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17 January 2018

No smoke without fire: revisiting the Crown exemption rule

When is the Crown bound by a statute that does not expressly refer to it? This was the question that arose for consideration by the Supreme Court in R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81 (see the judgment here). 

The judgment

The appellant, a serving prisoner, sought judicial review of the Secretary of State’s refusal to provide prisoners at HMP Wymott with access to the NHS’s Smoke-free Compliance Line. This freephone telephone line is designed to enable anyone to draw breaches of the ban on smoking in enclosed public places and workplaces in England and Wales to the attention of enforcement authorities. The refusal to provide the appellant with access to the Compliance Line was made on the basis that Part 1 of the Health Act 2006 (which brought the ban into force) did not bind the Crown. The claim succeeded at first instance (before Singh J), but the Court of Appeal (Lord Dyson, McCombe LJ and Richards LJ) allowed the Secretary of State’s appeal.

In a unanimous judgment, the Supreme Court dismissed the appeal. They refused to revisit the presumption, stated in Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 and Lord Advocate v Dumbarton District Council [1990] 2 AC 580, that a statutory provision does not bind the Crown, save by express words or “necessary implication” (the “Crown exemption rule”). The Court found that the presumption is so well established that many statutes will have been drafted and passed on the basis that the Crown is not bound.

The Court went on (at paragraph [36]), to set out several propositions that constitute the rule, before applying them to the case at hand. The Court found that, although there were indications that, before the 2006 Act was passed, the prison service expected to be subject to the smoking ban, there were powerful indicators in the language of the 2006 Act that the Crown was not bound. First, the statute did not say that the Crown was bound. Second, in legislation with comparable structures and enforcement powers, there are provisions dealing with how the Act is to apply to the Crown, such as the Health and Safety at Work etc Act 1974. Third, there is a provision in section 23 of the 2006 Act binding the Crown in relation to Part 3, which deals with the Supervision of Management and Use of Controlled Drugs, as well as a provision in section 10 of the Smoking, Health and Social Care (Scotland) Act 2005 binding the Crown for the Scottish equivalent to the smoking ban. Therefore the silence on the point in Part 1 of the 2006 Act implies that that Part does not bind the Crown.

Commentary

In Black the Supreme Court did not conclude that the Crown cannot be bound by the smoking ban, but rather that the 2006 Act does not provide for the Crown to be bound. One of the principles explained by the Court in its judgment is that the Crown exemption rule is one of statutory interpretation, rather than a strict immunity from liability.

It is a rule that, nonetheless, raises a number of questions for debate.

First, it may be argued that the Crown exemption rule renders the law less accessible: without legal training anyone reading the 2006 Act might reasonably assume it binds the government. In consequence, there may be a danger that the issue of whether a particular law should bind the Crown may not receive the prominence it deserves.

Second, the rule might be considered to make the law less certain. Without it, it would be unnecessary to ask a Court to determine whether there was a “necessary implication” that the Crown was bound (a task that would perhaps have been harder and less certain in Black, had there been no reference to the Crown in the equivalent Scottish provisions or other Parts of the 2006 Act).

Third, it may be considered surprising to some that, where there is no express provision, the starting point is a rule of statutory construction that has the effect that legislation does not apply to Crown servants. As the Supreme Court noted (see paragraph [33] of the judgment), Paul Craig has highlighted that the Crown exemption rule is not always in the mind of the parliamentary draughtsperson, such that where the rule is not contemplated, the Crown could be exempt from provisions that were intended to apply universally. For example, the Offences Against the Persons Act 1861 contains no provision relating to the Crown: strict application of the rule might be argued to have the result that Crown servants are not committing offences if, in the course of their duties, they commit one of the offences contained within that Act.

At present, there is no difficulty with Parliament adding a provision to any Act to make it bind the Crown (indeed this is given as a justification for upholding the rule), but it could equally easily add explicit exemptions where desirable. In the circumstances, and given the considerations noted above, it might be argued that the latter approach is preferable and more in keeping with democratic norms.

It is, of course, easy to see why certain laws should not bind the Crown. Soldiers need to be able to carry guns without obtaining a licence from their local constabulary, for example. In the case of the smoking ban, a key part of the statutory scheme is a regime of inspection and enforcement. It is plainly undesirable that local government officials should have a right to enter and inspect all government buildings – in the context of this case, for example, arriving at a high security prison and demanding to inspect the premises.

