| Judicial Review — Ex gratia compensation scheme — Scope of scheme — Minister’s policy statement introducing scheme to compensate those detained in custody following wrongful conviction or charge — Whether applicable to detention pursuant to failed extradition proceedings — Appropriate test in interpreting ministerial policy statements
R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72; [2008] WLR (D) 49
CA: Sir Anthony Clarke MR, Smith and Hooper LJJ: 14 February 2008
The court was entitled to decide the meaning of a ministerial policy introducing an ex gratia compensation scheme. The purpose of the policy in question was to compensate those who had spent a period in custody resulting from a serious default on the part of a police officer or some other public authority, such as the Crown Prosecution Service. It was not limited to a period in custody following a wrongful conviction or charge, but applied to a person detained for the purpose of extradition proceedings where there had been serious default by the CPS or the police.
The Court of Appeal so held, allowing an appeal by Lofti Raissi from an order of the Queen’s Bench Divisional Court [2007] 4 All ER 225, who dismissed his claim for judicial review of the decision of the Secretary of State to reject his claim for compensation under a scheme introduced and explained by Mr Douglas Hurd, as Home Secretary in a statement to Parliament (Hansard (HC) 29 November 1985, cols 689-690).
The claimant was the subject of extradition proceedings instituted by the United States’ Government. The extradition warrant related to minor charges for which he would normally have been entitled to bail, but he was remanded in custody on the holding charges because it was said that he was a terrorist, involved in the World Trade Centre atrocities. He remained in custody for four and a half months until a judge, having received no evidence at all to support the allegation of terrorism, dismissed the extradition proceedings. Since then the claimant had not been the subject of any terrorism charge anywhere.
HOOPER LJ, delivering the judgment of the court, said that in R (Daghir) v Secretary of State for the Home Department [2004] EWHC 243 (Admin) at para 24 it was agreed that the appropriate test was that of Lawton LJ in R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74, 78: “the court should not construe the scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation …”. Nevertheless the Divisional Court, basing its conclusion on In re McFarland [2004] 1 WLR 1289, held that it was for the minister to decide to what his policy applied and what his policy meant, and provided that his interpretation was one which a reasonable minister could reach then that interpretation would be upheld by the courts. However, In re McFarland did not prevent the present court from deciding what the policy meant. While accepting that it could be worded in a more modern way, the court would adopt the Webb text. Adopting a purposive approach, the scheme could not be interpreted to exclude detention which resulted from the serious default of the police or a public authority in the context of extradition proceedings. Although, in general, the role of the police in extradition proceedings was simply to execute the warrant on instructions, their role in any individual case was a question of fact depending on the circumstances. There was evidence of the involvement of the police in the investigation of the terrorism aspects of the case and evidence that the actions of the police had resulted in false statements being made to the courts contributing to the decision to refuse bail. Similarly, although the CPS acted as representative of the requesting state, its primary duty was to the court. The CPS would be in breach of its duty to the court if, in opposing bail, it made allegations unsupported by the information available to it. Its duty to the court also included a duty to ensure that the requesting state complied with its duty of disclosure, a duty to disclose evidence about which it knew and which destroyed or seriously undermined the evidence on which the requesting state relied, and a duty not to take part in proceedings which it knew, or ought to know, were an abuse of the process of the court. On the evidence before the court it appeared that the proceedings were brought for an ulterior motive and that the opposition to bail, based on unsubstantiated assertions, was also an abuse. Having regard to their involvement in the extradition proceedings, the CPS could not be absolved from all responsibility for that state of affairs. Where there had been serious default by the CPS or police in the context of extradition proceedings, the ex gratia compensation scheme had to apply. There was sufficient evidence of serious default to require the Secretary of State to reconsider his decision. |
