PAGE 5..THE QUEEN. Criminal Case Review.

THE QUEEN on the application of MARTIN BOSTON and WARREN BOSTON v CRIMINAL CASES REVIEW COMMISSION [2006] EWHC 1966 (Admin)

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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31 July 2006

Lord Justice May:

The Criminal Cases Review Commission

The Criminal Cases Review Commission is a body corporate established under section 8 of the Criminal Appeal Act 1995. Where a person has been convicted of an offence on indictment, the Commission has power to refer the conviction to the Court of Appeal Criminal Division. Such a reference is treated for all purposes as an appeal by the person against the conviction under section 1 of the Criminal Appeal Act 1968 (section 9). A reference may not be made unless an appeal against the conviction has been determined or leave to appeal against it has been refused (section 13(1)(c)). To make a reference, the Commission must consider that there is a real possibility that the conviction would not be upheld if a reference were made; and they must so consider because of an argument or evidence not previously raised or relied on in the proceedings (section 13(1)(a) and (b)). A reference by the Commission thus enables a convicted defendant to appeal against his conviction for a second time on the basis of new material. It is a safety valve for miscarriages of justice. If the Commission decides not to refer the conviction to the Court of Appeal Criminal Division, the convicted defendant cannot appeal again. He can, however, in an appropriate case apply for judicial review of the Commission's refusal to refer. The present proceedings are such an application on behalf of Martin and Warren Boston.

In Mills and Poole v CCRC [2001] EWHC Admin 1153, Lord Woolf LCJ explained the legal framework of the Commission. [See subsequent appeal Mills, Poole]. He said that 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 must justify a new decision. So far as the Commission is concerned, it must appear that a real possibility that the conviction would not be upheld exists as a result of new evidence or argument. The role of the court hearing applications for judicial review to challenge decisions of the Commission is very much a residual one. Lord Woolf referred to the judgment of Lord Bingham of Cornhill in R v CCRC ex parte Pearson [1999] 3 All ER 498, where Lord Bingham emphasised that the only function of the Divisional Court is to ensure that the Commission acts lawfully, not to substitute its own view for a reasonable and lawful decision of the Commission. It is not appropriate to subject the Commissions reasons to a rigorous audit. 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. Lord Woolf said that the Divisional Court cannot 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 Divisional Court should 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 done. This would usurp the Commission's functions.

Facts

During the 1980s, Martin Boston, the first claimant, was a member of a consortium, which included a Canadian called Mark Nathanson, established to prospect for gold in the African Republic of Mali. Another member of the consortium was George Hervey-Bathurst. Martin Boston had been Hervey-Bathurst's solicitor, but he eventually became a member of the consortium in his own right. The consortium obtained a licence to mine for gold from the Government of Mali, and Martin Boston signed the concession on behalf of a Swiss bank, who were agents for the then members of the consortium. This consortium did not proceed. Nathanson eventually carried on by himself unknown to its other members. In 1987, Nathanson obtained another licence to prospect for gold in Mali through a company called Iamgold. There was some similarity between this concession and the previous one, which led some members of the first consortium to assert that they had an interest in the second. Nathanson did not inform the members of the first consortium that he had obtained another licence to prospect in an area which overlapped that of the original consortium, nor that he had used the same geologists' report, which Martin Boston (See James Snell’s letter from Mr. Boston demanding the report and maps). had paid for personally on behalf of the first consortium. Eventually the new venture was successful and began to generate significant earnings. In 1994, a share listing for Iamgold in Canada was being arranged. In 1990, Nathanson gave Hervey-Bathurst what he said was a goodwill gift of 500,000 shares in the new venture. Hervey-Bathurst came to believe that he was entitled to more shares because of his involvement in the first consortium. He pressed his claim with Nathanson until 1992, but then did not proceed with it. Hervey-Bathurst approached Martin Boston in 1994 and asked him to search his old client files to see whether they contained anything that he did not have. Martin Boston was to say in evidence at his trial that he regarded Hervey-Bathurst's claim for more shares as spurious. By September 1994, he said that Hervey-Bathurst had accepted that he had no claim and had abandoned it. But among the files which Martin Boston considered were documents which he believed entitled him, Martin Boston, to a substantial share in the new venture. He decided to approach Nathanson to press his own claim, but Nathanson initially avoided him.

