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Cite as: [2007] EWHC 8 (Admin)

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Neutral Citation Number: [2007] EWHC 8 (Admin)
Case No: CO/5906/2004


Royal Courts of Justice
Strand, London, WC2A 2LL
7th March 2007

B e f o r e :



Michael Boyle
- and -

Criminal Cases Review Commission


(Transcript of the Handed Down Judgment of
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Michael Boyle in person
Miss Beverley Lang QC (instructed by CCRC)
Hearing dates: 13th & 14th December 2006



Crown Copyright ©

    Mr Justice Tugendhat :

  1. On 28th July 2005 in this court Brooke LJ and Field J ordered that the Claimant be granted permission to apply for judicial review which he had sought in his Claim Form dated 24th November 2004. The Claimant, who is a serving prisoner, sought against the Criminal Cases Review Commission ('CCRC') orders to remedy what he called the unlawful delay in considering his case, and the refusal to refer his case back to the Court of Appeal Criminal Division. He alleged that the CCRC had failed to carry out their statutory duty in not making a referral.
  2. In his Claim Form he also stated:
  3. "There appears in the light of the Commission's omission to refer, to be an inherent bias towards my case, as it is very difficult given the merit and weight of evidence to support my grounds to see any other reason for their inaction, or procrastination".
  4. This was the second occasion on which the Claimant has been granted permission to apply for judicial review of a decision of the CCRC not to refer his case back to the Court of Appeal. The first occasion was on 31st March 2003. The circumstances and reasons are set out in the judgment of that date by Henriques J [2003] EWHC 1221 Admin. The background to the case, and the circumstances of that application, are conveniently to be found in the judgment of Henriques J
  5. He said:
  6. "2. The history of the matter is as follows. On 24th March 1997, before the Recorder of London and a jury, the Claimant was convicted of one count of attempted murder and two counts of possessing a firearm with intent to endanger life. He was sentenced to life imprisonment with a recommendation that he serve a minimum of fifteen years.
    3. On 6th November 1998, the Court of Appeal (Criminal Division), Auld L.J., Latham J. and Judge Myerson Q.C., dismissed the Claimant's appeal against conviction and declined to admit fresh evidence, pursuant to Section 23 of the Criminal Appeal Act 1968, from a Dr. Fackler, a leading expert on ballistic wounds on the grounds that the evidence could not afford any grounds for allowing the appeal, in that it could not unseat the inevitable conclusion that it was the appellant's hard-nosed bullet that caused wounds to the chest and elbow of the victim.
    4. The victim was a drug dealer by the name of Brindle. It was alleged that the Claimant had been commissioned to shoot Brindle and that he did so in the chest and left arm and thighs. When Brindle ran away he was pursued by the Claimant, who, it was alleged, intended to finish Brindle off. Unknown to the Claimant, the Irish Garda had tipped off the Metropolitan Police, who had staked out Brindle's home. When the shooting commenced they shot the Claimant, bringing him down. The Claimant's defence was that he did not intend to kill Brindle. He was acting under duress and only intended to wound Brindle by shooting him in the legs in order to persuade those gangland members threatening him that he had tried to kill Brindle, whilst in reality he had no such intention. He claimed, therefore, that the shot that hit Brindle in the chest was not a shot from his gun but was a shot fired by a police officer.
    5. In September 1995, standard police ammunition was soft-nosed. It distorts and fragments on hitting bone. The Claimant used hard-nosed ammunition when firing at Brindle. That ammunition is called FMJ (full metal jacket ammunition) and it does not fragment. Mr. O'Callaghan, for the Crown, gave evidence at the trial that the bullet which hit Brindle in the chest passed through his arm and elbow and the absence of fragmentation at the elbow indicated that the bullet used was an FMJ bullet.
    6. There was an abundance of evidence at the trial that no police officer had used FMJ bullets, and police officers and an eye witness, a Mrs. Staunton, gave evidence that no police officer was in a position to cause the chest wound to Brindle.
    7. The Court of Appeal dismissed the Claimant's appeal and in due course [in fact 17 June 1999] the Claimant sought a reference to the Court of Appeal by the Criminal Cases Review Commission. His principal ground on which he sought a reference was that his own wound was caused by FMJ ammunition and, accordingly, he argued the police must have been using that ammunition. The Claimant's wounds had not been the subject of investigation at his trial.
    8. By letter dated 30th May 2000, the Commission had informed the Claimant that there was no prospect of his conviction not being upheld. There was no evidence whatsoever that his own wound was caused by FMJ ammunition nor was there any evidence that the police ever were issued with or had used FMJ ammunition.
    9. The Commission's final decision was communicated on 25th July 2000 by Mr. Baden Skitt, who pointed out that it was the one bullet which caused injury to both Brindle's chest and to his elbow without fragmentation that established that an FMJ bullet had been used. The letter concluded that the evidence was overwhelmingly to the effect that the Claimant's bullet caused Brindle's chest injury.
    10. By way of response to this letter, [on 23 October 2000] the Claimant sought to Judicially Review the decision of the Criminal Cases Review Commission and contended, firstly, that Mr. Skitt, the writer of the letter, was disqualified from dealing with the case by reason of bias or an appearance of bias based on the fact that he was formerly an Assistant Commissioner to the Metropolitan Police, and secondly, that the Commission's decision was unreasonable in failing to address his arguments and evidence that the armed police had used FMJ ammunition. His application was refused on paper by Mr. Justice Ouseley on 5th December 2000, and on 23rd May 2001 Mr. Justice Stanley Burnton heard a renewed oral application. He refused permission by way of a judgment handed down on 11th June 2001.
    11. By way of a concluding paragraph to that judgment Mr. Justice Stanley Burnton observed that he had excluded from consideration ballistic evidence that had been obtained by the Claimant since the decision of 25th July 2000 on the basis that the lawfulness of its decision could not be challenged on the basis of evidence not put before it. He did however suggest to Mr. Boyle that there was nothing to prevent Mr. Boyle asking the Commission to reconsider his case on the basis of that new material.
    12. This was a reference to evidence obtained by the Claimant from Dr. Graham Renshaw, dated the 8th April 2001, to be found at pages 100 - 103 of bundle 15, and a report from David Mason, a ballistics expert, of 27th January 2001, to be found at pages 111 - 120 of the same bundle. The essence of Dr. Renshaw's report was to the effect that further medical reports upon the Claimant might be able to shed new light on the issue of whether the Claimant fired the shot that caused the wound to Brindle's chest. The Commission indicated by letter, dated 1st May 2001, that it would make further enquiries and contact the Claimant again. On 25th May, the Commission wrote "On 25th July 2000 the Commission made a decision not to refer your conviction to the Court of Appeal. That decision still stands. Since then you have sent us further material which you had not asked us to consider. We intend to examine that material to see whether it leads us to alter our decision taken last year."
    13. Thereafter, the Claimant continued to send material to the Commission during June and July 2001, with a view to persuading the Commission to act upon the comments of Dr. Renshaw and to further review his case. Having assessed this issue, the Commission replied to the Claimant by letter dated 13th November 2001. This is a very full and detailed letter written by Mr. Baden Skitt, in which he reviews and assesses arguments raised by the Claimant and states at page 2: "It is the view of the Commission that the Court of Appeal could not be satisfied that the bullets which struck your left chest and left elbow passed through anything other than soft tissue." The letter refers to evidence bearing upon whether the Claimant was shot by FMJ ammunition and concludes: "This evidence points overwhelmingly to the fact you were shot by Police Constable Scott and Police Constable Tinning."
    14. In a further letter, dated 27th November 2001, written by Mr. Skitt, he stated that he could find nothing in the latest submissions which caused him to alter the decision of the Commission not to refer the case to the Court of Appeal.
    15. Against that background, I heard Mr. Boyle's renewed application to Judicially Review the Commission's decisions of the 13th November 2001 and the 27th November 2001."
  7. The Claim Form considered by Henriques J had been issued in June 2002, well outside the 3 month period starting with the latest of these letters (see para 16 of the judgment of Henriques J). This was his second claim for judicial review, the first having been on 23 October 2000. The application had been refused on paper by Maurice Kay J (as he then was). At the oral application Henriques J considered the extension of time that the Claimant required (which was based on his ill health) and the merits of his application. In relation to the merits, Henriques J considered the evidence that supporting the Claimant's assertion that he was shot by an FMJ bullet. This evidence included that of Dr Renshaw and Mr Mason (referred to in para 12 of his judgment), the contemporaneous medical records of the procedures to remove the bullet from, and to treat, the Claimant's chest and elbow. In addition Henriques J considered the Claimant's points in relation to the alleged bias of Mr Skitt. The Claimant and Brindle had both brought civil proceedings against the police and failed. Mr Skitt had referred to passages in the witness statement of Mr Brindle prepared for his civil action. Henriques J found it impossible to see how reliance could be placed upon any assertion by Brindle to the detriment of the Claimant (para 20).
  8. Henriques J noted that, in addition, the Claimant had raised two free standing points. The first was the inconsistency which the Claimant alleged existed between what Deputy Assistant Commissioner Clark had said in evidence in an abuse of process application which had preceded the Claimant's trial, and what Mr Clark had said in June 1999 in a statement made for the purpose of the Claimant's civil action against the police. In the former Mr Clark had said that he did not know any detail of the Claimant's status so far as the Garda were concerned, whereas in the latter he had said that on 28th July 1995 the Garda had sent him a report in which they said that their informant was the Claimant, and that he had told Irish police officers that he would take steps to avoid being involved in the final attack on Brindle.
  9. The second free standing point was a complaint that the Claimant had been cross-examined at his trial on a false basis. Having put his character in issue, the Claimant was asked by prosecuting counsel, Mr Sweeney QC, if, when escaping from court on 15th April 1975, he had held the Judge up at gunpoint, and if, when being re-arrested, he had shot at the policeman. The Claimant said that both these allegations were lies. Henriques J noted that the Claimant had raised this point with the CCRC in 1999 but that it did not appear to have been followed up. At para 27 Henriques J said:
  10. "No doubt a strong direction was given to the jury to ignore these questions as the defendant had denied the event, but any juror would be likely to assume that such a question would not be asked by Crown counsel unless based upon accurate information. If this information was in fact false, on this single ground alone there may well be a basis for the Court of Appeal (Criminal Division) to enquire as to whether or not the Claimant had a fair trial".
  11. Henriques J granted the necessary extension of time, and gave permission on the basis that (as he said in para 31) he considered it
  12. "at least arguable, having regard to what is said about the Claimant's elbow and left chest and the reliance placed upon Brindle's statement, that Mr. Skitt's assessment of the evidence before him is such as might give rise to a conclusion of apparent bias. Alternatively, it appears to be arguable that the decision of the Commission was, in all the circumstances, unreasonable and/or perverse."
  13. In para 33 of his judgment Henriques J said:
  14. "I ought perhaps to state that Mr. Boyle seeks no more than to have this matter reconsidered by the Commission with a member other than Mr. Skitt acting on behalf of the Commission. He of course contends that medical evidence should be sought in accordance with Mr. Renshaw's report and that enquiries should be made concerning his alleged hold up of the Judge in Dublin and the alleged discharge of the firearm on his recapture. In the event of the Commission deciding that these are proper steps to be taken there would be no reason for a substantive hearing to take place."
  15. In his fourth Claim Form dated 24th November 2004, the Claimant, after referring to inherent bias in the terms set out above, also refers to the allegation of bias in respect of which he was granted permission by Henriques J to apply for judicial review in 2003. As can be seen from the above, the allegation in 2003 was on an entirely different basis from the allegation advanced in November 2004, and pursued before us, as set out in para 2 above.
  16. The CCRC's Final Statement of Reasons ("SoR") sets out in detail the background to the shooting and the shooting itself (paras 1-35) the abuse of process hearing before the trial (paras 36-40) the cases of the Crown and of the Claimant (paras 41-62) and the subsequent proceedings before the Police Complaints Authority and the civil courts (paras 63-66) and the Court of Appeal (paras 67-72). It is not necessary to repeat all of that information in this judgment.
  17. Six months after the permission hearing, on 23rd September 2003, the matter came before Moses J (as he then was). He delivered a judgment [2003] EWHC 2305 (Admin). Moses J ordered a fresh review by the CCRC of the Claimant's case. He was able to do this without a substantive hearing because, taking note of para 33 of Henriques J's judgment, the CCRC had agreed voluntarily to consider the matter and proposed a consent order.
  18. The Claimant had been concerned about the consequences of giving consent to such an order himself, and Moses J therefore made the order in the same terms but dispensing with the need for consent of the Claimant. He ordered the CCRC (1) to commission a report from an appropriately qualified expert on the exact nature of the Claimant's elbow and chest injuries, whether the wounds showed signs of bullet fragmentation and what evidence there is that the wounds were caused by F M J bullets; (2) to investigate the allegations that the Deputy Assistant Commissioner Roy Clark lied on oath at the abuse of process hearing in October 1996 at the Central Criminal Court; (3) to investigate the allegation that prosecution counsel misled the jury in relation to circumstances in which the Claimant was said to have absconded from custody and was subsequently re-arrested by the Irish Police; (4) to consider the extent to which reliance can properly be placed upon the evidence of Mr Brindle; (5) to ensure that in the fresh review Mr Skitt is not involved and that they look at all the matters before them in considering whether to refer the matter to the Court of Appeal. However, Moses J refused to order that there be a reference to the Court of Appeal then and there as the Claimant was also requesting.
  19. On 3 February 2004 the Claimant made a third application for permission to apply for judicial review to challenge the continuing delay by the CCRC. This was unsuccessful. When the application was renewed in this court, Dyson LJ and Henriques J delivered a judgment on 29th July 2004 [2004] EWHC 2220 (Admin). The Claimant complained of the delay and again asked for an order directing that the case be referred to the Court of Appeal forthwith. By this time the CCRC explained that their review included further investigations, in particular the obtaining of information from counsel who had prosecuted the Claimant. This application for permission was refused for reasons set out in the judgment, but the court noted, while not encouraging the Claimant, that he could challenge delay by issuing further proceedings.
  20. That is what he did on 24th November 2004 in these, the fourth proceedings which are now before us. This application first came before Crane J on 22nd December 2004. He did not determine the application for permission but noted in his written decision that control was required over the length of delay. The matter came back before the court on a number of occasions between December 2004 and the grant of permission on 28th July 2006. Directions were given by Forbes J on 21st February 2005, by Rose LJ and Holland J on 14th March 2005, by Brooke LJ and Field J on 8th June 2005. Having granted permission in July 2006, Brooke LJ and Field J gave further directions on a number of subsequent occasions, including 3rd November 2005 and 14th December 2005.
  21. On 28th February 2006 the CCRC reached the provisional view that the Claimant's conviction should not be referred back to the Court of Appeal. By a letter of that date they informed the Court and the Claimant. On 21st April 2006 the CCRC sent the Provisional Statement of Reasons and documents to the Claimant. The document covers 248 pages. It appears to address all the issues referred to by Moses J together with other issues which had been raised by the Claimant subsequently.
  22. In their letter to the Claimant dated 21st April 2006 the CCRC invited further representations, initially stating that they should be by 1st June 2006, although that date was subsequently extended. They asked him to put in writing any representations that he had to the effect that there were serious factual inaccuracies or errors in legal analysis or new information, or if he needed more time.
  23. On 31st May 2006, Messrs Hindle Campbell, solicitors who have been helping the Claimant but not formally representing him, wrote to the CCRC. They explained why they were unable to respond to the Provisional Statement of Reasons in as much detail as they would have liked. These reasons included the Claimant's continuing illness. However they did comment critically upon the CCRC's treatment of the issue concerning Mr Clark. They enclosed a letter dated 12th December 2005 from a forensic psychiatrist stating that the Claimant has a very long standing mental health problem and suffers from a combination of severe depression, anxiety and panic disorder. A subsequent report, dated 4th April 2006, states that this illness is continuing.
  24. On 1st June 2006, not having responded to the CCRC's Provisional Statement of Reasons, the Claimant made an application to the Court. He said that in the unique circumstances of this case it was not fair or just that he should have to respond to the CCRC but that he should give his response to the Provisional Statement of Reasons to both this court and the CCRC at a substantive hearing. He made supplementary submissions on 16th June 2006. These documents are themselves substantial and include a voluminous attachment.
  25. On 5th July 2006 Brooke LJ gave a direction in writing. He directed that the matter be listed for a one day hearing and made some observations intended to assist the parties, as follows:
  26. "The present judicial review application was brought to instil a sense of urgency into the CCRC, which has now provided its provisional reasons. If Mr Boyle wishes to challenge the CCRC's eventual decision (if it is adverse to him) he must understand that he is most unlikely to obtain permission to apply for judicial review if he has done nothing to avail himself of the opportunity to make representations to the CCRC now.
    I am directing a hearing (which may be heard by a single judge) because Mr Boyle has been granted permission to apply for judicial review and he is entitled to a hearing. But he must understand that I know of no power that the court possesses to order the CCRC to make a reference, and that if he wishes to maintain his charge of bias, the logical occasion to make such a charge would arise if he was dissatisfied with their final decision (with a complaint which cannot be made in the present proceedings) and not now.
    I mention these matters because I am retiring from the Bench in the near future, and I believed that it would be helpful to let Mr Boyle know my present views on this matter, now that I have handled it for such a long time. Needless to say, if he wishes to continue with the present judicial review the judge who hears it will be able to consider his arguments on their merits with a fresh mind."
  27. In the light of that direction, on 28th July 2006, the CCRC wrote to the court indicating an intention to apply to strike out or dismiss the claim on the grounds that, having completed the review (subject to any representations by the Claimant) the relief sought in the Claim Form dated 24th November 2004 was now academic. The CCRC objected to the proposal that the Claimant use the judicial review claim proceedings as a vehicle for making representations on the Provisional Statement of Reasons. The CCRC estimated that their application to strike out would take a full day and whatever the outcome there would not be time to proceed to hear the Claimant's applications as well. They estimated that the Claimant's case would take three days to hear.
  28. On 20th July 2006 the CCRC wrote to the Claimant stating that they had received a copy of his application to the court with supporting documentation and that they proposed to treat these objections together with the representations set out in Mr Hindle's letter dated 31st May 2006 as though they were further representations in response to the Provisional Statement of Reasons. On 10th July 2006 Mr Hindle had written to make clear that the Claimant did not propose to submit any further representations and invited them to consider the matter set out in the application set out in the application dated 1st June.
  29. On 28th September 2006 the CCRC gave to the Claimant an extension of time to 21st October 2006 for making additional representation. On 18th October 2006 they extended this to 6th November 2006. Having received no response, on 10th November 2006 the CCRC wrote stating that they had considered the additional matters raised by the Claimant through Mr Hindle and his applications to the court, and having considered these, had decided that there were no grounds to refer his convictions to the Court of Appeal. They stated that his application was now closed. The final Statement of Reasons is dated 10th November 2006 and covers 284 pages. At paragraph 115 it is recorded that Detective Superintendent Simon Bailey of Norfolk Constabulary had been appointed as Investigating Officer on 1st April 2005.

