[2016] CSOH 40




In the cause


Petitioner ;


Judicial Review of a decision of the  Scottish Ministers


Petitioner:  Bovey QC;  Paterson; Allan McDougall (Compensation Lawyers (Scotland), Livingston)

Respondents:  Duncan QC;  Ross; Scottish Government

9 March 2016

[1]        Early one February morning in 1999 a householder in Broxburn, West Lothian found the body of Yvonne Bessant or Davidson lying in a garden near to where she lived with Craig McCreight – the petitioner.  The police were called and a post mortem was performed that day.  Inquiries continued and inter alia witnesses were traced who alleged that the petitioner had admitted killing Yvonne.  Further forensic tests were done and some three years later he was tried at Edinburgh for her murder.  A jury convicted him and he was sentenced to life imprisonment.  He spent some seven years in prison before being released by the Appeal Court following a successful appeal.  Having heard fresh evidence the court unanimously found that there had been a miscarriage of justice.  By a majority, and without giving reasons, the court refused to authorise a fresh prosecution.  Mr McCreight now seeks compensation for the years he spent in prison.  His request has twice been refused.

[2]        At the hearings before me in May and November 2015 both parties lodged written submissions and I refer to these for their terms and in detail where appropriate.  It was agreed that I could and should decide the matter without need for any further evidence.  That is important.  A number of matters were agreed or, at least, not seriously disputed.  The body of the woman was found on or about 8 February 1999.  The petitioner was much later detained.  He was tried for her murder on 26 March 2002 found guilty on 18 April 2002 and sentenced to life imprisonment.  Some seven years later on 1 April 2009 his conviction was quashed following an appeal where the fresh evidence was led.  On 25 May 2010 he sought compensation under the then existing statutory and ex gratia schemes.  The application was refused and in 2013 he sought judicial review of that decision.  By agreement that refusal was reduced and the respondent reconsidered the matter.  On 14 April 2014 the respondent again refused compensation and that new decision (Number 6/8 of process) has resulted in the matter now before me.

[3]        Let me list the jurisprudence to which reference was made.  Some of the cases were looked at in detail but others were only looked at in passing.  In approximate chronological order they were:

Cordiner [1973] JC 16

R v Secretary of State for the Home Department ex parte Sheffield and Brook [1997] EWHC  843 Admin

King v East Ayrshire Council 1998 SC 182

R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1

R (Daghir) v Secretary of State for the Home Department [2004] EWHC 243 Admin.

McFarland for Judicial Review [2004] 1 WLR 1289.

Gilmour v HM Advocate [2007] SCCR 417

Boyle for Judicial Review [2008] NICA 35.

R (Raissi) v Secretary of State for the Home Department [2008] QB 836.

R (Adams) v Secretary of State for Justice [2012] 1 AC 48.

Dinnell v Scottish Ministers [2015] CSIH 7.

[4]        In opening, Mr Bovey read from Hansard 23 January 1986 where is found a statement made in the House by Mr Rifkind, then Secretary of State for Scotland, about “payment of compensation to persons who have been wrongly convicted of criminal offences …”.  (No. 16/16 of Process).  What the Minister said was this.  There was then no statutory provision.  (That came later with section 133 of the Criminal Justice (Scotland) Act, 1988 and is not an issue directly here.)  He spoke to the long standing practice of making ex gratia payments in exceptional circumstances.  The minister then contrasted the international article 14.6 obligations under the International Covenant on Civil and Political Rights (ICCPR) (again not an issue here).  The remainder of his statement covers other cases where a wrongful conviction has resulted from serious default on the part of a member of a police force or some other public authority; and there may be exceptional circumstances in cases outside these categories.  He concluded by referring to the method of calculating compensation and the involvement of an independent assessor.

[5]        Counsel continued by emphasising that the present case was taken under the ex gratia scheme where there was no need of a conviction or new evidence (as needed in ICCPR cases).  There was no mention of miscarriage of justice.  All that was necessary was time spent in custody following a wrongful conviction or charge resulting from serious default or other exceptional circumstances.  There was no mention of “reasonable doubt” and the scheme was not limited to out of time cases.  Any appeal would do.  He referred me at some length to the guidance (No. 6/13 of Process).  From the guidance he emphasised that the Scottish Ministers continued the former Scottish Office Policy from September 1999 and in the guidance examples were given of “serious default”.  These were not prescriptive and in any case did not automatically merit a payment.  Judicial error (not arising here) was not serious default but might give rise to exceptional circumstances.  Mr Bovey asserted that the present case was one of negligence and a failure to carry out proper investigation;  and it was not necessary to seek for, or to insist upon, complete exoneration.  That was only one circumstance and in any event had no basis here.