It is also sometimes unnecessary for laws to bind the Crown. The Government had already voluntarily introduced smoke-free offices, and there is no suggestion that breaches of the rules by civil servants were being tolerated. Even in the prison context, plans for entirely smoke-free prisons (including the residential areas or cells) are well underway.

However, it is open to question whether these justifications for Crown exemption bear on what should be assumed where a statute does not contain a provision on Crown application.

It is noteworthy that Lady Hale suggested (at paragraph [35]), that there is a strong case for Parliament to clarify the rule in primary legislation. Regardless of any view of the merits of the Crown being exempt from certain legal provisions, it might be considered a positive step for the clarity of UK law, to have a short provision simply stating: “Unless otherwise provided, all Acts bind the Crown.” The transitional provisions would be slightly more complicated: naturally it could only apply to subsequent statutes, not to previous legislation that was based on the opposite assumption. But what about later statutes amending earlier Acts, or later statutes which say they must be read with a prior statute since together they create a comprehensive code? Which rule of interpretation then applies? Should such a provision ever be introduced, the Office of Parliamentary Counsel would have an unenviable task.

This post was drafted by Alex Du Sautoy and Vincent Scully, both pupil barristers at 6KBW.

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6KBW
15 January 2018

Weekly Digest: 15 January 2018

In this week’s Digest, we consider three Court of Appeal judgments handed down in recent months on topics including whether a sentence that did not take into account the time spent on remand pursuant to an EAW was unlawful; whether a sentencing judge was correct to conclude that the offender was dangerous from a single offence; and whether a Sexual Harm Prevention Order that imposed a blanket ban on internet use was disproportionate.

R v Prenga [2017] EWCA Crim 2149

The judgment, which is available here, was handed down by Green J on 19 December 2017.

The defendant was arrested on suspicion of committing drugs offences. He was granted bail, subject to a curfew, pending trial. Whilst on bail, he became the subject of a European Arrest Warrant (‘EAW’), issued by Italy. He was remanded in custody pending extradition. No application was made to revoke his bail, however. The defendant pleaded guilty to conspiracy to supply drugs and received a sentence of imprisonment. His sentence did not take into account the period spent on remand pursuant to the EAW, however. The Court of Appeal dismissed the defendant’s appeal and held that whilst the court did have a residual power to make allowances for time spent on remand if necessary to correct an injustice and to reflect exceptional factors, there was no such injustice in the instant case and no exceptional factors.

 

R v Bourke [2017] EWCA Crim 2150

The judgment, which is unavailable, was handed down by Green J on 19 December 2017.

The defendant appealed against an extended sentence comprising a ten-year custodial period and a five-year extended licence period, imposed following his guilty plea to wounding with intent. As to the matter of dangerousness, the Court of Appeal held that there was nothing wrong in principle with the judge’s starting point that he could find dangerousness on the basis of a single incident. As to the matter of an extended sentence, the court observed that it would have been of assistance were the sentencing judge to explain, even briefly, why a determinate sentence was rejected. The court held that this indicates the importance, when imposing an extended sentence, of providing reasons why a determinate sentence would not suffice.

 

R v Parsons [2017] EWCA Crim 2163

The judgment, which is available here, was handed down by Gross LJ on 20 December 2017.

The Court of Appeal considered whether the guidance given in Smith [2011] EWCA Crim 1772 on restrictions on internet access and use that may be imposed by way of a Sexual Harm Prevention Order (‘SHPO’) needed to be adapted in the light of recent technological developments and changes in the way the internet is used in modern society. The Court of Appeal held that a total prohibition on internet access would not be appropriate in anything other than exceptional cases. In all other cases, a blanket ban would be unrealistic, oppressive and disproportionate as it would cut the offender off from too much of everyday, legitimate living.

 

Legislative developments

Assaults on Emergency Workers (Offences) Bill 2017-19 (Second Reading)

 

Magistrates’ Courts (Freezing and Forfeiture of Terrorist Money in Bank and Building Society Accounts) Rules 2017/1290

 

Magistrates’ Courts (Detention and Forfeiture of Terrorist Assets) Rules 2017/1296

 

The Proceeds of Crime Act 2002 (Administrative Forfeiture Notices) (England and Wales and Northern Ireland) Regulations 2017 SI 2017/1223

 

The Administrative Forfeiture of Terrorist Cash and Terrorist Money Held in Bank and Building Society Accounts (Cash and Account Forfeiture Notices) Regulations 2017 SSI 2017/1226

 