  31. Meanwhile on 3rd August 2006 Miss Beverley Lang QC counsel for the CCRC prepared a skeleton argument for the forthcoming hearing. On 28th August 2006 she prepared a supplementary skeleton argument updating the position on delay. She submits that the CCRC has lawfully exercised its statutory powers and duties, and that since a final decision has now been made his judicial review claim has been overtaken by events and is now academic. She submits that the allegation of bias is not supported by any evidence but that the Statement of Reasons demonstrates that a fair and proper consideration has been given to the Claimant's application. Referring to the court's limited powers of review (R v CCRC ex parte Pearson [2001] 1 Cr App R141) she goes on to submit that if the Court found that the CCRC had erred in law, the only appropriate remedy would be to remit the case for re-consideration. The Claimant's applications for orders and declarations beyond that are, she submits, misconceived. Accordingly, she submits that the claim should be struck out under CPR 3.4 (2) (a) and /or (b), or dismissed under CPR 24.2.
  32. In preparation for this hearing, the Claimant has prepared a skeleton argument which he has supplemented most recently on 7th December 2006. The skeleton argument and attachments make up one complete lever arch file, that is more pages than the Statement of Reasons. He states that he still relies on his original case as set out in the Claim Form. Much of the skeleton argument is devoted to establishing bias. He seeks to do this by addressing the history of the CCRC's involvement, and by analysing and criticising its conclusions on the various matters submitted to it with a view to demonstrating that the decision not to refer his case back to the Court of Appeal can only be explained if bias is inferred. He does not make any allegation of apparent bias based on the status or actions of any of those involved in the matter on behalf of the CCRC, such as he had made in relation to Mr Skitt. The gist of the Claimant's complaint under this head can be seen from the way he explained it orally to us. He said that the CCRC have not carried out the tasks set by Moses J. He submits that the test for referral had been met at the stage the matter was before Moses J and is still met. He submits that at every stage the CCRC has only reacted when this Court has forced it to. He submits that it is unthinkable that the CCRC could have failed to refer without bias, and so that the Final Statement of Reasons and decision not to refer are null and void.
  33. The Claimant relies on his Claim Form of November 2004. In that he puts his case under four heads: "Delay HRA 1998. Mandatory Order. Declarations. Inherent Bias". We extended the hearing from the one day for which it had been listed to a second day to enable the Claimant to develop his submissions. The Claimant said little about his delay claim, which is for damages under s.8 of the Human Rights Act. He had made the decision to pursue his bias claim at this hearing. Having made that decision, he chose to devote the time available to his primary case, which, at its highest, is that this Court should declare that his conviction is unsafe and that the CCRC must refer the case back to the Court of Appeal.
  34. After hearing initial argument as to how we should proceed, bearing in mind that the Claimant had the leave granted by Brooke LJ and Field J, we indicated that we would not refuse to hear the Claimant on his points on bias. Miss Lang did not press us to hear her strike out and dismissal arguments. She submitted that the preliminary views expressed by Brooke LJ in his Note of 5th July 2006 were correct, that the existing proceedings could not be extended to enable us to consider an attack on the Final Statement of Reasons, and the Claimant would have to obtain leave to bring fresh proceedings to launch such an attack. She observed, with force, that if the Court were to have to consider an attack on the Final Statement of Reasons there would have to be pleaded grounds and the hearing would take longer than the one day allotted to this hearing.
  35. It was not in issue that we can take the law from the judgment of the Court delivered by Lord Woolf CJ in R(Mills and Poole) v CCRC [2001] EWHC Admin 1153:
  36. "The Commission was established pursuant to Part II Criminal Appeal Act 1995. Section 13 of that Act, so far as relevant provides:
    "13.—(1) A reference of a conviction, verdict, finding or sentence shall not be made… unless—
    (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
    (b) the Commission so consider—
    (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
    (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
    (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
    (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."
    The statute therefore contains a two-stage test:
    (1) (a) there has to be fresh evidence or an argument, not raised in the proceedings thus far, and (b) it is that evidence or argument which causes the Commission to consider that there would be a reasonable possibility that the conviction would not be upheld. (Mr Blake submitted that the material upon which he relied passed those two stages and that the Commission conclusion to the contrary should be quashed), or
    (2) there needs to be exceptional circumstances which justify a reference. (Mr Blake relies on this ground if it is necessary for him to do so)
    The requirement that there exist evidence or argument not already raised in the proceedings is important, because it prevents a constitution of the Court of Appeal on a reference sitting as a Court of Appeal from an earlier decision made by a differently constituted Court of Appeal. The different material, whether in the form of evidence or argument, must justify a new decision. So far as the Commission is concerned, it must appear that such a real possibility exists as a result of the new evidence or argument.
    The conditions which have to be fulfilled before a reference is made are the means by which Parliament has attempted to resolve the tension between the need for justice to be done and requirement that there should be an end to litigation. Parliament was silent as to the role of judicial review. But the Commission is a public body and in reaching its decisions it is performing a public function so it is subject to judicial review.
    The role of the Court hearing applications for judicial review to challenge decisions of the Commission is very much a residual one. Miss Lang QC for the Commission lays emphasis on R v CCRC exp Pearson , [2000] 1 Cr App R141 and the judgment of Lord Bingham CJ in that case. At 171F to G Lord Bingham stated:
    "Had the Commission decided to refer this case to the Court of Appeal that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgement entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its functions. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp a function which parliament has, quite deliberately, accorded to the judgment of the Commission."
    In that same judgment Lord Bingham also pointed out that it was not appropriate to subject the Commission's reasons to a "rigorous audit" in order to establish that they were not open to legal criticism. "The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere": (169G.) This approach was subsequently adopted in R v CCRC exp Hunt [2001] 2 WLR 319.
    Mr Blake accepts the limitations upon this court which those decisions impose. This court cannot act as a court of appeal from the Court of Appeal, nor can it act as an appellate body in relation to the Commission. The standards of judicial review do not require decisions of the Commission to be quashed whenever any flaw, however minor, is revealed by a process of rigorous audit.
    The suggestion of Mr Blake that this court is in a position to be less deferential towards Commission decisions than towards those of other bodies, because this court is particularly well placed to form a view as to how the Court of Appeal would react to any new evidence or argument, is not consistent with the proper approach on judicial review. It is important that this court does not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have concluded, since this would be to usurp the Commission's function. Decisions of the Commission cannot be quashed merely because a court on judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success".
  37. That was a challenge to the decision of the CCRC on the ground that it had failed to direct itself correctly as to the fresh evidence and arguments available to show a real possibility that on a reference the Court of Appeal would not uphold the conviction. The Claimant submitted to us that the Court can do more than express a view for the consideration of the CCRC. He relied on the authorities cited by Clive Lewis in Judicial Remedies in Public Law (2004) para 6-021. The Claimant invited us to express our views in this case and to direct a referral, as he had asked Moses J to do. He directed us to R v Barnet LBC [1983] 2 AC 309, 350-351 and to M v Home Office [1993] 3 WLR 433.
  38. Mills and Poole is authority for the proposition that the most that this Court can do when hearing a challenge to a decision of the CCRC was what this Court did in that case, namely to express its views, leaving it to the CCRC to decide what if any weight to attach to them. But the present hearing is not a challenge to a decision of the CCRC on the ground that it has failed to direct itself. It is a challenge on grounds of delay and bias. So the situation is less promising from the Claimant's point of view, since a review for the purposes of considering bias need be less extensive than a review for the purposes of considering whether the CCRC has misdirected itself. The Court is thus less likely to be in a position to form views of the kind that the Claimant wishes us to express.
  39. Nevertheless, the Claimant submitted that it would still be open to this court to express such views as we might hold on whether the test for a referral is made out. He submitted that we should give leave for him to make a fresh application for judicial review to enable him to challenge the decision of the CCRC on the ground that it had failed to direct itself correctly. We should exercise ingenuity along the lines approved in Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 869. It would be unfair to make him apply again.
  40. We ruled that we could not hear a full challenge to the Final Statement of Reasons, and that if such a challenge is to be made, it will have to be in fresh proceedings, in which the grounds are fully pleaded and in which the CCRC will have a proper opportunity to respond, if permission is given. Nothing in this judgment is intended to prejudge any such application as may be made in the future.
  41. But we also held that the Claimant could refer us to matters that had occurred up to the date of this hearing, including the Final Statement of Reasons, in support of his case on inherent bias. In effect, he could advance his submission to the effect that the CCRC were still refusing to consider the points he has submitted to it and in effect did not approach the task with an honest and open mind. Accordingly, the application to strike out or dismiss the Claim was not pursued.
  42. Miss Lang's submission on bias is that it is not supported by any evidence and that the painstaking investigation by the CCRC and the careful and thorough reasoning set out in the SoR demonstrates that the CCRC has given fair and proper consideration to the Claimant's application. She did not address us as to what the Court's powers in the event that we were to uphold the submission of bias. The Claimant submitted that in the event that his submission succeeded, the decision not to refer could not stand.
  43. DELAY