[6]        Counsel then moved quickly to look at some of the cases to show what was the proper way to make a decision.  Intending no disrespect, I will only summarise what he said here, as I will again, and later look more fully at the jurisprudence.    

[7]        Under reference to four cases counsel asked the question of what was the proper approach to the decision made in this case.  He looked first at Raissi, supra.  He was a pilot and alleged to have been on a flight training instruction course at Arizona at the same time as a pilot who was on board the plane which crashed into the Pentagon on “9/11”.  He was arrested at his home under the Terrorism Act, 2000 on suspicion of having been involved in “9/11”; he was questioned, de-arrested then re-arrested under a provisional extradition warrant issued at the requests of the US Authorities.  The warrant described minor charges (alleged deception about minor medical treatment and non-disclosure of a spent conviction) for which he would normally have expected bail.  However, he was remanded in custody because it was said he was a terrorist involved in “9/11” and the charges were only “holding charges”.  He remained in custody for four and a half months before being granted bail in February 2002 against opposition.  No evidence was ever produced to support the Terrorism allegation.  No charges were ever brought.  He had a very difficult time when in Belmarsh Prison (described (para 104) as graphic and chilling).  He made a claim for compensation under the ex gratia scheme.  That was refused.  The Home Secretary argued that there was no serious default and in any event the scheme did not apply to extradition.  It was also said he had not been completely exonerated.

[8]        The argument revolved round who decided the meaning of the ex gratia policy.  The Court of Appeal was of the opinion that the scheme should be interpreted in a purposive way and the proper question was what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation.  It was not for the Minister to decide what the policy meant and to what it applied.  In the result judicial review was granted and the matter remitted for reconsideration.

[9]        Mr Bovey mentioned Adams, supra, to give content to his mention of section 133.  That was a 9 justices decision of the Supreme Court on three appeals where on critical points the court was split.  Some 38 authorities were referred to with a further 83 cited even from the days of capital punishment in England.  In the lead case there were two interveners viz Justice and a man Barry George.  Adams had been convicted of murder and his appeal against conviction failed.  Nine years later his case was referred by the Criminal Cases Review Committee.  The basis argued was defective representation due to the late change of counsel and a failure to use important evidence at his trial.  Some of the material was disclosed and available.  The other two cases were from Northern Ireland (MacDermott and McCartney).  Both were murder cases before a Diplock court ie: no jury.  The sole evidence against them was admissions to the police.  Each was tried separately before the same judge and convicted although police ill treatment was alleged.  Following a reference the convictions were quashed.  In all three cases claims for compensation were made under section 133 and refused.  In the result before the Supreme Court the decision was upheld in Adams and overturned in both Irish cases.  The initial point Mr Bovey made about this case was to observe the remarks of Lord Phillips about the difference between section 133 and article 14.6 of the ICCPR.  Both require a miscarriage of justice.  The Act speaks of “beyond reasonable doubt” the Convention of “conclusively” (see at pages 66 and 67).  The scheme of both provisions was not exactly the same.

[10]      Counsel next looked at ex parte Sheffield and Brook, supra, a single judge decision and again an ex gratia case.  The facts concerned an auction and a forged bank draft.  Both men were convicted and the convictions were later quashed due to the failure of the police to disclose that an important witness had a prior conviction.  There was no complete exoneration.  In refusing compensation, the Minister took the view that the failure was not wilful or deliberate and this did not constitute serious default.  The case appeared to offend the rationality test in Wednesbury terms.  Counsel commended the discussion of the meaning “serious” on page 8.  The judge granted judicial review.  He refused leave to appeal being of the opinion that it was a “one-off” case.

