Neutral Citation Number: [2009] EWHC 2926 (Admin)

CO/11715/2009, CO/10190/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 4 November 2009
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE DAVID CLARKE 
- - - - - - - - - - - - - - - 

Between: 
KEVIN JOHN DAVIS 
Claimant

v 

(1) CRIMINAL CASES REVIEW COMMISSION
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendants 
- - - - - - - - - - - - - - - 
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY 
Tel No: 020 7404 1400 Fax No: 0207 404 1424 
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - 
The Claimant appeared in person
Mr David Blundell (instructed by The Treasury Solicitor) appeared on behalf of the 2nd Defendant
- - - - - - - - - - - - - - - 
J U D G M E N T
1	LORD JUSTICE ELIAS:  We have before us two applications made in person by Mr Davis.  One is directed at the Secretary of State, and the other is directed at the Criminal Cases Review Commission.  The background, putting it very generally, is this: Mr Davis was convicted of a sexual offence at the Birmingham Crown Court in October 2007.  He feels very strongly that he was wrongly convicted and that his trial was in breach of Article 6.  He did appeal to the Court of Appeal against his conviction, but that was unsuccessful.  He has made an application to the Criminal Cases Review Commission, and in the light of further material obtained since the trial, he is seeking to persuade them that they should refer his conviction to the Court of Appeal.  They do so if they feel there is a real possibility the conviction will be overturned.  They have not produced as yet a final determination of his application, but they have produced a provisional determination, which has been put to him for further observations, in which they have reached the view that provisionally they do not think that the case ought to be referred.
2	There has been a certain amount of litigation in the past in relation to this matter.  Mr Davis is from South Africa and part of the sentence imposed upon him was that he should be deported once he had served his sentence.  The Secretary of State was going to deport him, but Mr Davis took judicial review proceedings to prevent him doing that pending pursuing his case before the Criminal Cases Review Commission.  It was accepted by the Secretary of State that he should not be deported in those circumstances until the application had been exhausted one way or another and any further appeal had been determined.  He is, however, still in custody.  
3	His application against the Secretary of State is that he ought not be kept in custody and should be allowed bail.  The basis of his case is that his trial was grossly unfair.  He was wrongly convicted.  He has served a sentence he should not have served, and in any event there is no reason why the Secretary of State should choose to keep him in custody.  He is a South African who wants to return to South Africa.  He has no reason to seek to go underground.  He would comply with whatever conditions were imposed, and so forth.  
4	The short answer to this particular application, we think, is that we do not have jurisdiction to deal with it.  The way in which an application for bail needs to be dealt with for somebody in these circumstances is to go to the Asylum and Immigration Tribunal.  In fact, it appears that Mr Davis has done this and was unsuccessful.  I do not know how recently he has done this.  We have amongst our papers a letter from the UK Border Agency dated 16 October 2009, which indicates that Mr Davis is entitled to support under section 4(1)(c) of the Immigration and Asylum Act, but the decision to provide him with support is subject to the proviso that he make an application for bail and should be released on bail from detention under any provision of the Immigration Acts.  This seems to envisage that he would make an application for bail to the appropriate authorities, and if that has not been done (but, as I say, Mr Davis thinks that it has), then presumably that can be done now.  But I fear that it is not for us at this stage to determine whether or not bail should be granted.  
5	In those circumstances, it is probably right, if this matter is to be determined elsewhere, that we should not comment in any detail on the reasons given by the Secretary of State for refusing bail.  They are set out in paragraph 16 of the summary grounds of defence.  We say no more than that they do provide a set of potentially cogent reasons why bail may was refused in the circumstances and given the history of the matter.  
6	We turn then to the application against the Commission.  It is right to say that Mr Davis has made submissions to us in person, with courtesy and clarity.  There is no doubt that he feels very genuinely aggrieved by the way he has been treated and by the injustices he feels have been meted out to him.  He has raised a number of points about the conduct of the Commission.  I am afraid a number of them ‑‑ two of them in particular which I will briefly refer to in a moment ‑‑ were not identified in the original claim form, and they have not been the subject of any comment or observation by the Commission.  I think it would be wrong for us to say very much about them.  One is that he ought to have been given the victim impact statement that the victim in the sexual offence made in earlier proceedings.  I should interpose here that part of his case is that the victim in the sexual assault for which he was convicted was also involved again, allegedly as a victim, in some affray some seven months or so earlier.  It appears that she may have produced a victim impact statement in connection with that affray which he has not seen and says that he ought to be entitled to see. (We assume that there is such a statement.  There is not, of course, always a victim impact statement where crimes have been committed). It may be that there are issues of confidentiality in relation to the victim impact statement which make it inappropriate for it to be disclosed.  As I say, we do not know what the Commission's response to that application would be.  But, save for that, we find it difficult to see why there should be any particular reason why it is being withheld, but we say that with some reservation, not knowing precisely why the Commission may have refused to disclose it.   .  