  44. The history of the various applications to the CCRC and the associated proceedings for judicial review is set out above. The Claimant's first application to the CCRC was made in June 1999 and the Final SoR was made on 10 November 2006. However, that is not the true measure of what the Claimant could argue as delay. There have been a number of matters referred by him to the CCRC at different times. They were not all referred in June 1999. And the Provisional SoR was sent to the Claimant on 24 April 2006, the delay after that being to enable him to make representations, albeit that he declined to do so. Looked at broadly, the CCRC did start considering the Claimant's case in June 1999 and has continued to do so over a period of some seven years. Of these seven years, approximately the first four were before the Order of Moses J in September 2003 and the remaining three since that date. During the last three years this Court has provided a remedy in the form of the supervisory role it has adopted, and the orders for directions that it has made, as referred to above. It is unusual for the Court to devote to a case the attention that Brooke LJ in particular devoted to ensuring that the deliberations of the CCRC continued under the supervision of the Court.
  45. There is before us an extensive body of documents in which the CCRC set out what they were doing, or the difficulties they were facing, at different times. There are a number of chronologies. This is not a case where there have been long periods where nothing has been being done at all.
  46. Some of the delay has resulted from the illness of the Claimant which meant that he had to request an extension of time, namely for the period from the decision in November 2001 to the issue of proceedings in June 2002. That is the period in respect of which Henriques J gave the Claimant an extension of time. There was further delay from June 2002 until the grant of permission by Henriques J on 31 March 2003, that is nine months later. None of this delay, totalling about one year, is attributable to the CCRC.
  47. Evidence in relation to delay and bias has been given in the form of a witness statement of Mr Wagstaff, Legal Adviser to the CCRC, dated 17 August 2006 (his first witness statement). No statement to the contrary has been put before us for the Claimant.
  48. Mr Wagstaff states that the first indication received by the CCRC of the hearing before Henriques J had been on 24 April 2003, and the judgment itself was not received until 1 May 2003. At the next meeting that occurred to consider such matters, namely 20 May 2003, the CCRC decided that the Claimant's case would be prioritised. On 11 June 2003 it was allocated to Mr McLean, one of the most experienced of the 43 Case Review Managers then employed by the CCRC, acting under Commissioner Barry Capon. He describes efforts made in July and August 2003 to secure medical records of the Claimant and documents from Ireland and the National Crime Squad. There was a meeting with the Claimant on 9 September at HMP Full Sutton.
  49. Moses J considered the passage of time in his judgment on 23 September 2003. He noted (para 2) that the decision of the CCRC to agree to reconsider the matter meant that considerable delay was avoided. There would have had to be a substantive hearing in July or October 2003, whereas the CCRC in fact started its reconsideration before then. He refused permission to the Claimant to add a claim for damages. He went on to say:
  50. "8. I accept that the matter has hitherto, unfortunately, suffered some delay. Mr Justice Henriques' judgment was on 31 March 2003. It was only a "permission" judgment but it was obviously appropriate for the Commission to decide whether to look at the matter again or whether to fight the matter on a full substantive hearing. I do not know why it took as long as it did, from 31 March to 11 June, to make the decision to look at the matter again and to allocate the case to someone else. [The explanation is set out in para 39 above] There is nothing I can do now about that delay. I am quite satisfied that since that date the Commission has been viewing the matter urgently and will continue to do so. Certainly they ought to do so while Mr Boyle is in prison, and says that all the matters upon which he wishes to rely are now before the Commission.
    9. The upshot is that Mr Boyle has not been willing to agree to any order quashing the decision because he fears that will prevent him seeing that there is no future delay. I do not think that any such consent order would have done anything of the sort. Were the Commission to be guilty of an unlawful delay then Mr Boyle would have had a remedy. But there is no basis on which he can say that since June 2003 such delay has taken place…
    11…. I would stress, having heard him, that his complaints and his fears as to delay are well founded. It is vital that, having regard to past history of this matter, the Commission do its utmost to reach a full, fresh but speedy conclusion in deciding whether to refer this matter or not. For the reasons I have given I shall not make a mandatory order but the order I have made can be drawn up in the terms I have expressed".
  51. Mr Wagstaff describes the steps taken following that hearing. It was not until January 2004 that sufficient records had been obtained to instruct Professor Milroy, Professor of Forensic Pathology and Consultant Pathologist of the Home Office. Prof Milroy sent his report on 21 May 2004. This was sent to the Claimant who made representations to which Prof Milroy responded. Prof Milroy prepared a further statement on 14 June 2004. The steps taken in relation to the allegations involving Mr Clark in the period up to July 2004 are set out in paras 51-69 of Mr Wagstaff's statement. They include approaches to the Crown Prosecution Service and the Irish Police. On 16 July 2003 the Claimant submitted to the CCRC what is referred to as the Fresh Evidence Bundle. This consists largely of prosecution material that came into the hands of the Claimant's legal team by mistake during the Claimant's appeal against conviction in 1998, and which the Claimant stated that he had received only in December 2002. Little progress appears to have been made before the second application for permission to apply judicial review dismissed in July 2004. The position was similar in relation to the allegation that prosecuting counsel had misled the jury in his cross-examination of the Claimant.
  52. When the matter came before Dyson LJ and Henriques J nearly a year after the previous hearing, that is on 29 July 2004, Henriques J said this in his judgment:
  53. "4.    Mr Boyle remains dissatisfied with the speed with which the Commission has been dealing with his application.  He started judicial review proceedings, which are the proceedings before the court today, on 8 January 2004.  I take that date from the chronology attached to the acknowledgement of service.  The application was made some 2˝ months after the order made by Moses J.  Mr Boyle's complaint was, and remains, that the Commission has simply failed to give to this investigation the priority and urgency that it demands, as was recognised by Moses J.   The relief he seeks by his judicial review proceedings is, as it was before Moses J, an order directing that the case be referred to the Court of Appeal forthwith, and an order directing the Commission to hold an oral hearing on the merits of the case or any other order the court deems fit. 
    5.        This application prompted a response in the acknowledgement of service in which the Commission sets out in considerable detail the work that has been done, and in particular sets out in a very detailed chronology all the work done between 23 September 2003 and 7 May 2004.  One of the points they make is that their progress has been hampered by continual further submissions by Mr Boyle.  They say that on no fewer than 15 occasions he has communicated with them making further points.  They say in the acknowledgement of service that the Commission has re-allocated the case for enquiries to be made by Mr John McLean, formerly a solicitor in private defence practice.  The activity as been "continuous and resolute." 
    6.         The effect of no fewer than 15 further communications and submissions by Mr Boyle has been that the Commission has felt bound to investigate all the issues raised by his submissions which have been "extensive and detailed".  The Commission submits in its acknowledgement of service that there is no unlawful delay in the review, that in any event Mr Boyle's interests would not be served by granting him the remedy he seeks, namely a mandatory order that the Commission refer the case to the Court of Appeal before its enquiries are complete.  They further submit that the suggestion that the Commission should hold an oral hearing on the merits of the case would simply introduce an additional source of delay and would be pointless until all the material currently being sought by the Commission has been collected. 