The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) (Amendment) Order 2017

 

Other news

David Gauke appointed Lord Chancellor and Secretary of State for Justice

 

UK Justice Secretary seeks legal advice over John Worboys’ release

 

Brexit bill leaves a hole in UK human rights

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Failing to prevent the facilitation of tax evasion: note on Government's guidance

The Criminal Finances Act 2017 introduced two new offences (the first relating to the UK and the other to a foreign jurisdiction), each committed where a relevant body (those most affected by the new offence are likely to be in the financial services, legal and accounting sectors) fails to prevent an associated person criminally facilitating the evasion of a tax. Where the relevant body has put in place reasonable prevention procedures to prevent the criminal facilitation of tax evasion by an associated person (or where it is unreasonable to expect such procedures) the relevant body shall have a defence.

In late 2017, HMRC published guidance explaining the policy behind the new offences. The guidance offers suggestions as to the types of processes and procedures that can be implemented to prevent associated persons from criminally facilitating tax evasion. Such prevention procedures are, according to the guidance, to be informed by six non-prescriptive principles that advisers should take into consideration when determining how best to formulate prevention procedures on behalf of relevant bodies. This note (found here) has been prepared to assist advisers to understand each of the principles identified in the guidance.

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6KBW
6KBW
8 January 2018

Weekly Digest: 8 January 2018

In this, the first Weekly Digest of 2018, the Court of Appeal considered the relevance of mental disorders to the defence of loss of control; and allowed an appeal against a rape conviction where the prosecution had relied upon an edited and misleading series of Facebook messages exchanged between the complainant and the appellant. The Administrative Court considered whether a public prosecutor was a “competent authority” for the purposes of the ‘absence of a prosecution decision’ bar in s.12A of the Extradition Act 2003.

R v Rejmanski [2017] EWCA Crim 2061

The judgment, available here, was handed down by Hallett LJ on 19 December 2017.

In conjoined appeals, the Court of Appeal examined the extent to which a mental disorder could be relevant to an assessment of “the circumstances of the defendant” when considering the partial defence of loss of control under s. 54(1) of the Coroners and Justice Act 2009.  The Court of Appeal held that if a mental disorder had a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it was not excluded by s. 54(3) of the 2009 Act and the jury would be entitled to take it into account as one of the defendant’s circumstances under s. 54(1)(c). The court emphasised, however, that it is necessary carefully to identify the relevance of the mental disorder and that it should not be permitted to undermine the principle that the defendant’s conduct is to be judged against “normal” standards.

Sarah Whitehouse QC appeared on behalf of the Crown Prosecution Service; Louis Mably QC appeared as advocate to the Court

 

R v K [2017] EWCA Crim 2214

The judgment, available here, was handed down by Goss J on 21 December 2017.

The Court of Appeal overturned the appellant’s conviction for rape as the prosecution had relied upon an edited and misleading series of Facebook exchanged between the complainant and the appellant. The Crown’s case centred on consent and turned on credibility.  The Facebook messages which had been deleted by the complainant, but obtained after the trial, undermined her version of events and supported that of the appellant. The messages therefore satisfied the requirements of s. 23 of the Criminal Appeal Act 1968

 

Fox v Germany [2017] EWHC 3396 (Admin)

The judgment, available here, was handed down by Hamblen LJ on 21 December 2017

The appellant appealed against the judgment of the District Judge whereby she found that the extradition request relating to six allegations of tax evasion met the requirements of s. 12A of the Extradition Act 2003 and accordingly ordered the appellant’s extradition to Germany. The sole ground of appeal was that the District Judge was wrong to find that there were no reasonable grounds to believe that the competent authorities in Germany have not yet made the decision to try the appellant. It was argued on behalf of the appellant that the competent authority to make the decision to try is the court rather than the public prosecutor. The court concluded that there was nothing in the German Criminal Code stating that the public prosecutor was not competent to make a decision to try. The public prosecutor was a judicial authority for the purposes of the EAW.

 

In the news

More terror offences to be covered by unduly lenient sentence rules

 

John Worboys recommended for release

 

Ignoring women’s needs in custody breaches their rights

 

Huge sums spent on consultants to help deliver digital courts 

 

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Disclosure: time to cut the Gordian knot?

Non-disclosure in criminal proceedings has long been recognised as a “potent source of injustice” (per Glidewell J in R v Ward [1993] 1 WLR 619, the successful appeal against convictions relating to the 1973 Euston station and M62 bombings). The collapse of the Liam Allan trial has brought the issue back to national attention.