7	The other matter which has been advanced before us, but we are not in a position to deal with, relates to passages in the provisional report which identify comments made by court appointed counsel who acted for Mr Davis during part of his trial.  He acted in person at his trial, but of course it is not permissible for litigants in person who are the alleged attackers to cross‑examine their victims, so the court   appoints someone to act for them.  In this case ‑‑ again, we say this somewhat tentatively and on only part of the evidence ‑‑ Mr Davis accepts that he was approached by the Commission to ask if he would sign a waiver to enable them to approach counsel.  The Commission did this because they interpreted certain comments he made ‑‑ I have to say, I think, fairly, but he said it was not his intention ‑‑ as being critical of counsel.  He says that he did not authorise a waiver; that the Commission were wrong thereafter to contact counsel; and that they have not been fair in the way in which they have sought to deal with certain criticisms and concerns he has about counsel's response.  In particular, he says that various correspondence indicates that counsel said that he had signed the instructions he gave to her, and he submits that that is certainly not so, and he wishes to see those statements allegedly containing his signature.  
8	Again, I make the point that we have not heard from the Commission about this, but if they have approached counsel without the necessary authorisation, then I am sure they will want at least to look at that issue and make sure that they deal with Mr Davis' understandable concerns as fairly and fully as they are able.  
9	I turn to one issue which is before us, and it is this: Mr Davis seeks to review a decision of the Commission not to disclose to him certain CCTV material which he says is potentially material to his case.  That is CCTV material not relating to the sexual assault itself, but relating to the earlier incident that I have mentioned concerning the affray that took place some seven months or so before the alleged sexual assault occurred.  The reason Mr Davis wants this is that he says that it may assist in demonstrating two aspects of his case which he says are of crucial importance.  The first is that the victim was extremely hostile to somebody with whom she had had a relationship, and she had considered - Mr Davis says wrongly - that he was, as it were, part of that person's circle, and she therefore had a particular interest in wanting to make allegations against him so as to damage him.  
10	The second reason is that he says that it will demonstrate that the victim is not a reliable witness because it shows that she in fact does not tell the truth.  She can be seen to be acting in an irrational and aggressive way.  Also I think he suggests that it may demonstrate how she acts when she has had something to drink.  
11	The basis on which the Commission refused to provide this material was, firstly, that they did not have it, and secondly, that they did not consider that the conditions justifying their obtaining this material from third parties had been satisfied.  Those conditions set out in section 17 of the Criminal Appeals Act 1985 have to be satisfied.  The Commission noted that an application had been made to the trial judge for the CCTV footage to be provided, and he had refused to provide it on the grounds that, even if it went to credit worthiness, there is a limit to the extent to which there can be cross‑examination and testimony of collateral issues.  
12	Mr Davis accepts that the matter was raised before the judge, but he says that he did not appreciate at the time how potentially important this evidence was, because at that stage he did not appreciate why the victim might have wanted to make false allegations against him.  That has subsequently became clearer to him, and he says that this material, the CCTV footage, assists him in promoting the argument that he was set up by false testimony.
13	The Commission reached the view that it was not necessary for them to obtain that document from the third party.  They must be satisfied that the material will assist them in the exercise of their functions and that it is reasonable to request it.  The view of the Commission was that this material would not shed any light on the question whether the complainant formulated a plan of revenge some months later.  In other words, it may show that there was hostility demonstrated by the victim against the defendant and against the other party with whom she had had a relationship, but that would not of itself begin to demonstrate that she had acted out of revenge when she made the allegation of sexual assault at a later stage.  
14	As to the question of cross‑examination on credibility, they concluded very firmly that there was no conceivable basis on which the Court of Appeal would be prepared to hear fresh evidence relating solely to that issue.  In their view, HHJ Ross had reached a perfectly realistic view as to the potential relevance of that material, and they did not think that it would now assist in their reaching a conclusion as to whether or not the matter should be re‑opened before the court.  
15	The other point which I think is relevant here is that the Commission say they have seen the police interviews with suspects, during which the suspects comment on the CCTV footage as it was being shown to them in the interview room. So whilst they do not have a CCTV recording as such, they do have material which demonstrates what various parties have to say about that footage.  
