About this case:

• Citation:
  [2023] NIKB 27
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Kevin Rooney

The court found that the refusal was rational and reasonable.

Background

In 1983 the applicant was arrested in connection with the murder of Adrian Carroll. He was a serving member of the Ulster Defence Regiment at the time. The applicant was interviewed, as were four of his colleagues, and they all made written statements confessing to their part in the murder.

However, the trial judge ruled that the applicant’s statement, the only evidence against him, was inadmissible. He was therefore acquitted. The other four defendants, “the UDR four”, were found guilty. Three of them appealed and were released. Following their release, they received compensation under section 133 of the Criminal Justice Act 1988.

In 1992, and on various dates subsequently, the applicant applied for compensation, but was persistently refused. In this application, he contended that the latest refusal was irrational, and failed to take into account the Home Secretary’s guidance document of 2003 entitled ‘Practice in Administering the Statutory and Ex Gratia Schemes’.

He also argued that the minister wrongly believed that new evidence was required to show that the applicant had been completely exonerated, and wrongly read the words “completely exonerated” as being akin to a requirement to prove innocence.

In response, it was argued that the applicant had a meeting with the respondent in 2021, where the facts of his case were considered, but that this did not amount to a new application, and therefore no new application had been refused.

A 2021 letter from the justice minister stated that although the applicant remained eligible for ex gratia compensation, it would only be reconsidered if new facts emerged.

It was further clarified that the only grounds on which the application could be reconsidered would be if significant new information came to light which completely exonerated the applicant or which proved that there was serious default on the part of the police.

The ex gratia scheme

The International Covenant on Civil and Political Rights 1966 was ratified by the UK in May 1976. Article 14(6) provides that compensation can be awarded to someone who has been convicted of a criminal conviction which was later proven to be a miscarriage of justice. The Criminal Justice Act 1988 gave effect to this right.

The scheme allowed for compensation where a person had been convicted or where they had been charged and detained in custody. The scheme was discontinued in 2006, but any applicants, as here, who had applied before April 2006 were still eligible.

Speaking on the scheme in 1985, the then Home Secretary, Douglas Hurd, stated: “There may be exceptional circumstances that justify compensation […] facts may emerge at trial, or on appeal within time, that completely exonerate the accused person.”

The decisions of the ministers

In 2013, then justice minister David Ford rejected another application made by the applicant for an ex gratia payment. The applicant requested Mr Ford to provide the reasons for his refusal. The minister confirmed that he had not found that the applicant had established any of the exceptional circumstances that Mr Hurd had outlined.

Mr Ford confirmed that he had considered the application and concluded that the period in custody did not result from serious default nor had the applicant been completely exonerated. There were no other exceptional circumstances.

He noted that the ex gratia compensation would only be paid on the basis of complete exoneration, where facts emerge which established, beyond any doubt, that a person did not commit, or could not have committed, the offence. Mr Ford concluded that no such facts emerged in this case.

The applicant did not bring a judicial review challenge to the decision of Mr Ford. However, he highlighted to the court in this application paragraph 29 of the Home Secretary’s Guide on the topic, which states: “It is important to bear in mind that serious default and complete exoneration are only examples of ‘exceptional circumstances’ in which compensation might be paid.”

The applicant argued that the interpretation of the words “completely exonerated” in the Guide is not consistent with treatment by the courts. However, the respondent highlighted that any issues in relation to the interpretation of “completely exonerated” could have been raised in a challenge to Mr Ford’s decision.

The applicant argued that a new decision was communicated by letter in 2021. The respondent submitted that the applicant did not apply again for compensation, and that the minister therefore did not refuse such an application.

If the respondent did make a decision, it was merely that there was no proper basis to revisit the merits of the previous decisions, and was plainly reasonable and lawful.

Consideration

On the issue of whether a decision was made on the application in 2021, the court found that the minister — then Naomi Long — did make a fresh decision.

From the correspondence, the minister met the applicant, and his case was discussed at length. The applicant presented the minister with papers, and the minister advised that, if new facts relevant to his case emerged which had not previously been considered, then she would “look at the possibility of an ex gratia payment”.

The applicant wrote a letter to the minister requesting minutes of the meeting and a synopsis of the decision-making process. The minister replied enclosing the documentation requested by the applicant.

However, the decision made by the minister was that she could find no basis upon which to reconsider the application. The minister properly focused on whether there had been any change in the circumstances so as to warrant revisiting the decision.

As stated, the only grounds on which the application could have been reconsidered would have been if new information came to light which completely exonerated the applicant or which proved there was serious default on the part of the police. This was a rational approach and was plainly reasonable and lawful. It was also not a redetermination.

The decision also did not operate to reactive the clock so as to start time running again to challenge decisions refusing ex gratia payments in the past.

Conclusion

The court found that the application was out of time, there was no reasonable excuse for the delay, and time should not be extended to permit the application to be brought. Further, the applicant could not establish an arguable case on which there was a realistic prospect of success.

As such, leave to apply for judicial review was refused.