A.L.F. v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
1. The applicant, A.L.F., is a British national, who was born in 1963 and lives in Birmingham. 2. 3. On 18 October 2004 the applicant was convicted by a jury of four offences of indecent assault and two offences of rape involving oral and anal sex with his nephew. He was sentenced to seven years’ imprisonment. Permission to appeal was refused in January 2006. 4. On 9 January 2007 the applicant submitted an application to the Criminal Cases Review Commission (“CCRC”). On 12 June 2007 the CCRC referred his case back to the Court of Appeal on the ground that fresh evidence of a singular genital abnormality from which the applicant suffered had not been properly the subject matter of challenge by way of crossexamination of the complainant at trial. 5. On 15 December 2009 the Court of Appeal (Criminal Division) (“CACD”) upheld the applicant’s appeal against conviction. It noted that photographs and a medical report confirmed that the applicant suffered from a condition which caused a substantial degree of curvature of his penis; and that this condition had existed since birth. The applicant’s counsel at trial had been aware of his condition, although the medical report had not been available at that time. He had asked the complainant during crossexamination at trial whether he had noticed anything unusual in the applicant’s genitalia, to which the complainant had replied, “No”. In response to the follow-up question, “Nothing at all?”, the complainant had again replied, “No”. Counsel had subsequently failed to put to the complainant that if he was telling the truth he could not have failed to observe the unusual curvature of the applicant’s penis. The CACD was unable to see any rational tactical basis for counsel’s failure to adduce this evidence at trial. It therefore quashed the applicant’s convictions on the basis that they were unsafe, explaining: “18. ... [H]ad the evidence been adduced, it would have significantly undermined what the complainant said, since without some further explanation from him it is difficult if not impossible to see how he did not notice the condition of the appellant’s penis ...” 6. However, it added: “19. We underline that we have not heard from the complainant and our conclusion, since we have not done so, has no element of criticism of him. We are not finding that he did not tell the truth, we are merely concluding that in the light of the evidence now before us, this would have had a significant effect on the course of the trial, on the judgment of the jury and thus upon the safety of the verdicts.” 7. By the time of the CACD’s judgment, the applicant had already been released, having served his sentence. 8. In March 2010 the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”). His claim was suspended pending the judgment of the Supreme Court in R (Adams) v. Secretary of State for Justice ([2011] UKSC 18). The judgment in R (Adams) was delivered on 11 May 2011. 9. By letter dated 25 July 2011 the applicant’s solicitors were informed of the Secretary of State’s decision that the applicant was not entitled to compensation. The letter explained: “The case of R (Adams) ... has been considered in this context. In that judgment the majority of the Supreme Court set out its interpretation of the term ‘miscarriage of justice’ as follows...: ‘A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.’ In the light of that judgment, if the new or newly discovered fact which formed the basis of the reversal of the applicant’s conviction does not show beyond reasonable doubt that he was innocent of the offence of which he was convicted (which would amount to a miscarriage of justice for the purposes of the Act), compensation is payable only if that fact so undermines the evidence against him that it is beyond reasonable doubt that no conviction could possibly be based upon it. This is a demanding test.” 10. The letter indicated that the Secretary of State had considered the CACD judgment in the applicant’s case and had concluded that this test had not been met. There was no suggestion in the judgment of the CACD that a new or newly discovered fact demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court could convict. The Secretary of State explained: “... It cannot be said how the complainant would have dealt with the evidence of [A.F.’s] anatomy if it had been put to him. Nor is it possible to determine the effect of the complainant’s reaction to the evidence, or how the jury would have considered it. It is quite possible that the jury may have made the same decision despite the putative new fact that undermined certain elements of the evidence.” 11. On 19 October 2011 the applicant requested reconsideration of the decision. On 20 January 2012, his request was refused. 12. On 26 July 2013 the applicant’s Member of Parliament wrote to the Secretary of State for Justice on behalf of the applicant regarding his application for compensation. He submitted that the applicant’s claim should have been accepted on the basis, inter alia, that his prosecution should not have been brought. 13. By letter dated 20 August 2013 the Minister of State replied in the following terms: “... I cannot comment on why the decision was taken to prosecute your constituent. However, there is no suggestion in the Court of Appeal’s decision to overturn your constituent’s conviction dated 15 December 2009 that the prosecution had been improper. Indeed, although finding that the conviction was unsafe, the Court at paragraph 10 of its judgment plainly considered that the complainant’s evidence was capable of going to a jury ...” 14. In these circumstances there was no basis for reconsidering the decision to refuse compensation. 15. Details of the relevant domestic law and practice are set out in the judgment of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013 and the Chamber decision in Adams v. the United Kingdom (dec.), no. 70601/11, 12 November 2013.