[11]      Finally on this point he looked at Regina Mullen, supra.  It is a difficult case because the House of Lords was not wholly unanimous.  It concerned a conviction for conspiracy to cause explosions initiated by the IRA.  Mullen had been illegally deported from Zimbabwe, tried, convicted and imprisoned.  After ten years in prison his conviction was quashed due to the abuse of process.  It was never suggested he was innocent of the offence.  He applied for compensation under section 133 or ex gratia.  At paragraph 4 Lord Bingham had given as an example of a reason for a wrongful conviction, flawed expert evidence.  That was what had happened here.  In the result no compensation was awarded.

[12]      Counsel then looked at what he said had happened here.  There was no doubt the petitioner had spent time in custody and that his conviction was wrongful.  That had been caused by serious default on the part of the police or other public body.  The respondents had erred in law and taken an irrational approach when they rejected the findings of the Appeal Court in quashing the conviction.  It was unreasonable not to accept as serious default what appeared in the Opinion of the court at paragraphs 93 and 94.  The Ministers should not have gone behind the reasons of the court where the proceedings were contested at a public hearing.  It was irrational to prefer one expert to the Appeal Court.  That expert had only looked at a limited issue.  The preparation and presentation of this prosecution raised a strong inference of serious default.

[13]      Counsel then looked again at some of the cases to analyse from them where Ministers had refused compensation notwithstanding the quashing of a conviction, and where that decision had been upheld.

[14]      I need not rehearse all of what Mr Bovey said here as I will revisit it later.

[15]      Counsel then devoted some time in his argument to comparing what was said at the trial about the material matters, what was the different evidence before the Appeal Court and its findings and finally what was said in Dr Turner’s eleven page report (No. 6/8 of Process).  This chapter of the argument seemed at times to invite me to make choices within the different sets of evidence.  I am not convinced that without proof such is my task.  In the first place the jury had to decide on this and other evidence whether the Crown had proved its case beyond reasonable doubt.  The Appeal Court had to ask whether, having heard new evidence, there was a miscarriage of justice.  The Ministers ask a wholly different question as to whether on all the evidence, and their own investigation, there has been serious default within the meaning of the scheme.  I do not think it is for me to decide which of the forensic, scientific or chemical theories is correct.  For example I do not have the transcript of the trial.  I do not think in judicial review that is a proper or correct approach.  What I have to determine is whether the decision of the Ministers is one they were entitled to make and one which is not irrational.  It is not for me to conduct any fact finding exercise or to undertake a value judgement.

[16]      With these comments I will, however, summarise what Mr Bovey said about these matters.  Dr Turner, he said, did not meet the criticisms of the Appeal Court and it was wrong to “salami slice” (counsel’s expression) at the Court’s judgement.  The proper question was to ask why the analysis was not done.  It was wrong to focus on why it was not Dr Fineron’s fault it was not carried out.  If he did not know what the case was about he should have been told.  There was the serious over calculation by Dr Okely on two separate matters viz inhalation and post mortem redistribution.  Dr Fineron and Dr Okely spoke beyond the area of their expertise.  It was for the court to say what the evidence at the trial meant and not for the Minister, in effect, to override that by preferring Dr Turner.  Counsel emphasised his four propositions in the Petition para 18.

[17]      In relation to causation he said I should take a purposive approach.  It was clear that the high level of chloroform did have a causative element.  He referred again to Adams.  Here the default was serious and the Ministers (No. 6/8 of the Process paras 27 to 35) were wrong to conclude otherwise.  “Flawed expert evidence” (Lord Bingham in Mullen para 4) was enough for the necessary standard of error where it was plain that something had gone seriously wrong.  There were other examples such as failure to disclose a conviction and the scheme was meant to cover both omissions and commissions.

[18]      Next he addressed whether those against whom serious default was alleged were “… members … of (a) … public authority …”.  In the present case they were.  The key was the nature and extent of their involvement in the prosecution.

[19]      Counsel referred to Daghir, supra, which was an ex gratia case.  That involved an error by a trial judge.  A person who participated in the prosecution did not cease to fall within the scheme by being allowed to give expert evidence.  Employment was not determinative.  The key was the prosecution and that gave a purposive content to the Scheme.  By way of further example members of a police force can be expert witnesses eg drugs, fingerprints.  Doing a post mortem is a public function.  To exclude those involved here would vitiate the best part of the scheme and be counterintuitive.  He referred me to Raissi at paragraph 135.    