Regrettably, current evidence suggests that this is not an isolated incident. The 2017 joint review of disclosure by HM Chief Inspector of the CPS and HM Inspector of Constabulary found that scheduling of unused material is “routinely poor” and, alarmingly, revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare.”  Non-disclosure also remains the most common reason for the Criminal Cases Review Commission referring cases back to the Court of Appeal.

The disclosure regime established by the Criminal Procedure and Investigations Act 1996 (‘CPIA’) was the statutory response to notorious miscarriages of justice in the 1970s and 1980s, but, 20 years on, it does not appear to be functioning as it always should. The recent explosion in the volume of electronic material is posing still further challenges for investigators and prosecutors seeking to comply with the regime by identifying disclosable material. The R v R & Others [2015] EWCA Crim 1941 is a prime example. The unused material constituted 7 terabytes of data. At the point the case was stayed (the decision was later overturned on appeal) there had been no progress beyond primary disclosure for five years.

The SFO is turning to technology for answers. In the Rolls Royce case, artificial intelligence was used to sift, index and summarise documents.  While that may provide the long-term solution, the software is not readily available beyond the SFO, not least because of cost.

Some commentators and academics suggest the solution lies in adopting the currently forbidden ‘keys to the warehouse’ approach whereby the defence are given access to all material obtained during the investigation (subject to limited public interest grounds for non-disclosure). That would undoubtedly represent a dramatic shift in the approach to disclosure in England and Wales. If we look to other jurisdictions, however, the proposal is not as radical as it might first seem.

In most civil law jurisdictions, the defence have access to all material obtained during the investigation. Generally, in inquisitorial systems, the prosecution prepares for the investigating judge a dossier that contains all the evidence and the full record of the investigation. The judge will then grant the defence access to the full file at some point in the proceedings; exactly when depends on the jurisdiction.

The approach in common law jurisdictions varies. Canada, for example, allows the defence full access to all relevant material obtained in the investigation. In the landmark ruling in R v Stinchcombe [1991] 3 SCR 326, the Canadian Supreme Court affirmed that all relevant information, including unused material, must be disclosed subject only to the reviewable discretion of the prosecution to withhold material irrelevant to the case or on public interest grounds (such as national security or witness safety).

The Canadian Supreme Court dismissed the suggestion that such a general disclosure duty was incompatible with an adversarial system as contrary to the burden of proof and the function of the prosecutor as a minister for justice. Sopinka J went further and observed that:

“…the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.”

Sopinka J also pointed to a further principled argument for full disclosure, namely, that the decision as to whether an unused witness statement was “…sufficiently useful to put into evidence should be made by the defence and not the prosecutor.” 

Similarly, in England and Wales, it is arguable that notwithstanding the provision of a carefully-worded defence statement, a defendant remains in a better position to know what might assist her case than the most diligent prosecutor.

In the USA, the ‘Brady rule’ (so-called after the seminal Supreme Court case of Brady v Maryland 373 U.S. 83 (1963)) provides a constitutional right to exculpatory material. There is, however, a growing ‘open file’ trend at State-level, partly in response to restrictive Federal discovery rules. Some of those schemes make reciprocal defence disclosure a condition of full access to the case file to ensure equality of arms.

The proponents of such schemes argue that they improve efficiency by avoiding pre-trial disclosure arguments and appeals and allow defendants to make better-informed and timely plea decisions. Those points accord with the reasoning of the Canadian Supreme Court in Stinchcombe, which found that any increase in prosecutorial workloads because of full disclosure would be offset by the time saved in resolving disclosure disputes. The ‘open file’ approach would also arguably reduce the scope for police or prosecutorial incompetence or impropriety and improve confidence in the fairness of trials.

Such an approach is also not entirely without precedent in England and Wales. Before the CPIA regime, the common law had developed its own answers to non-disclosure. In 1993, Ward (supra) established a new disclosure standard: all evidence of help to the accused should be disclosed. The Court of Appeal emphasised that,

“…all relevant evidence of help to the accused” is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led.”

That potentially broad obligation was clarified in the later cases (see most notably R v Keane [1994] 1 WLR 746 which held the test was one of materiality). Ultimately, the CPIA, which came into force a few years later, curtailed the prosecutorial disclosure obligation. It must be remembered, however, that the statutory scheme requires that a full schedule of material in the possession of the prosecution is always provided to the defence, save for material which attracts public interest immunity. The defence are, therefore, always made aware of the existence of material and can request copies of it. If the prosecution decline to provide access to the material then application can be made to a judge.

