the ground of a new or newly discovered fact.
Gerard Magee was arrested in 1988 in relation to terrorist offences, and had been held at Castlereagh Police Office, the principal location for interviewing terrorist suspects in Northern Ireland at the time.
Although he requested access to a solicitor, a 48-hour delay was authorised under the Northern Ireland (Emergency Provisions) Act 1987, and during that period he was interviewed by two teams of detectives.
On the sixth interview he made verbal admissions, and on the seventh he made a written statement of admission.
He was tried without a jury, and although he challenged the admission of his confessions, and the judges were aware he had made admissions before access to a solicitor, he was convicted in 1990, a decision which was upheld on appeal.
In 1994 the European Committee for the Prevention of Torture and Inhuman and Degrading treatment published a report which was highly critical of the Castlereagh Holding Centre, finding that the cumulative effect of its environment and the treatment of persons detained there could amount to inhuman treatment.
Mr Magee then commenced an application against the UK before the European Commission of Human Rights, which ultimately led to a judgment from the European Court of Human Rights in June 2000.
The Court found that there had been a violation of the appellant’s rights under article 6(1) of the Convention in conjunction with article 6(3)(c) as regards the denial of access to a solicitor.
Mr Magee then raised his conviction with the Criminal Cases Review Commission, leading to his conviction being quashed by the Court of Appeal in 2001.
It was found that due to the coming into force of the Human Rights Act 1998, and due to the finding of the European Court, the court would not be justified in concluding that the conviction was safe. It was therefore quashed.
Mr Magee then sought compensation for his conviction under s133(1) of the Criminal Justice Act 1988.
However, the Department of Justice refused to give compensation, finding that the wording of s133(1) required convictions to be reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.
The Secretary of State concluded that in this case, the conviction had been quashed because of a breach of Article 6 of the Convention combined with the Court of Appeal’s determination that it should give full effect to Article 6 under the Human Rights Act.
When Mr Magee challenged this decision through judicial review, it was found by the Court that the Secretary of State’s decision be upheld, as the reversal of the conviction was not on new or newly discovered facts or their discovery but “was the result of a legal ruling on facts which had been known all along”.
Further, it was observed that “with the benefit of hindsight” Mr Magee’s conviction should not have been quashed, as domestic law had developed finding that the direct enforcement of convention rights did not apply where a defendant convicted before the Act came into operation on 2 October 2000.
When this decision was appealed, the Court of Appeal expressly found that there were no new or newly found facts, and that “The Court of Appeal in Northern Ireland quashed the conviction on that ground alone , recognising that at the time of trial the trial judge could not take that into account because of the emergency legislation.
That put an end to proceedings until the Supreme Court delivered its decision in R (Adams) v Secretary of State for Justice; In Re McDermott and McCartney UKSC 18.
Mr Magee’s legal advisors discerned in the discussion of “new or newly discovered facts” in the judgment of Lord Phillips an argument that the law had been sufficiently altered as to justify the Department of Justice revisiting the decision to refuse compensation to Mr Magee.
However, the Department of Justice refused to reconsider the earlier decision of the Secretary of State, finding that it had no power to do so. When this was challenged through judicial review, it was found that the Department of Justice did have a discretionary power to reconsider the decision, and should do so.
The Department of Justice did reconsider, but continued to refuse compensation.
It was noted that while Supreme Court Lord Phillips extended ‘new or newly discovered fact’ to facts known about during the trial or appeal but where knowledge of the significance of those facts was lacking, in Mr Magee’s case it was the significance of the legal effect of the denial of access to a solicitor which might not have been fully appreciated, rather than the significance of the facts themselves.
This decision was in turn subjected to judicial review, with the High Court finding that:
“The instant case is an illustration … of where a change in legal standard subsequent to the trial and conviction of an applicant whose conviction was in accordance with the law at the time of trial cannot be viewed as the discovery of a new fact demonstrating that a miscarriage of justice has occurred for the purposes of Section 133 of the 2008 Act.”
This decision was then appealed, leading to the most recent proceedings.
The Court of Appeal noted that the earlier decision of the Court of Appeal upholding the right of the Department of Justice to refuse compensation to Mr Magee was, under the doctrine of stare decisis, binding on the court.
It was opined that there ought to have been no challenge to that decision unless the appellant could show that the law had been changed by the decision of the Supreme Court in the case of Adams in a way that impacted on the correctness of that decision.
Although it was argued on behalf of Mr Magee that a change in the law had occurred, the Court of Appeal upheld the High Court’s finding that the dictum of Lord Phillips was not the view of the majority, nor was it the ratio of the Supreme Court’s decision.
It was found that in the light of the case law and of the conclusion actually reached by the second Court of Appeal which ‘reversed’ Mr Magee’s conviction it seems clear to the Court that the Department of Justice was correct in arriving at the conclusion that there was no ‘new or newly discovered fact’ within the meaning of Section 133.