[20]      Finally he turned to look at “exceptional circumstances” outside the normal categories, and read from his Note of Argument.  The point was, he said, that something exceptional can be freestanding even if all else fails.  It was wrong to test the matter by looking for complete exoneration.  The fact that no new prosecution was allowed favours the making of an award.  Counsel looked at certain passages in Raissi.  To an extent what is in the Note of Argument goes over the same ground as before (known as limb one) and I also pause to observe that Raissi was a case where there was complete exoneration.

[21]      After Mr Duncan had spoken I allowed Mr Bovey a reply and it was to this effect.  He asked me not to be influenced by Adams where the issue was “wrongful conviction”.  Counsel accepted that the Ministers were entitled to make further enquiries but should not have used their expert to usurp the Appeal Court which itself was not looking at “Serious default”.  Finally he invited me to look at Professor Flanagan’s criticisms of Dr Turner (No. 6/11 of Process).

[22]      In his response Mr Duncan began by adopting his Note of Argument, invited me to refuse the Petition and sustain the respondent’s 1st, 2nd and 3rd pleas in law.  He began with what he called additional chronology and made three points.  In the first place the woman was found in a garden in February 1999.  The petitioner made at least two confessions to separate people.  They did not go to the police until August 2000.  There was accordingly 18 months delay before the police heard anything about chloroform and they would begin work on that.  In the meantime the samples taken would be bound to degrade.  Secondly, he said a full post mortem had been performed and the cause of death did not involve chloroform.  Thirdly, only at the trial in April 2002 when Dr Flanagan was interposed, did “ingestion” become an issue.  Counsel referred me to the Appeal Court decision paras 6 to 18.  It is clear from what was said to the jury by counsel and the trial judge that the administration had either been inhalation or ingestion.  The jury were told that if it was ingestion they could not convict the petitioner.

[23]      Against that background summary, counsel posed the question of whether the actions and conclusions of the experts before the trial amounted to serious default.  It was important to look to what the Appeal Court had found and said.  It could not be the case that the Appeal Court findings were determinative of what the respondents had to decide.  For that reason it was constitutionally correct for the Ministers to be able to re determine matters.  Thus it was important to see what findings of serious default the Appeal Court made and what were their reasons.  Once that was known the next question was what aspect of the Ministers’ determination overlapped, contradicted or challenged it, and as a result what legal issue arose when there were no live criminal proceedings.  This court, by judicial review, could not review the High Court and the independence of the judges had to be respected.  However, what the Appeal Court did was to ask itself a question quite separate and different to the one facing the respondents.  Counsel referred to paragraph 95 of the decision (No. 6/14 of Process) and what was said in Gilmour v HM Advocat, supra.  The only issue they had to determine was whether the new material was likely to have had a material bearing on the determination of the jury.

[24]      By stark contrast the respondents had a wholly different task.  Counsel then looked at some of the cases.  McFarland, supra, was instructive.  The tension over making payments was plain.  Some recipients may be wholly innocent and others lucky to escape what was due to them (para 6 and 7).  It would be rare for the executive to doubt judicial decisions and ab initio the executive had to be guided by what the court had actually said (about serious default) (para 16).  What had to be the test was what the Minister was “entitled” to do (para 32).  He was not “bound” to give or refuse provided he avoided irrationality.

[25]      Counsel then looked at Adams which was an altogether more complex case.

[26]      It was a case under section 133 and was concerned with what was the correct test under that section where there had been a miscarriage of justice.  It was also concerned with what was meant by “miscarriage of justice” and the phrase “newly discovered facts”.  There was no issue about serious default which is the issue in the present case.  Counsel took me to paragraph 37 where the tension between paying and not paying is succinctly set out at letter A.  He then traced the four categories of case which can arise viz three involving fresh evidence and one a serious flaw in the investigation of the trial itself (paragraphs 38 to 57).  He looked at paragraph 101 and said the Minister should not be concerned about what a reasonable jury would do;  and although guided by what the Appeal Court has said in reversing the conviction is entitled to look at the new matter and draw his own conclusions.  That was also the opinion of Lord Kerr (paragraph 169) (See Lord Clark paragraph 209;  the Lord Chief Justice paragraph 252 and Lord Brown paragraph 282).  Counsel emphasised in particular what was said by Lord Judge.  The appeals (on compensation) were allowed in the Irish cases because they should not have been convicted or even prosecuted (paragraph 182).    