Shifting the burden of identifying material that might undermine the prosecution or assist the defence to the defendant does present its own difficulties. Arguably it is inefficient as the time and cost of examining vast quantities of unused material would fall on both sides, instead of the prosecution alone. To accommodate that, the current public funding arrangements for defence lawyers, which do not provide for specific remuneration for reviewing unused material, would have to change. Even then, it is unlikely to be workable in the most document-heavy cases as the defence would require enormous resources, in terms of both manpower and IT systems, to review all the material. In short, and perhaps unsurprisingly, there are practical difficulties with any disclosure regime.

In the final analysis, such a sweeping change is unlikely to be attractive to the legislature. There is after all broad consensus that the CPIA provides a principled, Article 6 ECHR compliant disclosure regime. The recent criticism relates to its practical implementation and the 2017 joint inspection report provides a series of recommendations from better training to improved strategic oversight which, if implemented properly, would go some way to remedying those concerns.

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6KBW
6KBW
19 December 2017

Weekly Digest: 20 December 2017

In this week’s Digest, the last of 2017, the Court of Appeal allowed an appeal against the refusal of a claim for JR against the IPCC, holding both that the findings of an investigation were inadequate and that disclosure of the report had not been properly approached. The Administrative Court considered prison conditions in Lisbon and concluded there was a real prospect that detention in that facility would infringe Article 3 ECHR such that further information was needed from Portugual. 

 

 

R (Miah) v. Independent Police Complaints Commission and anr [2017] EWCA Civ 2108

The judgment, available here, was handed down by Lord Justice Sales on 14.12.17.

This was an appeal against the decision of the respondent on the grounds that it did not (i) address the issues raised in his complaint; (ii) deal with the issues raised adequately; and (iii) give the appellant enough information about the substance of the investigation. The complaint investigated by the respondent related to the use of a police officer’s powers under Schedule 7 to the Terrorism Act 2000 to detain and interrogate an individual with a view to ascertaining whether they were involved in terror offences. The appeal succeeded on both ground (i) and (ii); the respondent had failed to follow the correct procedure. The case was remitted to the respondent for further consideration.

 

Mohammed v. Comarca de Lisboa Oeste, instancia Central De Sintra, 1A Seccão Criminal, Portugal [2017] EWHC 3237 (Admin)

The judgment, available here, was handed down by Lord Justice Beatson on 12.12.17.

This was an appeal against an extradition order on the grounds that the prison conditions where the appellant was likely to be detained were not compatible with his article 3 ECHR rights. The appeal succeeded in part on the basis that the evidence before the court gave rise to real concerns that detention in that particular prison in Lisbon may infringe the appellant’s article 3 rights. Accordingly, the court requested further information from the judicial authority in Portugal before the appeal continues.

 

General News

Amber Rudd announces new national economic crime centre for UK

 

Scotland Yard carry out urgent review after rape trial collapses

 

MoJ rejects calls for ban on revealing complainants’ sexual history in rape cases

 

Number of children penalised for knife possession rises 16%

 

British soldiers breached Geneva convention in Iraq

 

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Annabel Darlow QC
Will Hays
Annabel Darlow QC and Will Hays
19 December 2017

Money-laundering: a possible loophole for property derived from 'registration offences'?

The US special investigation into ‘Russian influence’ in the 2016 US Presidential election alleges that Paul Manafort acted as a “foreign agent” and that he laundered the proceeds of that conduct. This article considers the case law from England and Wales that may suggest that any property acquired by Mr Manafort through his activities as a “foreign agent” would not count as “criminal property” so that there could have been no “money laundering”.

The starting point of the discussion is the underlying criminal conduct alleged in the USA: it is unlawful to act as an agent of a foreign principal unless a true and complete registration statement has been filed with the Attorney General (Title 22, United States Code, sections 612 and 618). The offence follows a familiar form, whereby certain conduct is lawful provided it has been properly ‘registered’ or ‘licensed’. Such an offence may be described as a ‘registration offence’.

