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Mullen, R (on the application of) v Secretary of State for the Home Department
Factual and Procedural Background
The Respondent was convicted by a jury in 1990 of conspiracy to cause explosions after substantial quantities of bomb-making materials were discovered in a flat he had rented in The City. Prior to trial he had been forcibly returned from The Country to the United Kingdom in circumstances later condemned as a “gross abuse of executive power.” After nearly ten years’ imprisonment, the Court of Appeal (Criminal Division) quashed the conviction on abuse-of-process grounds, finding serious unlawful collusion by British and foreign authorities in securing his presence before the court.
The Respondent then sought compensation from the Home Secretary under section 133 of the Criminal Justice Act 1988 (enacted to implement article 14(6) of the ICCPR) or, alternatively, under an ex gratia scheme announced in ministerial statements. The Home Secretary (hereafter “Appellant”) refused. The Divisional Court upheld that refusal, but the Court of Appeal reversed it and ordered compensation. The present appeal to the House of Lords is by the Appellant, seeking restoration of the Divisional Court’s order.
Legal Issues Presented
- Does section 133 of the Criminal Justice Act 1988 obligate the Appellant to pay compensation where a conviction is quashed for abuse of executive power but no defect is shown in the investigation or trial and no proof of innocence is established?
- Did the Appellant act unlawfully or irrationally in declining, under the ex gratia compensation scheme, to pay the Respondent in these circumstances?
Arguments of the Parties
Appellant's Arguments
- Section 133, mirroring article 14(6) ICCPR, is engaged only where a new fact shows beyond reasonable doubt that the convicted person is innocent; alternatively, it applies only to failures in the investigative or trial process, not to executive misconduct occurring beforehand.
- The Court of Appeal erred by treating any reversal of conviction meeting section 133’s procedural conditions as automatically attracting compensation.
- Under the ex gratia scheme the Respondent had not been “completely exonerated,” and paying public funds to someone whose guilt remains undisturbed would be an “affront to justice.”
Respondent's Arguments
- Once the statutory conditions (reversal out of time on new facts) are satisfied, section 133 confers an absolute right to compensation; proof of innocence is unnecessary.
- The abuse of process was so serious that it constituted a “miscarriage of justice” within the statutory wording, even though the trial itself was procedurally fair.
- Even if section 133 does not apply, the circumstances fall squarely within the ex gratia policy for serious defaults by public authorities.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Secretary of State, Ex p McFarland [2004] UKHL 17 | Difficulty and sensitivity of compensating acquitted defendants | Background reference to illustrate policy concerns |
| R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 | Jurisdiction to halt proceedings for executive misconduct | Relied upon by the Court of Appeal when quashing the Respondent’s conviction; distinguished here because no trial defect was identified |
| R v Looseley [2001] UKHL 53 | Characterisation of jurisdiction to remedy abuse of executive power | Cited to classify the Court of Appeal’s jurisdiction as a remedy for abuse, not proof of innocence |
| W J H v The Netherlands (UN HRC, 31 July 1992) | Interaction between presumption of innocence and compensation | Used to show that denial of compensation does not necessarily violate the presumption of innocence |
| People (DPP) v Pringle (No 2) [1997] 2 IR 225 | Domestic view on presumption of innocence post-acquittal | Referenced as consistent with the UN Human Rights Committee approach |
| Sekanina v Austria (1993) 17 EHRR 221 | State cannot voice suspicions after an acquittal on the merits | Explained why European jurisprudence did not assist Respondent, whose acquittal was unrelated to merits of charge |
| Leutscher v The Netherlands (1996) 24 EHRR 181 | Distinction between acquittals on and not on the merits | Example where suspicion may persist absent acquittal on the merits |
| Rushiti v Austria (2000) 33 EHRR 1331; Lamanna v Austria; Weixelbraun v Austria; Hammern v Norway; O v Norway | Prohibition on maintaining suspicion after merits-based acquittal | Cited collectively to show jurisprudence irrelevant because Respondent’s acquittal was procedural, not merits-based |
| McCann v UK (1996) 21 EHRR 97; McKerr v UK (2002) 34 EHRR 20 | Discretion to refuse monetary awards despite established Convention breaches | Used by Appellant to justify refusal of ex gratia payment |
| Fothergill v Monarch Airlines [1981] AC 251; Effort Shipping v Linden Management [1998] AC 605 | Use of travaux préparatoires—“only a bull’s-eye counts” | Supported conclusion that preparatory materials shed no clear light on “miscarriage of justice” |
| Fergus (1994) 98 Cr App R 313 | Examples of proven innocence via new evidence | Cited to show the statutory scheme is workable when innocence is demonstrable |
| Maaoia v France (2002) 33 EHRR 42 | Need to read ICCPR article 14(2) and 14(6) together | Referenced but held not to expand the scope of article 14(6) |
Court's Reasoning and Analysis
Five Law Lords unanimously allowed the appeal, though on slightly different rationales:
- Judge Bingham (leading on the narrow ground) held that section 133 is triggered only by failures of the investigation or trial process. The Respondent’s conviction was quashed solely because of pre-trial executive misconduct; the trial itself was fair and no new fact undermined the jury’s verdict. Hence the statutory obligation to compensate was not engaged.
- Judge Steyn preferred an even narrower reading: “miscarriage of justice” in article 14(6) and therefore in section 133 is confined to cases where new material shows that the person was in fact innocent. The Respondent’s involvement with the terrorist plot remained undisturbed; therefore no compensation was due. He also found the travaux préparatoires and comparative materials neutral or supportive of this restrictive view.
- Other members of the committee (Judges Scott, Rodger and Walker) agreed that, whatever the precise scope of “miscarriage of justice,” the Respondent’s case fell outside it because the abuse lay in his unlawful rendition, not in the conviction process.
- On the ex gratia claim, the House accepted that the Home Secretary had discretion to depart from policy where paying public money to someone whose guilt was undisturbed would “affront justice.” The decision was neither irrational nor procedurally unfair.
Holding and Implications
APPEAL ALLOWED. The order of the Divisional Court refusing compensation is restored; the Respondent receives no payment under either section 133 or the ex gratia scheme.
Implications: The decision clarifies that compensation under section 133 is confined to narrow categories—either demonstrable innocence (per Judge Steyn) or at least failures within the investigation/trial process (per Judge Bingham). Executive misconduct that does not taint the fairness of the trial does not by itself ground a statutory right to compensation. The ruling affirms broad ministerial discretion under the ex gratia scheme and sets no new precedent requiring compensation where guilt remains undisturbed.
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