[27]      There was no hard edged rule and there were four guidelines.  Firstly, the respondent must make up his own mind.  Secondly, he had to take his cue from the Appeal Court.  Thirdly, the preponderance of the authorities shows that there may be cases where a different decision is reached.  Fourthly, where this court considers that a challenge by review depends on showing that the respondent has “trampled” (counsel’s words) into the Appeal Court’s territory the court should give the most anxious scrutiny to both decisions and ask whether there was any overlap.  The functions were distinct and there should be clear “blue water” between them.

[28]      Mr Duncan then asked what findings of “serious default” had actually been made,  had the Appeal Court (para 94) said there was serious default?  While the petitioner’s Note of Argument said that (para 3), senior counsel had not gone as far.  The fresh evidence established three discrete conclusions (one of which was conceded).  On the two other points the evidence at trial was “erroneous” that did not amount to serious default and the word erroneous was not a synonym for it, else it would do violence to language.  Not every error was negligent and allowance must be made for the pressure of giving evidence.  Unless the Minister (respondent) could interrogate these errors he could not perform his duty and adhere to the policy.  The highpoint of the Appeal Court was in para 94 viz “Bad theories were enacted on wrong and incomplete facts”.  The question was, was this enough to amount to “serious default”?  It was easy to be wise after the event.

[29]      Counsel then embarked on an analysis in general and in particular about the evidence given at trial and later.  It was unfair to say Dr Fineron acted outwith his expertise.  The issue looked at in the trial was intoxication by chloroform, not how it arose.  Two witnesses had to be recalled (Fineron and Busuttil) and neither concluded ingestion.  They merely said there was no evidence of it.  Professor Pounder was wrong when he said they had excluded it.  Even he accepted that the case was a difficult one from the scientific point of view.  Also, when Pounder (para 65) mentioned that the Crown evidence about ingestion was on a spectrum, that could never be serious default.

[30]      The Appeal Court had made no findings determinative of any fault by Fineron in the way he gave evidence and the later criticism had no proper specification in the context of the facts.  For those reasons the respondent was entitled to undertake his own analysis, take the advice which was required.  The alleged “bad theory” had to be tested.

[31]      Nor could it be said that the facts before the trial court were wrong and incomplete.  The matter had to be judged against what actually happened.  At the time the death was properly investigated and at the post mortem there was no reason to look for chloroform.  That suggestion came 15 months later and before that was said there was no usual and normal practice to look for it.  Again the samples had all deteriorated and in that context it could not be said that what was reported amounted to serious default.

[32]      Mr Duncan then looked at the decision letter (No. 6/8 of Process).  It had carefully considered all relevant matters including the opinion of the Appeal Court.  The decision (Annex A) clearly shows what was done and the oral evidence was revisited in detail (para 14 onwards).  There was some vague suggestion in the Petition (paras 18 and 21) that others were at fault in the general investigation.  It was not stated who they might be.  Such a suggestion was irrelevant.  Also as a matter of detail Dr Okely’s position on redistribution could never amount to serious default.  He was after all a toxicologist.

[33]      The Ministers had not adopted a wrong test for what was “serious default”.  As seen in the Note of Argument the Ministers did ask whether Fineron’s conduct had fallen “far below the standard of care or propriety reasonably expected of an expert witness” (para 23).  They properly took account of Dr Turner’s evidence in concluding that his conduct could not be so described (paras 24, 25).

[34]      As to causation the petitioner had to show that the alleged serious default caused a wrongful conviction.  That is not supported by the comments of the Appeal Court (Counsel noted that the Petition had confused the matter in paras 19 and 20 by referring to a “miscarriage of justice”).  Having decided what they did about Dr Fineron the respondents did not need to consider causation so far as he was concerned, and their view about Dr Okely was not irrational.

[35]      Mr Duncan concluded with three final points.  On the issues of Public Authority and what was exceptional he simply referred to his Note of Argument paragraphs 30 to 41 and the case of Dinnell, supra.  Finally, he said that none of the detailed criticism took the petitioner anywhere.  There were insuperable problems about showing serious default and establishing causation.  Even if one reason could be criticised the others were “stand alone” reasons unimpeachable.  He referred me to King, supra. In his response counsel drew my attention to his Note of Argument page 10 footnote 20 and the case of Mullen.