16	The question we have to ask is whether a rational Commission could properly withhold this information, or  more accurately in fact, whether they were entitled to take the view that they did not reasonably require it for the purposes of their investigation.  
17	We think they could reach that view given the circumstances that I have outlined.  It does seem to us that this material would be of relatively minor significance given the material they already had, and given that, to demonstrate that the victim tells lies and/or that the victim has a reason for revenge, would not of itself demonstrate that she would act out of revenge.  Having said that ‑‑ and I emphasise we are finding as a matter of law that the Commission do not have to provide this information ‑‑ we would have thought that it would at least have confirmed the Commission in their understanding of the interviews, and we can see little harm that would have occurred had they chosen to obtain it and had they chosen to make it available to Mr Davis.  
18	I am sure the Commission will know far better than me that one of the important functions they perform is satisfying those who feel they have had an unfair trial that every avenue has been explored to consider fully their concerns.  But as I say, I am satisfied that, as a matter of law, the Commission were entitled not to obtain and disclose this CCTV material.  
19	I have to say to Mr Davis that I do not think it would take matters very much further, although I know he feels strongly to the contrary.  I know he will be disappointed with that outcome.  We have listened very clearly to the submissions, and I emphasise again that we do not doubt his deep sense of grievance, justified or otherwise, but we have had to reach a conclusion on the law as it stands, and that is what we have done. 
20	Mr JUSTICE DAVID CLARKE.
21	I agree. 
22	CLAIMANT:  No notes from counsel?  I am getting nothing to rebut the notes either, my Lords?
23	LORD JUSTICE ELIAS:  Sorry? 
24	CLAIMANT:  Have I failed on all arguments to get a copy of the notes? 
25	LORD JUSTICE ELIAS:  We have not dealt with that, really.  We have just indicated that if the Commission went to counsel without getting your authority, then they way wish to do all they can to accommodate your concerns about that.  That is what I have said.  You will get a transcript of the judgment and you will see what we have said about that.  But we are not in a position to deal with that today, as I indicated to you.  We have simply indicated to the Commission how they might approach it if they accept that they did not get your permission.
26	CLAIMANT:  My Lords, I am very grateful for your time, and I know I have overstayed my welcome.  I have a problem about the agreement reached, and you did say something which I am happy about ‑‑ that I can remain until this appeal with the CCRC has been exhausted, and that is my understanding of the evidence.  My Lords, it is deeply concerning that, once the non‑referral is made, if that is the case, that the Home Office will try and remove me immediately back to South Africa, avoiding any appeal that I need to go and get before a court.  As I said before, if a judge has said to me "Mr Davis, there is no grounds in any of this, it is nonsense", I will have to accept that.
27	LORD JUSTICE ELIAS:  I am not sure I can deal with that.  We certainly cannot deal with that now.  At the moment they have given an undertaking they will not remove you until everything is completed.  If they were to seek to go back on that, they would have to come back to court first in order to get that undertaking varied, and you would have an opportunity to deal with that.
28	CLAIMANT:  When you say "exhausted", you mean the entire process? 
29	LORD JUSTICE ELIAS:  I am sorry, those are my loose words.  It would depend exactly what they said on their undertaking.  I am sorry, I am not sure, but you will have to look at that carefully.  Whether there are any other grounds you could advance for not being deported, I do not know.
30	CLAIMANT:  I just wanted to know what ‑‑ you have read it carefully, in your opinion is it ‑‑ 
31	LORD JUSTICE ELIAS:  I should not be giving you advice about that.
32	CLAIMANT:  Thank you very much, my Lords.
33	MR BLUNDELL:  I am sorry to rise, but there is one point your Lordships asked me about which I was not able to answer, which was the source of the powers to go to the AIT.  Whist your Lordships retired I did have another look in McDonald.  The reference was not complete, but I think I can see where it comes from, if I can give that to your Lordships for reference? 
34	LORD JUSTICE ELIAS:  Yes, please.  
35	MR BLUNDELL:  It is a combination of paragraph 2(3) and (4)(a) of Schedule 3 to the 1971 Act, read with paragraph 22(1)(a) of Schedule 2 to the 1971 Act.  Paragraph 2(3) of Schedule 3 is the source of the power to detain.
36	LORD JUSTICE ELIAS:  I have to say it is not my bedtime reading, but there we are.
37	MR BLUNDELL:  My Lords, I simply say that so your Lordships have the reference.