    7.          Collins J, in refusing permission on the papers, said that the Commission must be allowed to make its proper enquiries:
    "It is aware of the need for speed and it is clear from the Acknowledgment of Service that active investigation (which is properly required) has been taking place.  It would not help the claimant for the CCRC to be detracted [sic] in resisting this claim.  It is obvious that a decision must be made as soon as possible, but there is no arguable case that the [Commission] must now act as the claimant wishes and that if it does not are acting unlawfully."
    8.          It seems to me that, on the basis of the material that was before Collins J and which is before us to as to the position at the time these judicial review proceedings were started, and taking into account what it is clear from the Acknowledgment of Service had been done up to 7 May, there was no unlawfulness in this case as at the date the judicial review proceedings were started"
  54. The upshot of Prof Milroy's report was that the Claimant submitted that it demonstrated that he had been shot by police as he lay injured and unarmed on the ground, and that the video of the shooting (which recorded no sound of shooting while he was on the ground) must have been tampered with to remove the sound recording of those shots. Mr Wagstaff describes the steps taken to trace the video and to appoint an Investigating Officer. The CCRC only rarely appoints an Investigating Officer, and Mr Wagstaff states that the decision was made in this case in recognition of the potency of the Claimant's submissions in relation to Mr Clark. Mr Wagstaff also describes the enquiries made of trial counsel and the Metropolitan Police. He also describes the communications with the surgeon and anaesthetist who had treated the Claimant's wounds in 1995, the further communications with Prof Milroy and the investigation into the allegation that the video sound track had been tampered with, and Dr Renshaw, the firearms and ballistics expert who had given an opinion in 1998 at the Claimant's request.
  55. When the matter came back before Brooke LJ and Field J on 8 June 2005, again after an interval of nearly one year, the CCRC informed the Court that it had taken nearly seven months, that is until April 2005, to find the new Investigating Officer, Mr Bailey. Brooke LJ was critical of the delay between the Order of Moses J in September 2003 and the decision to appoint a new Investigating Officer one year later, in September 2004 (see transcript of 8th June 2005 p39-46). The Order made on that hearing included the filing of a strategic plan for further enquiry by the CCRC leading to a decision.
  56. When the matter came back before Brooke LJ and Field J on 28 July 2005, the Court was again critical of the delay. By that time a large number of boxes of material had been obtained from the Metropolitan Police relating to the civil proceedings that had been brought against them. The Court granted the permission to apply for judicial review, the substantive hearing of which has come on before us. The Order states that the Claimant's complaints of delay are to be taken as at 28 July 2005 without a requirement for him to file a new judicial review form.
  57. On 19 August 2005 Prof Milroy delivered a further report, and the CCRC heard from the surgeon. Further communications followed with both men, and with Dr Renshaw. Prof Milroy wrote again on 6 October. Following contacts between Dr Renshaw and Prof Milroy, Prof Milroy asked to see the video of the shooting.
  58. On 3 November 2005 Brooke LJ and Field J directed there be a short hearing in December followed by a 3 day hearing in March 2006, by which time they expected that the CCRC would have made its decision.
  59. In December 2005 the Claimant made a new allegation of bias, again based on the alleged links between the Investigating Officer and Mr Clark. Brooke LJ gave a direction on 14 December declining to entertain entirely new points.
  60. Prof Milroy wrote again to the CCRC on 9 and 14 December 2005, and following queries from the CCRC, on 6 and 17 February 2006.
  61. The further history of the matter is set out above. Mr Wagstaff invites the Court to conclude that the CCRC's work on this review has been necessary, continuous, open-minded and resolute, as well as to reject the allegation of bias as having no merit. He refers to the SoR as evidence of the care and attention given to the matter.
  62. In the light of the detailed explanation given by Mr Wagstaff, and in the absence of oral evidence, it is impossible to make findings that the CCRC has been blameworthy in the conduct of this review since the hearing before Moses J. It has taken a long time. That is regrettable, but not of itself unlawful.
  63. In case I am wrong in that conclusion, I go on to consider the legal consequences if there were unlawful delay.
  64. The Claimant advances his claim for damages on the footing that the delay in reaching the final determination of the review is a violation of his right under ECHR Art 6 to a hearing within a reasonable time. He referred us to Davies v UK (Application No 42007/98) Judgment 16 July 2002.
  65. Miss Lang QC submits that the CCRC's duties under the 1995 Act are not the determination of the Claimant's civil rights and obligations or of any criminal charge against him.
  66. ECHR Art 6 (Right to A Fair Trial) includes:
  67. "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
  68. Miss Lang QC submits that there is no authority directly in point, but this is plainly a criminal matter, and since the CCRC is not making a determination of any charge, Art 6 does not apply. She refers to Lester & Pannick Human Rights Law para 4.6.15.
  69. Further Miss Lang QC directs attention to the words of s.8 of the Human Rights Act:
  70. 8. - (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
    (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
    (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-
    (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
    (b) the consequences of any decision (of that or any other court) in respect of that act,
    the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".
  71. In the present case the Court has afforded some remedy for the Claimant's complaints of delay by imposing the directions and holding the hearings which are set out above, which, since 2003, have been directed to avoiding delay.
  72. Miss Lang QC submits that unless a reference is made, and an appeal succeeds, the delay in a review by the CCRC does not prolong the period of detention of a prisoner. There is no evidence in the present case of loss, whether pecuniary or otherwise as a result of the alleged delay. She refers to Lester & Pannick Human Rights Law para 2.8.3 to 2.8.4, which set out the case law under s.8(3), and the principles applied by the European Court of Human Rights, which s.8(4) requires the court to take into account. The case law referred to includes, in para 2.8.3, Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406. Damages under the 1998 Act are not an entitlement, as they are for a successful claimant in an action in tort. Other remedies, by which compliance with the Act is enforced, may be sufficient, and a balance has to be struck between the interests of the victim and those of the public as a whole.
  73. I accept that, applying the principles set out in the now well known cases referred to in footnotes to para 2.8.3, this would not be a case in which the court could be satisfied that an award is necessary to afford just satisfaction to the Claimant, assuming that the Claimant had established a breach of Art 6. Accordingly it is not necessary to decide whether Art 6 applies, or, if it does, whether there has been a breach.
  74. Miss Lang QC accepts that at common law delay by a public body in the performance of its statutory duties can amount to unlawful conduct, which is amenable to judicial review. But she submits that orders and directions such as were made by Brooke LJ and Field J are the remedies that were available to the Claimant, and that no further relief is appropriate. The delay has come to an end with the Final decision not to refer, unless it is set aside.
  75. Miss Lang QC refers to the Supreme Court Act 1981, s.31(4) under which on an application for judicial review the court can award damages of the claim could have been made in an action, that is to say, if the claimant can establish a private law claim. She submits that the Claimant could have no private law claim, and has not suggested one, and I agree.
  76. For these reasons the Claimant's claim for damages fails.
  77. BIAS