In this jurisdiction it has been held in the context of certain registration offences that a person, D, who commits such an offence does not in law obtain any property “as a result of or in connection with” his criminal conduct. For example, in R v Sumal and Sons (Properties) Limited [2012] EWCA Crim 1840, [2013] 1 WLR 2078 it was held that where a person committed a criminal offence by renting out a property without a licence, the rent was not obtained as a result of the criminal conduct. The Court held that the rent was obtained as a result of the rental agreement, not because no licence was in place. Similarly, in R v McDowell and Singh [2015] EWCA Crim 173; [2015] 2 Cr. App. R. (S.) 14 the Court of Appeal held that where a person profits from the criminal offence of unregistered scrap dealing, he does not “obtain property” as a result of that offence. The profits were obtained as a result of the scrap dealing, not as a result of the failure to be registered.

The argument adopted by the Court of Appeal seems to depend on the idea that it is possible to divide the circumstances of the criminal conduct into (a) the actual conduct – which was lawful apart from the fact that he was not registered and (b) the context which rendered the conduct “criminal”, namely the failure to be registered.

These authorities were concerned with confiscation under Part 2 of the Proceeds of Crime Act 2002. Since nothing was obtained from the criminal conduct there was no “benefit” and there could be no confiscation of assets. However the argument reads across to money-laundering: if nothing is “obtained” from a registration offence, there can be no “criminal property” to be laundered. If the argument is correct, it means a person accused of money laundering could mount a defence on the basis that the money derived from a registration offence.

But the argument has unpalatable consequences. It is lawful to supply controlled drugs provided a licence is in place (see Regulation 5 of the Misuse of Drugs Regulations 2001). Pushed to its logical conclusion the argument suggests that it would be a defence to money laundering to say that the money derived from the supply of controlled drugs (which would be lawful if the person obtained a licence). The argument would be that the money derived from a registration offence (the supply of controlled drugs) and since a person who commits a registration offence does not obtain anything as a result of that offence, no criminal property came into existence which could be ‘laundered’.

Quite apart from the potentially absurd consequences of the argument identified above, there are at least two reasons to be cautious before advancing the argument. First, context is key. The Court of Appeal has held, distinguishing the other cases, that a person may “benefit” from his crime in the following contexts: unlicensed arms dealing (McDowell and Singh, supra); unlicensed security provision (Palmer [2017] 4 WLR 15) and carrying on business in a prohibited name (Neuberg (No 2) [2017] 4 WLR 58). Second, whether a “benefit” can be obtained from a particular registration offence seems to depend on whether the conduct is (a) unlawful, except where covered by a licence or (b) lawful, but only where covered by a licence. This is a fine distinction which appears to be a distinction without a difference.

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6KBW
6KBW
11 December 2017

Weekly Digest: 11 December 2017

In this week’s Digest, the Supreme Court considered the limitation period for bringing a claim under the Human Rights Act 1998 and the Divisional Court considered whether judicial review of a decision not to prosecute constitutes proceedings otherwise than in a “criminal cause or matter” so that a closed material procedure could be used. 

O’Connor v Bar Standard Board [2017] UKSC 78

The judgment, which was delivered by Lord Lloyd-Jones, was handed down by the Supreme Court on 6.12.17.

The Supreme Court considered the limitation period for bringing a claim under the Human Rights Act 1998.  Section 7(5) of the Human Rights Act 1998 uses the expression “the date on which the act complained of took place”.  The Supreme Court held that this phrase could encompass a course of conduct and did not have to be interpreted as meaning an instantaneous act.  The appellant’s claim that the Bar Standards Board had indirectly discriminated against her by bringing and pursuing disciplinary proceedings was therefore not time-barred because those proceedings amounted to a single, continuous course of conduct which continued until the conclusion of the barrister’s appeal to the Visitors to the Inns of Court.

  

Belhaj v Director of Public Prosecutions [2017] EWHC 3056 (Admin)

The judgment, which was delivered by Irwin LJ, was handed down by the Divisional Court on 1.12.17.

The Administrative Court considered whether judicial review proceedings to challenge a decision not to prosecute an individual for misconduct in public office constitute a “criminal cause or matter” within the meaning and for the purposes of the Justice and Security Act 2013. If so, the court could not order the judicial review to take place by way of closed material proceedings.  The court held that there had been no consistent interpretation of the phrase “criminal cause or matter” and that it was capable of having different meanings in different statutes.  The court concluded that the issue in the instant case could properly be regarded as “proceedings” concerning a “criminal cause or matter”, but was not an appeal “in” criminal proceedings, since the outcome of the case would not decide criminal liability.

