David Jani v Criminal Cases Review Commission

MRS JUSTICE JEFFORD:

1. This is Mr Jani’s renewed application for permission to seek judicial review of decisions of the Criminal Cases Review Commission, which I shall refer to as “the Commission”.

2. Having been convicted following a trial, Mr Jani is serving a custodial sentence for rape. I note that he has appeared today on the link from the prison which was ineffective at the start of the hearing but an opportunity was given to Mr Jani to go back and repeat the submissions that may have been lost during the time the link was down.

3. Part of the case against him at trial was that he had drugged his victim with diazepam. There was evidence at trial from a forensic scientist, Mr Mark Tyler, about the behaviour and effects of this particular drug.

4. Having previously made an unsuccessful application for leave to appeal, Mr Jani has applied to the Commission for review of his case and potential referral back to the Court of Appeal Criminal Division. In support of his case he provided to the Commission a report of Professor Atholl Johnston which he says contradicts or, he goes so far as to say, debunks the evidence of Mr Tyler such that his conviction is arguably unsafe.

5. It is the case that, although a number of years have passed, at all times when this matter has come before the court, the Commission has not yet made a decision on whether or not to refer the matter to the Court of Appeal Criminal Division.

6. As originally made, Mr Jani’s claim advanced two grounds. One was a challenge to the refusal of the Commission to obtain transcripts of evidence from the trial. Those transcripts were, however, provided and that ground has fallen away.

7. The second issue related to the forensic evidence. Having received from Mr Jani the report of Professor Johnston, the Commission obtained a further report from Mr Tyler in response. The applicant asked for that report to be disclosed to him but the Commission declined, pointing to its published policy which was to disclose any such evidence at the end of its investigation and alongside its written decision. It is said that the purpose of that policy is to avoid piecemeal disclosure which risks disrupting the investigation.

8. The applicant argued that the Commission’s explanation was irrational and unfair. In his submissions today he has pointed to the fact that, whilst he was given the explanation I have referred to, it was subsequently the case, as I shall come to, that a year later the Commission provided him with the report. He says that that supports his case as to the unfairness and irrationality of the original decision.

9. Mr Justice Jay refused permission on the papers on the basis that the application was simply premature because no decision on referral to the Court of Appeal had yet been made. Since then, as I have said, the Commission has provided the applicant with Mr Tyler’s responsive report. They say that they have done so in the interests of not prolonging this particular piece of litigation.

10. Despite that, Mr Jani pursues his application. As the application was originally framed, the renewed application serves no purpose because he has the report. However, the claim made has extended into allegations made in writing and orally today of bad faith and irrational or unlawful conduct by the Commission.

11. It is not open to the applicant to simply put before the court, whether in writing or orally, new grounds of challenge to the decisions of the Commission, and that would in itself be a good reason to refuse him permission to judicially review any relevant decision of the Commission. I have nonetheless heard Mr Jani’s explanation of the points that he now wishes to raise and the new ground which is front and centre of his submissions to this court.

12. Mr Jani’s primary point - the one that is front and centre - is that the Commission is now acting unlawfully in that it has not sought to arrange a meeting of the two experts, Mr Tyler and Professor Johnston, and not sought to obtain a joint statement of matters agreed and not agreed from those two experts.

13. This argument is completely misconceived. There is no obligation on the Commission to do this. In oral argument I asked Mr Jani to identify where that obligation was to be found. He particularly relies on the Forensic Science Regulator Act 2021 . In writing he had also referred to the Criminal Procedure Rules and yet further has made reference to the Forensic Science Regulator Code of Practice and/or Guidance.

14. Starting with the Criminal Procedure Rules, these expressly apply to court proceedings only and not to the process of the Commission. That is set out in express terms in those Rules. Even where the Rules do apply, Part 19.6, which deals with joint meetings and joint statements, does not require a joint meeting of experts and the provision of a joint statement. It leaves to the discretion of the judge whether to direct that the prosecution and the defence should arrange a meeting of the experts and the provision of a joint statement.