  78. The membership of the CCRC and the individuals who worked on this review are described by Mr Wagstaff as follows. In June of 2005 a committee of Commissioners under the chairmanship of Mr Alastair Macgregor QC was established to take responsibility for the review of Mr Boyle's application to the Commission. Until January of 2006 that committee included Mr Macgregor, and the Commission's Chairman, Professor Graham Zellick. In January 2006 he was replaced on the committee by Mr Michael Allen. Mr MacGregor practised at the English Bar for thirty years until joined the Commission in 2004. Professor Graham Zellick was a legal academic for 20 years before becoming Principal of Queen Mary and Westfield College, and then Vice-Chancellor of the University of London, amongst other distinctions. Ms Penelope Barrett practised as a criminal barrister for twenty two years before taking up her appointment with the CCRC in 2004. Mr Michael Allen joined the Commission in 2002, after twenty two years as a legal academic. The Case Review Managers concerned in this review included two solicitors formerly in private practice.
  79. The Claimant suggests no reason why these highly qualified and experienced people should be biased or unwilling to carry out their statutory functions honestly and with an open mind.
  80. The CCRC considered the Claimant's submissions mainly under the following 10 headings, which are set out at para 108 of the SoR (the paragraphs of the SoR in which each of these is considered is indicated in square brackets):
  81. 1) Mr Boyle submits that there is fresh evidence to show that some of his injuries were caused by FMJ bullets. He submits that this proves that, contrary to the evidence given by police officers at trial, the armed police officers must have been using FMJ bullets and, accordingly, that this provides support for his contention that it is possible that the police shot the victim, Mr Brindle, in the chest, either intentionally or accidentally (this is set out in detail in submissions entitled "Ballistics Package" and in Bundles 13 and 15). In this connection, Mr Boyle has also alleged that the sound recording of the police video may have been tampered with. [paras 124-165, 819-880]
    2) Mr Boyle alleges that Commander Clark perjured himself when giving evidence at an abuse of process hearing in October 1996. He relies in that connection on the inconsistencies between Mr Clark's evidence at the hearing and a statement made by Mr Clark (dated 25 June 1999) in later civil proceedings brought by Mr Boyle (see Bundle 12 and "Fresh Evidence Bundle 2003").
    Mr Boyle also submits that there is new evidence to show that a number of police officers (both from the Republic of Ireland and England) lied about many aspects of the case when giving evidence at his trial (see Bundle 11 and "Fresh Evidence Bundle 2003"). [paras 166-275, 881-920]
    3) Mr Boyle asserts that when he was being cross-examined at trial, prosecution counsel falsely alleged that he had escaped from custody whilst on trial for armed robbery at the Central Dublin Criminal Court in 1975 by holding the judge up at gunpoint and that he had shot at police officers when arrested a few weeks later. He submits that the jury was misled as a result of these false allegations and that his defence was prejudiced to such a degree that he did not have a fair trial.
    He also submits that his counsel (Lord Gifford QC) failed to argue this point at appeal because Lord Gifford was working from the wrong transcript of evidence. He asserts that Lord Gifford had the transcript from the abuse of process hearing as opposed to the trial transcript.
    In addition, Mr Boyle asserts that the prosecution had made an unsuccessful application for a Voluntary Bill of Indictment in relation to the shooting of George Brindle (Mr Brindle's brother) in 1994 and that he was cross-examined about that shooting at trial. He submits that this line of questioning should not have been allowed and that it was highly prejudicial to his defence (see "Fresh Evidence Bundle 2003"). [paras 276-345]
    4) Mr Boyle submits, contrary to the prosecution case at trial, that it is impossible that his third bullet hit Mr Brindle in the thigh as he was running away. He seeks to establish this by reference to diagrams, plans, photographs and the police video of the shooting, and asserts that the prosecution expert, Mr O'Callaghan, based his opinion on inaccurate information. He submits that this is new evidence which contradicts the whole basis upon which the prosecution put its case and that, had it been available to the jury, they might have concluded that he did not shoot with intent to kill (see "Fraud Bundle" and "Annex to Fraud Bundle"). [paras 346-393]
    5) Mr Boyle submits that there is fresh evidence which was not – but should have been - disclosed and which would have supported his defences of lack of intent to kill and duress, and his submission of abuse of process. In this connection, Mr Boyle relies in particular upon an unredacted police report dated 7 July 1995. This report refers to (and has attached to it) a transcript of a covertly recorded conversation between Peter Daly and his son William on 30 June 1995 during which they discuss plans for the shooting and make comment about "Paddy's bottle going" (which Mr Boyle asserts is a reference to him). Mr Boyle also relies on other sensitive material, including police reports and briefing sheets, which indicates that the police had covertly recorded other conversations between the Daly's during this period (see "Fresh Evidence Bundle 2003"). [paras 394-454]
    6) Mr Boyle submits that there is other new evidence and argument which would have supported his submission of abuse of process. He submits that this new evidence relates to his activities and value as an informant for the Garda, his awareness of being under surveillance and various other matters (see Bundles 8, 9,10,11,12 and 16). [paras 455-660]
    7) Mr Boyle asserts that there is evidence to show that he made a 999 call to the UK police on 1 July 1995 with a view to extricating himself from the plot to kill Mr Brindle. He submits that this supports his contention that he lacked the necessary intent to kill, that he procrastinated in carrying out the shooting and that he was acting under duress (see Bundles 8, 16 and "Fresh Evidence Bundle 2003"section K). [paras 661-667]
    8) Mr Boyle submits that there is other "new evidence and argument" to support his defence that he did not intend to kill Mr Brindle. He asserts that on 20 September 1995 he could have fired at Mr Brindle at any stage before Mr Brindle reached his car door but that he did not as he did not have a clear view of Mr Brindle's legs. He submits that the fact that he waited until he had a clear view of Mr Brindle's legs provides support for his defence that he lacked the necessary intent to kill Mr Brindle (see Bundle 14). [paras 668-675]
    9) Mr Boyle submits that the trial judge misdirected the jury in relation to a number of important matters. These matters included a suggestion by the judge that Mr Boyle's co defendant, David Roads, may have been prejudiced by virtue of not knowing at the time he gave evidence what Mr Boyle's defence was going to be (see "Fresh Evidence Bundle 2003"). [paras 676-723]
    10) Mr Boyle submits that it was impossible for him to defend himself properly or to give instructions to his lawyers owing to his memory and health problems at the time of his trial. In this connection he relies in particular on medical reports which were prepared at that time and contends that, because of these problems, important points and arguments went unmade at his trial (see Bundle5). [paras 724-793]
  82. Pages 248-281 of the SoR (paras 794-921) are devoted to addressing further submissions received from the Claimant or from Mr Hindle after completion of the Provisional SoR.
  83. Issues 1 to 3 correspond to the first three matters which Moses J directed be investigated. From the paragraph references given above it can be seen that the CCRC have set out to address these issues at considerable length, as well as seven additional issues not referred to by Moses J. In Section 4 of his Skeleton Argument the Claimant accepts that Mr Skitt has had no involvement in his case since the judgment of Henriques J in March 2003. He goes on to say that Mr Skitt's involvement had continuing consequences, including that his failure to refer the case when he was involved meant that transcripts have been lost. The stenographers destroyed their records in accordance with their document destruction policy, which they would not have done if there had been an early referral. However, that is not a case that can be advanced in support of the present allegation of inherent bias.