On 21st September 1994, Nathanson telephoned Martin Boston from Iamgold's premises in Canada. He taped the call while two of his colleagues listened in. Martin Boston implied to Nathanson that there were documents in his files which may have supported Hervey-Bathurst's claim. Martin Boston was to say in evidence that this was untrue and a device to get Nathanson to talk to him about his own claim. After this telephone call, Nathanson consulted the police in Canada who, he said, advised him to record further meetings or calls with Martin Boston. Nathanson returned to the United Kingdom at the end of September 1994. On his return, he received a further unrelated claim from Hervey-Bathurst. He was also served with a writ from another person seeking a share of the proceeds in the new venture. All this could have affected Iamgold's flotation. Nathanson met Martin Boston and his brother Warren Boston, the second claimant, a retired stockbroker, at the Churchill Hotel in London on 3 October 1994. Nathanson secretly recorded this meeting. At the meeting, Martin Boston, supported by Warren Boston, in effect offered to destroy documents in his possession which may have supported a claim by Hervey-Bathurst. After the meeting, Nathanson contacted his solicitor who informed the police. Detective Superintendent Alec Edwards was allocated to the investigation.

There were further telephone calls and meetings after 3 October 1994, during which much of the original conversation was repeated. There was a final meeting at the Churchill Hotel on 2 November 1994, at which Martin Boston restated that he had a substantial claim against Nathanson. Warren Boston said that he and his brother wanted some shares and that Nathanson wanted to get both Martin Boston and Hervey-Bathurst off his back. He referred to Nathanson wanting papers which might exist. Nathanson complained that what Martin and Warren Boston were doing was blackmail and extortion. At the end of the meeting, Martin and Warren Boston were arrested. Martin and Warren Boston were charged with conspiracy to pervert the course of justice. Their defence at their trial in summary was that the first mention of destroying documents came from Nathanson; that they never intended to destroy the documents, but only went along with and pretended to agree with his suggestions. This was a negotiating strategy instigated by him and intended to frustrate a genuine claim against him. Nathanson's purpose was to entrap them and then have them arrested to frustrate Martin Boston's well founded claim which itself had the capacity of affecting the stock market flotation of Iamgold. There were in any event a number of copies of the documents in the hands of various people. On 3 March 1997, the claimants were convicted at the Central Criminal Court before Her Honour Judge Goddard QC and a jury of conspiracy to pervert the course of justice. Martin Boston was sentenced to 2 years' imprisonment; Warren Boston to one year's imprisonment. They appealed against conviction to the Court of Appeal Criminal Division. Grounds of appeal included that the judge had wrongly refused a submission on behalf of the defence that the prosecution evidence raised no case to answer; that Martin Boston had been unfairly prejudiced by the failure of the prosecution to advance through its own witnesses or in cross-examination substantive matters subsequently relied on; and that the judge was wrong in directing the jury in relation to the point at which the alleged conspiracy started. The appeal was dismissed on 18 July 1997.

Reference to the Commission

On 9 April 2002, the claimants made representations to the Criminal Cases Review Commission. There followed two years of correspondence and investigation. In April 2004, the Commission gave reasons for refusing to refer the claimants' cases to the Court of Appeal. The claimants began judicial review proceedings, which were subsequently withdrawn after the Commission gave further disclosure and agreed to consider further representations. Further representations were made, and in August 2005 the Commission gave the decision which is now under challenge not to refer the claimants' cases to the Court of Appeal. The main basis upon which the claimants sought reference to the Commission depended on the contents of an Investigation Report dated 31 January 2002 by Chief Superintendent Bamber into a complaint by the claimants against Detective Superintendent Alec Edwards. The claimants' case was and is that shortly after Edwards was assigned to their case, Nathanson entered into a corrupt relationship with Edwards by offering him a job with companies with which he was associated at a large and unjustifiable salary with other benefits. After he retired, and possibly before that, Edwards worked as Managing Director of two Nathanson companies at a salary of around £105,000 p.a. At the time of the trial, the defence knew that Edwards had gone to work for Nathanson after his retirement, but did not know of the antecedent relationship. Edwards retired in August 1995, well before the claimants' trial. He had been the officer initially in October 1994 assigned to investigate their case, but he relinquished that function by the time he retired, if not earlier. The Bamber Report concluded that there was a prima facie case of corruption. The Investigation Report records that Edwards made a statement