[36]      I now want to look again at some of the cases cited to me not especially for their own facts but to analyse the results.  It has to be borne in mind that there is a difference in the wordings of section 133 from the wording of the ex gratia scheme.  The scheme does not even need there to have been any conviction.  In my view the cases show that few succeed in having a refusal of compensation judicially reviewed.  Some cases have been taken both under section 133 and the ex gratia scheme.  It should also be borne in mind that under the scheme “serious default” is a very high threshold.  (Raissi at paragraph 132).  It is further of importance that substantial sums from the public purse have sometimes been paid.  (I refer to the speech of Lord Brown in Adams at paragraph 272).

[37]      In section 133 cases judicial review was refused in Adams and Mullen where there was no dispute about guilt.  It was granted in the two Irish cases heard along with Adams (MacDermott and McCartney in new facts about police behaviour).

[38]      Ex gratia cases which did succeed are ex parte Sheffield and Brook where serious default was found;  Raissi, an extreme case of serious default where there had been no conviction and Dinnell, which was reviewed as exceptional due to the length of the appeal procedure.  Cases which failed were Mullen, where there was undoubted serious default which had to be overlooked.  McFarland (the plea bargain case) also failed in spite of the outrage by the House at the behaviour of the trial judge.  In view of what was said in that case by the Irish Court of Appeal the decision of the Minister could not be faulted and their criticism of the trial judge was mild indeed.  Cases from Ireland seem to be in a special category.  Whether this was due to the “Diplock Courts” or the “troubles” I can only speculate.  Daghir was also a case which failed all three applicants.  It is clear from the report that the very experienced judge (Hooper J) had a degree of unease about the scheme.  There were in fact three cases, one about sales of armaments and the other two (Forsyth and Dimond) arose out of the collapse of the Polly Peck empire and the behaviour of its owner Asil Nadir.  In each case it was alleged that the trial judge had made serious mistakes.

[39]      The only case where review was granted under section 133 and the scheme (by majority) is Boyle, supra, where fabrication of evidence by the police was an issue.  Even in that case the judges on the appeal then at first instance and on the appeal on the judicial review were not all unanimous as to whether what happened amounted to serious default.  I should briefly mention again King in this general context of judicial review.  It brings me good memories, but I am not sure it truly covers the present case.  There was a degree of delay and in the Outer House there was a proof in the judicial review.  Only in the Inner House and at a late stage was a new and different argument presented.  By then the school had closed and the Division declined to interfere.  I am not persuaded it is truly in point for me.

[40]      With these remarks in mind I turn to the present case before me.  What is sought to be reduced is the respondents letter No. 6/8 of Process dated 14 April 2014.  It contains a reasoned decision in Annex A with reports by Dr Turner in Annex B and C.  The role of Dr Turner was to assist in the consideration of all technical matters.  It is not disputed that she was well qualified to undertake this task.  In my opinion the Ministers were entitled to make their own inquiries into the whole matter before deciding, at their discretion, whether any payment should be made under the ex gratia scheme.

[41]      I consider this to be so for a number of reasons.  The matter is complicated and involved medicine, science and opinion.  Even after the Appeal Court ruling it is clear that there was a continuing dispute over what was “default” and further, whether it was “serious”.  It cannot be the law that the ruling of the Appeal Court could be determinative of these matters, though great weight has to be accorded to what they said.  In making up their collective minds the respondents have the duty to find what is established.  That is clear from a general reading of Raissi where matters not before the court were relied on (paras 131, 147).  The respondents must also act in a fair way (McFarland para 41).  Finally no case was cited to me to suggest that the respondents could not make their own investigations.

[42]      Two other matters of detail fall for comment.  In the first place at the date of death the circumstances were not treated as a crime and at the post mortem there was no suggestion at first of chloroform, far less how it may have entered the body.  Secondly none of the persons criticised were represented at the hearings before me and, as I have already said, I have been asked to decide the case without evidence.  Accordingly I am of the view that it would be quite wrong for me to say whose theory and practice in this area is the correct one.  That is a task I am unable and not qualified to perform.  The Appeal Court had to answer the question of whether there had been a miscarriage of justice and nothing more.  In particular they, wisely, did not speculate of what a jury might have decided if the case had been “conducted on an entirely different basis” (para 95).  The Ministers have to address a wholly different question which is, inter alia, has there been “serious default”.  I can only interfere with that decision on traditional Wednesbury grounds.