  84. The Claimant addressed us first on matters arising under Issue 5 and Issue 2 in so far as it related to the Fresh Evidence. These matters are dealt with in his Skeleton Argument at Sections 2 and 3. The Claimant complains that the Investigating Officer did not ask Mr Clark about what evidence there was or was not to arrest any of the conspirators prior to the shooting on 20 September 1995.
  85. In approaching Issue 2 the CCRC did not in fact confine the enquiry to the complaints made by the Claimant. At para 174 of the SoR two additional points on which there appeared to them to be inconsistencies in Mr Clark's evidence.
  86. At para 195 the CCRC accepted that the statements of Mr Clark as to his knowledge of the Claimant's status with the Irish Police were clearly inconsistent, and that the evidence in the abuse hearing was incorrect. The SoR then goes on address the question whether the statement at the abuse hearing was dishonest.
  87. Mr Clark was interviewed under caution on 23 December 2005. He accepted that his evidence at the abuse hearing had been mistaken. The Investigating Officer took the advice of the CPS, who advised that there was insufficient evidence to provide a realistic prospect of Mr Clark being convicted of an offence in connection with this. The CCRC noted that although Mr Clark's evidence had been inaccurate, his was not the only evidence at that hearing on the point. At para 214(c) it is noted that Mr Clark would have been aware that the details of the dealings between the English and Irish police on the Claimant's status would later be testified to by the officers concerned, as in fact they were. No complaint is made as to the evidence of these other officers.
  88. The CCRC considered the matter for themselves and concluded that there was no real possibility that the Court of Appeal would conclude that Mr Clark's evidence was dishonest. The CCRC also considered the significance of Mr Clark's mistaken evidence at the abuse hearing in the light of the evidence given by the other two officers. The CCRC reached the conclusion (at para 224) that Mr Clark's evidence was not sufficiently significant and was unlikely to have had any effect on the outcome of the trial. It is noted that that was also the view of the Claimant's trial counsel.
  89. The SoR then addresses the decision not to arrest the Claimant before the shooting. The Claimant complains that in his interview under caution Mr Clark was not asked about this. The Claimant took us to a number of the contemporaneous documents relating to this, in particular those relating to the police surveillance of the persons and properties concerned.
  90. The SoR starts with inconsistencies in Mr Clark's evidence, as to whether there was, or was not, sufficient evidence to arrest the Claimant before the shooting. Connected to this is the question whether there was sufficient evidence to justify searching premises at Monkton Street. At his interview under caution Mr Clark was asked specifically about the latter, but not about the former (see page 26 of the transcript referred to in the SoR at para 266). Again the conclusion reached is that it was hard to envisage a motive for Mr Clark lying, and that it would be understandable (given his role in the operation) if he had not been aware of the precise extent of the evidence. In any event, at paras 274-5, the CCRC considered that even if Mr Clark had been dishonest, it would not follow that the Court of Appeal could be persuaded to accept that the evidence of the other officers was substantially undermined and/or that the abuse of process argument would or should have succeeded, or that the conviction was unsafe.
  91. It is not relevant to consider whether I agree or disagree with these conclusions. The question is whether this approach to these matters supports the allegation of bias. In my judgment it is quite clear that it does not support such an allegation. The CCRC have approached their enquiry into this issue on a broader basis than the complaint of the Claimant, that is to say, they looked for and considered additional inconsistencies. Their approach to those inconsistencies is careful and rational. It shows no evidence of closed minds or reasoning to support a conclusion which had been decided upon in advance.
  92. Next the Claimant addressed us in detail on Issue 1. He started by referring us to the opinion of Mr Mason, the ballistics expert who (as the SoR records at para 127) in reports dated June 200 and January 2001 described the Claimant's contention that his left chest wound was caused by a FMJ bullet as 'a very compelling one'". The Claimant complains that the CCRC waited until June 2005 before doing anything about these reports and then tried to rebut them.
  93. The relevance of this point is that if the Claimant's wound was caused by a FMJ bullet, then so could Brindle's have been, with the result that it would be possible that the police were responsible for Brindle's chest wound. This would undermine the evidence that the Claimant had intended to kill Brindle.
  94. It was for this reason that Moses J had directed that the CCRC obtain the medical evidence which they in fact obtained from Prof Milroy, with a view to enquiring into the cause of the Claimant's wounds. As noted above, the CCRC did instruct Prof Milroy, and his first report was in May 2004. So it is not correct that they waited until June 2005 to investigate this point.
  95. The SoR gives reasons for rejecting Mr Mason's views. The paragraphs up to para 158, contain detailed consideration of Prof Milroy's evidence and of his contacts with Dr Renshaw, to whom the CCRC did revert. The reason given for not reverting to Mr Mason is that he would not have relevant expertise to comment upon the conclusions to be drawn from the medical evidence and that his own conclusions in June 2000 and January 2001 were predicated upon assumptions (principally the absence of bullet fragmentation) which had since been shown to be incorrect and that the issues had been fully considered by Dr Renshaw.
  96. The letter of Mr Mason to which the Claimant referred us was one written, not in June 2000 or January 2001, but on 19 January 2004.That letter commented upon conclusions derived by the Claimant from what is referred to as the Fraud Bundle. The Claimant took us to that bundle (Claimant's submissions bundle A p302). The passages he refers to in that bundle relate to the evidence of Dr Renshaw (pp 379 and 381). The SoR records that Dr Renshaw was invited to comment upon the reports of Prof Milroy (para 151).
  97. The Claimant referred us to the injury to his left foot from a bullet that penetrated the shoe. He submits that it is impossible that the officers who claim to have shot him could have caused this injury. He submits that it must have been caused when he was already on the ground and when those officers claimed to have ceased shooting. He complains that the CCRC have not investigated this issue.
  98. The injury to the Claimant's left foot is referred to in the SoR at para 157(ii). That is a summary of findings of Dr Renshaw in his report dated 22 January 2006. The CCRC note, as is the case, that Dr Renshaw's conclusion is that his opinion has been altered as a result of Prof Milroy's findings. He concludes that those findings provide strong evidence in support of the proposition that all of the Claimant's gunshot injuries could have been caused by police JSP bullets. He adds "the evidence is not conclusive because … the possibility that the left chest would was caused by FMJ bullet cannot be entirely excluded". This is consistent with the Prosecution case at the trial. Dr Renshaw's report does not mention any outstanding issue arising out of the wound to the Claimant's left foot that requires investigation. In my judgment, the fact that in these circumstances the CCRC did not investigate further the wound to the Claimant's left foot cannot be seen as indicative of bias.
  99. Next the Claimant turned to the reports of Prof Milroy. The first and second reports are summarised in the SoR at paras 144-145. The Claimant took us to the first report dated 20 May. In it Prof Milroy expresses the opinion that all the Claimant's wounds were entrance wounds. As is recorded in SoR para 155, in para 6 Prof Milroy notes that the Claimant contended that the wound to the axilla is an exit wound. In his view the appearances of the x-ray and the description of the surgeon support this being an entrance wound.
  100. The SoR recounts how Dr Renshaw was asked to comment and formally instructed to do so on 16 September 2005. At para 153 it records that there were discussions between the two experts, following which Prof Milroy sent to Dr Renshaw annotated copies of x-rays of the Claimant's left arm and chest, and Dr Renshaw sent to Prof Milroy the video tape of the shooting.