15. The Forensic Science Regulator Act 2021 and the Code of Practice made under it apply to providers of forensic science services or, as framed in the Act , persons carrying out forensic activities. That is not what the Commission is doing in its investigations. It is not carrying out forensic science activities and the Forensic Science Regulator Act does not apply to it.

16. When Mr Jani was asked to explain his position in relation to the Act and his argument that the Commission was not immune, as he put it, from the application of that Act , his submissions focused on the definition of “proceedings” in the Act . However, the point of the Act is that it is directed at those who are providing forensic science services in proceedings or for the purposes of proceedings. Again that is not what the Commission is doing and there is no obligation on the Commission to arrange a joint meeting or to require a joint statement. Even where there are proceedings within the meaning of the Act , the Act does not impose any obligations on the court or the tribunal to arrange a joint meeting or a joint statement.

17. What the Act does is provide for the regulator to produce a Code of Conduct which governs those who are providing those services for the purposes of proceedings and to give, in the Code of Conduct and the Guidance, directions to those providing those services as to how to conduct themselves in producing reports or engaging in joint meetings and so forth. I repeat once again that that does not apply to the process of the Commission.

18. There is, therefore, nothing unlawful in the conduct of the Commission in not doing what the applicant wants them to do and there is no relevant decision which could be the subject of judicial review.

19. Taking the matter slightly further, Mr Curtis, who has appeared on behalf of the Commission, has explained the Commission’s position in his written skeleton argument. As he says, there are two possible outcomes to the investigation of the Commission. The Commission may decide to refer the case to the Court of Appeal. If that happens, the issue of whether to direct a joint meeting and joint statement will become a matter for the Court of Appeal Criminal Division under the Criminal Procedure Rules. Alternatively, the Commission may decide not to refer. In that case it will issue a provisional statement of reasons, inviting further comment. One potential outcome might be consideration of a joint meeting. However, that point has not yet been reached and there is no decision capable of challenge.

20. Today in his oral argument, Mr Jani further argued that the experts have by their reports agreed that the bottle of diazepam, the drug with which he is said to have drugged his victim, was fictitious. He argues that that is something the Commission has refused to look into. I simply do not understand or accept that argument. If that is what is demonstrated by the experts’ reports, it is something that he can raise with the Commission for the Commission to consider as part of its investigation. I have seen no evidence of the Commission refusing to consider such a point and nothing that has been done by the Commission that is unlawful or irrational. Once again, no decision has been taken on the arguments that Mr Jani may wish to put before the Commission.

21. Another matter relied upon in writing, and touched upon in Mr Jani’s submissions today, is delay in consideration of the applicant’s application to the Commission. That is not, strictly speaking, part of the claim for judicial review. However, on the basis of the material before the court, although it has taken a considerable time for the Commission to reach a point where it will make a decision, the Commission has put forward proper reasons for the time taken. Again, I cannot see that there is anything that will give rise to a reasonably arguable case that it has acted unlawfully and irrationally.

22. In so far as that delay relates to the expert evidence, and as I have mentioned, Mr Jani relies particularly on the year between the Commission’s refusal to disclose the second report of Mr Tyler and the subsequent disclosure. In disclosing the report, the Commission, in my view, behaved properly. For the reasons I have already indicated, it was not obliged to disclose the report and took a rational decision not to do so. The simple fact that it then decided to disclose the report, in the interests of not prolonging the litigation, does not give rise to any inference of unlawfulness or irrationality.

23. Mr Jani has also made some oral allegations, which to some extent flow from the allegations of delay, about bad faith on the part of the Commission. He says that lies were told by the Commission about documents which had been sent to them or received by them. Those matters seem to go to arguments previously raised and which led to the Commission agreeing to undertake a further review. They are not relevant to this renewed application for permission to seek judicial review.

24. Accordingly, permission is refused on this oral renewal. __________________________ (This Judgment has been approved by Mrs Justice Jefford.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com