Victoria Ailes appeared on behalf of the interested party

  

R (on the application of Skelton) v Winchester Crown Court [2017] EWHC 3118 (Admin)

The judgment, which was delivered by Lindblom LJ, was handed down by the Divisional Court on 5.12.17. 

The Divisional Court considered whether the Crown Court could properly refuse to state a case for the opinion of the court. It was held that the Crown Court’s decision not to state a case was lawful. The claimant’s complaint went not to an issue of law, but to the findings of fact made by the Crown Court in coming to the conclusion that the force she used against the victim was unlawful. In these circumstances, the Crown Court was entitled to refuse to state a case.

Michael Bisgrove appeared on behalf of the interested party

R (on the application of O’Connell) v Westminster Magistrates’ Court [2017] EWHC 3120 (Admin)

The judgment, which was delivered by Edis J, was handed down by the Divisional Court on 6.12.17.

The Divisional Court considered whether the Chief Magistrate ought to have stayed proceedings to commit the claimant to prison as an abuse of process due to the length of time that had passed between the imposition of the default sentence and his arrest. The court held that despite the fact the length of time which had passed was very long, the decision of the Chief Magistrate to commit the claimant to prison was lawful. A fact specific decision is required.

 

Director of Public Prosecutions v Smith [2017] EWHC 3193 (Admin)

The judgment, which was delivered by Bean LJ, was handed down by the Divisional Court on 7.12.17.

The Divisional Court considered whether it was reasonably open to the City of London Justices to acquit the respondent on the basis that he had no intent to cause harassment, alarm or distress.

 

Sentencing Remarks: R v Mohammed Abdallah (Central Criminal Court 8.12.17)

 

In the news

The Lord Chief Justice holds his annual press conference

 

Equality and Human Rights Commission to launch its own Grenfell fire inquiry

 

Council of Europe accepts UK compromise on prisoner voting rights

 

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Righting another ‘wrong turn’? Dishonesty in Ivey v Genting: Part II

In this second of two posts (the first can be found here), the criticism of the Ghosh test is considered, together with a brief outline of the concept of dishonesty in the civil cases and some reflections on the future application of Ivey in practice.

The trouble with Ghosh

The decisions in Feely and Ghosh attracted a good deal of academic criticism, among others: D.W. Elliott, “Dishonesty in Theft: A Dispensable Concept” [1982] Crim LR 395; E. Griew, “Dishonesty: The Objections to Feely and Ghosh” [1985] Crim LR 341;  K. Campbell, “The Test of Dishonesty in Ghosh” [1994] 43 CLJ 349.

The essential criticisms were these:

  1. The cases did not actually provide a definition of dishonesty. Instead the jury (or magistrates) were left to give “dishonesty” whatever meaning they thought fit, having regard to prevailing social mores.  By consequence the test was not a legal one but depended on the moral views of the jury.  Moreover, simply because “dishonesty” was an ordinary English word, it did not follow that the jury should be given an uncontrolled discretion over its meaning and application.
  2. The concept of dishonesty had become a central positive feature in offences of property when it should more properly function as a negative feature, controlling liability that would otherwise arise in respect of prima facie unlawful conduct.
  3. The cases created the possibility that some persons would be acquitted on facts not differing in any material respect from those upon which other persons would be convicted.
  4. The cases assumed that juries and magistrates in England and Wales were culturally homogeneous with known and shared standards.  However, the object of the criminal law was to protect property rights and disrespect for those rights abounded – no such shared values could properly be relied upon.
  5. The cases mistook the meaning of dishonesty (a legal concept) with standards of behaviour (an ethical one).
  6. The test risked more trials as defendants had little to lose by pleading not guilty and hoping that the dishonesty element was not made out.
  7. The second limb of the Ghosh test in particular allowed the accused to escape liability where he had made a mistake of fact as to contemporary standards of honesty.  That was no proper reason for excusing criminal liability in the context of property offences – nor did such a concept operate elsewhere in the criminal law.  The Ghosh test attached too much weight to the opinion of the defendant at the expense of the rights of the victims of property offences and the criminal law does not ordinarily excuse individuals who believe that their conduct would be acceptable to others.

Wider concerns

The Ghosh test was also heavily criticised by the Law Commission.  In “Fraud and Deception (Law Commission Consultation Paper No. 155, 1999)” the academic critique of the Ghosh test was found to be compelling (at paragraph 5.28).  It was noted, among other things, that the only apparent function of the second limb of the Ghosh test was to allow a defendant to escape liability on the basis of mistake of fact about what the standards of dishonesty were among the general public: that is to say, a defendant’s misunderstanding of the moral beliefs held by the rest of society provided a basis for an acquittal.