  101. Prof Milroy then produced two further reports dated 8 and 14 December 2005. In his report of 14 December 2005, consisting of two lines, Prof Milroy writes: "Having viewed the video of the incident, it is my opinion that the wound in the back is likely to represent an entrance wound, exiting through the right axilla".
  102. The CCRC asked Prof Milroy to expand on this change of view, which he did in his reports of 6 and 17 February 2006.
  103. The Claimant is very critical of Prof Milroy for this change of view. He describes it as going from black to white. It is his case that the video makes clear that he never presented his right side to the police who gave evidence that they fired at him, and so the conclusion of Prof Milroy in his first report that the wound to his right side was an entrance wound was of itself sufficient to require the CCRC to refer the case back to the Court of Appeal. The Claimant is critical of the CCRC for seeking further reports which led to Prof Milroy's change of view.
  104. However, the SoR records that the change of view came about, not because of the intervention of the CCRC, but because Dr Renshaw sent the video to Prof Milroy. There is no evidence that the CCRC were seeking to persuade Prof Milroy to change his view.
  105. In para 830 of the SoR it is recorded that the Claimant was submitting that Prof Milroy's change of mind is indicative of bad faith on his part and/or on the part of the CCRC. He is quoted as saying that "Prof Milroy manipulated the evidence at the behest of the Commission". When asked by Pill LJ whether he was alleging that the CCRC were fraudulently inducing Prof Milroy to make a false report, the Claimant said that that is where he was coming from.
  106. At para 832 the CCRC note that the revised finding of Prof Milroy accords with the Claimant's original submission. There is no evidence to support the Claimant's conjecture that the CCRC asked Prof Milroy to change his mind, and nothing to support the allegations of bad faith against either the CCRC or Prof Milroy.
  107. At this point in his submissions the Claimant turned briefly to other issues, including his status with the Irish Police and the 999 call he had started to make in July. Nothing he said could lead to the conclusion that the detailed consideration of these issues in the SoR was otherwise in good faith and unbiased.
  108. In addition to her submissions on the foregoing points, Miss Lang directed our attention to the SoR in so far as it dealt with the other issues, with a view to supporting her submission that there is nothing to support the allegation of bias.
  109. Given the importance in the judgment of Henriques J of Issue 3 (the cross-examination on a false basis) I turn to the way in which the CCRC addressed that. As the Claimant pointed out, in one respect his point was strengthened. Whereas Henriques J had assumed that the trial judge would have given a direction upon it to the jury, the CCRC established that the questions of prosecuting counsel were on an incorrect factual basis and that the trial judge had not in fact given the jury a direction upon that (paras 291, 306, 318). The CCRC had also established that the Claimant's Dublin solicitor had been called to give evidence at his trial to support the case that the questions were factually incorrect: the Claimant had not held up a judge at gunpoint on the day he escaped from custody. As to the question concerning the Claimant's re-arrest, the CCRC recorded the Claimant's case that he had in fact pulled out a gun as the police officers were chasing him, although he denied shooting at the officer (paras 282-3). The SoR also set out the transcript (at para 321) and the response of prosecuting counsel to his denial: "I am giving that in your favour…"
  110. The Claimant made his own enquiries of his Dublin solicitor in 2005, and he showed us a letter dated 1 April 2005 and a statement of the same date. The solicitor did not by then recall what he had given evidence about. But this does not advance the submission on bias.
  111. As is also recorded in paragraph 306, this point had been included in the Grounds of Appeal against conviction. Having found from the Skeleton Argument that this point had apparently been abandoned at the hearing, the CCRC contacted counsel who had represented the Claimant at the appeal, Lord Gifford QC and Mr Tehrani. Neither was able to recall. The CCRC also contacted trial counsel, Mr Carter-Stephenson, who did suggest an explanation (although not instructed on the appeal). The Claimant suggested that Lord Gifford QC was working from the wrong transcript, confusing the transcript of his evidence at the abuse hearing with that of his evidence at the trial. The CCRC attempted to obtain from the Criminal Appeal Office the transcripts that were used, but the file could not be located.
  112. As to the Claimant's suggested reason for the abandonment of the point on appeal, the CCRC express their own agreement with an observation of Henriques J made during the course of submissions, to the effect that no court would accept that Lord Gifford did not know the difference between the transcript of the abuse hearing and the transcript of the trial. The Claimant is critical of this citation, and in his Skeleton Argument he sets out further passages of the transcript. But the point does not turn on the transcript of the hearing before Henriques J. It is the view of the CCRC that matters, and it cannot be said that that view is indicative of bias.
  113. The SoR goes on to set out the reasons why this point did not lead the CCRC to make a referral (para 321). These include that the evidence of his Irish solicitor was apparently unchallenged, and that the Claimant admitted pulling a gun on police officers while trying to escape. On the basis of the information set out in the SoR it cannot be said that the decision not to refer on this point can be explained only by bias, or is even indicative of bias.
  114. I have considered these points individually. They must also be considered cumulatively. And while looking at the position overall, I bear in mind that the first reference to the CCRC by the Claimant was in 1999 and the decision not to refer was made in November 2001. The submissions of the Claimant that the CCRC was reluctant to investigate his case must be viewed in that context. Included in these submissions was the one made at the end of the hearing, when Mr Hindle handed to us a paper which referred to a letter from the CCRC dated 18 July 2003. In this letter it was admitted that the Fresh Evidence Bundle had been received before that time, whereas it had not been the subject of investigation. But that refers to the period before the CCRC agreed voluntarily to consider the matter again (see para 12 above). I have also considered the further documents submitted by the Claimant on 31st December 2006, and the material referred to in that submission. As the Claimant states, this submission does not make any new point that was not before the Court already.
  115. Having considered all the points made in the Claimant's Skeleton Argument, and other written submissions, as well as those made in oral argument, both individually and cumulatively, I remain firmly of the view that I can find nothing that supports the submission that the CCRC has been biased, or that they failed to carry out their duties honestly and with an open mind, or that the Final decision of CCRC is vitiated by anything of the kind.
  116. For these reasons I would dismiss this application.
  117. Lord JusticePill:

  118. I agree
  119. Mr Justice Tugendhat :

  120. This judgment was circulated in draft in the usual way on 19th January 2007, and was due to be handed down on 25th January. The Court was informed by HM Prison service that it was delivered to the Claimant on 23 January. On 6 February Messrs Hindle Campbell wrote on behalf of the Claimant stating that the Claimant has been ill, and that he expected to make submissions to the Court "for arrest of judgment" in the next few days. Accordingly we deferred the hand down of this judgment to give the Claimant an opportunity to make such further submission as he might be advised. The Court subsequently received a psychiatric report dated 12 February describing conditions from which the Claimant has suffered for some years. The Report gives no indication that the Claimant's condition is likely to change in a way material to what is to be done in this case. No further submissions have been received.
  121. There will be no order as to costs save that the Claimant's cost be subject to a detailed assessment in accordance with the Civil Legal Aid (General) Regulations 1989, regulation 107(a).

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