[43]      Let me now resume consideration of No. 6/8 of process.  The application was refused.  They deal first with Dr Fineron pre-trial and conclude, on advice, that there was no “serious default”.  As to what he said at the trial they acknowledge fault in evidence (para 19).  With the benefit of the competing reports and their own advice they reject any question of bias.  In paragraphs 27 to 35 and under reference to authority (cited to me) they do not find the default to be serious.  The test they set is a high one (para 28) and I pause to observe again that this is in line with Raissi (already referred to).  They finally conclude (paras 36 to 43) that when he gave his evidence he was not a member of a public authority.

[44]      In relation to Dr Okely and his colleague they do find arithmetical error to be “serious default” but when acting as expert witnesses they were not members of a public authority.  They do say, however, that this mistake did not result in a wrongful conviction, indeed it supported the petitioner’s position at trial about ingestion of chloroform.

[45]      Finally (paras 50 to 55) the respondents consider whether what occurred can be described as “exceptional” under the scheme.  They take account of the period spent in custody, the fact that there has been no exoneration or retrial.  They look again at the arithmetical error in the context of the trial.  These matters are weighed in the balance and the conclusion is against “exceptional”.

[46]      Dr Turner’s report deals only with Dr Fineron.  She considered eight criticisms and had available to her 43 documents including evidence at the trial.  She lists eight medical literature references.  I do not need or intend to rehearse the detail of her advice.  On all the points put to her about Dr Fineron she has exonerated him and in particular about bias.  Her only criticism is that he overstated his evidence in one area (blackened stomach para 9).  That was conceded.  Clearly the respondents have placed reliance on her advice against the whole background of the case and the other evidence which was before the jury at the trial.  They have concluded that there was no serious default.  They have looked at all the relevant matters raised and have not failed to consider any.  In particular they have addressed the question of whether the case could be regarded as exceptional.  The Ministers have given full reasons and backed them with an expert’s report.  It could be said that they are differing from the strong criticisms of the Appeal Court.  That is true, although the question to be answered is a different one.  As I have already said they are entitled to investigate and to take a different view provided the reasons given justify that.

[47]      In the result I am clearly of the opinion that this Petition cannot succeed.  I do not find any merit in the petitioner’s case.  There was strong and compelling evidence against him including two confessions and in my opinion he falls into the second category described by Lord Bingham in McFarland para 7 H.  Also what has happened here with the Appeal Court is merely an example of the vindication of the rule of law, not the righting of a mistaken verdict.  (See the opinion of Lord Brown in Adams at page 140 C, quoting from Mullen in the Divisional Court).

[48]      The cases cited to me are of course, all fact sensitive and only examples.  Where serious default was found it was so egregious as to be plain, eg Raissi, and where something was exceptional the court would “know it when it saw it” (Daghir para 9).  What happened here is in neither category in my opinion and on the material before the respondent I am quite unable to say that the decision taken to refuse payment was in any way irrational.

[49]      There remain some other matters on which I must give my view as they were argued and the matter may go further.  This relates to whether Fineron and Okely were at the relevant time members of a public authority.  The authorities are not wholly clear on this point and Daghir (which concerned the judiciary) is not really in point.  In Raissi a more broad approach was taken to persons in the CPS some of whom were not named.  Were it necessary to decide the point I would have found in favour of the petitioner on the grounds that they were both part of the prosecution no matter who was their employer at the time.  Any other result seems to me artificial.  However, in view of my main conclusion it does not afford any ground for judicial review.

[50]      Finally there is causation.  On the one matter where serious default is conceded (the arithmetic) it cannot be argued that it caused any wrongful conviction.  Indeed the evidence before me shows that it favoured the line adopted by the petitioner on ingestion.

[51]      I will accordingly repel the 1st, 2nd and 3rd pleas in law for the petitioner and refuse to pronounce the order sought in Article 5.  I find it unnecessary to deal with pleas in law 4 and 5.  I sustain the 1st, 2nd and 3rd pleas in law for the respondents and dismiss the petition.  I will meantime reserve all questions of expenses.