Interestingly, however, in its later report, Fraud (Law Com No. 276, 2002), the Law Commission softened its criticism of the Ghosh test and expressed the view that its application in practice was “unproblematic” (paragraph 5.18).

It is notable in this regard that the Fraud Act 2006 came to be passed on the basis of the law as it stood in Ghosh – criticism and allSome have raised whether, in this context, the decision in Ivey might be considered judicial activism.

Though the position in other common law jurisdictions was not considered in Ivey, it is interesting to reflect that leaving the concept of dishonesty to the uninstructed view of the jury was rejected in Australia only a couple of years before GhoshR v Salvo [1980] VR 401.

In Salvo, the defendant (a used car dealer) sold a car to K, taking from K another car in part exchange.  Salvo then sold the car received from K.  He then discovered that K had no title to sell the car and was put to the expense of perfecting the title of the vehicle.  He then decided to repurchase the car he had sold to K using a worthless cheque.  His conviction for dishonestly obtaining the vehicle (by falsely representing that the cheque would be honoured) was quashed on appeal on the basis that a claim of right is a defence to a charge of obtaining.  The three judges considered the concept of dishonesty and the majority (Murphy and Fullager JJ;  McInerney J dissenting) rejected the approach in Feely while McInerney J held that Feely was rightly decided.  Fullager J found that dishonesty was not a word to be left to the jury on the basis of its ordinary meaning but, rather, meant “with disposition to defraud i.e. with disposition to withhold from a person what is his right”.  The decision in Salvo was followed in Brow [1981] VR 783 and Bonello [1981] VR 633.

Concerns about “dishonesty

Perhaps alive to these criticisms, it is apparent that the senior judiciary had been concerned for some time before Ivey about the concept of dishonesty in the criminal law and, further, an apparent divergence with civil law, especially in relation to dishonest assistance in breach of trust.

In Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, Leveson LJ added a “note of concern” to his judgment if it was the case that “the concept of dishonesty for the purposes of civil liability differed to any marked extent from the concept of dishonesty as understood in the criminal law”.  He noted that the point was apt to be considered by the Court of Appeal (Criminal Division) (at [42]).

Subsequently, a five-judge Court of Appeal heard the case of R v Cornelius [2012] EWCA Crim 500 in which the issue as formulated between the parties included the correctness of the Ghosh test.  Ultimately it proved unnecessary to examine Ghosh.  It may be a matter of interest however, that the position adopted by the respondent Director of Public Prosecutions was that the Ghosh test was wrong and ought to be abandoned in favour of the test applicable in civil proceedings, as articulated by Lord Nicholls in Royal Brunei Airlines Snd Bhd v Tan [1995] 2 AC 378.

The civil cases in overview

In Royal Brunei Airlines Snd Bhd v Tan [1995] 2 AC 378, Lord Nicholls held that dishonesty was the necessary and sufficient condition of liability in cases of dishonest assistance in breach of trust.  The test of dishonesty, in such cases, was an objective one (at page 389).  To the extent that dishonesty required a subjective element, it was to be derived from the fact that it described a type of conduct assessed in the light of what a person actually knew at the time of the breach.  It was not to be found (as in Ghosh) in what a reasonable person would have known or appreciated about that conduct.  Put another way, as Lord Nicholls expressed the test, a person’s knowledge of a transaction or conduct had to be such as to render his participation contrary to normally acceptable standards of honest conduct;  it did not require that he should have had reflections about what those normally acceptable standards were. 

The decision of the Privy Council in the Royal Brunei Airlines case was considered by the House of Lords in Twinsectra v Yardley [2002] 2 AC 167.  In Twinsectra a majority (Lord Slynn of Hadley, Lord Steyn, Lord Hoffman, Lord Hutton; Lord Millett dissenting) held that a finding of liability was only permissible, where following the application of a combined subjective and objective test, dishonesty was established – a Ghosh type test.  However, the decision in Twinsectra Ltd. was explained by the Privy Council three years later in Barlow Clowes International Ltd (in Liquidation) and others v Eurotrust International Ltd [2006] 1 WLR 1476.  In that case it was decided that the test whether a person was consciously dishonest in providing assistance in breach of trust required him to have knowledge of the elements of the transaction which rendered his participation contrary to ordinary standards of honest behaviour, but did not require him to have reflections on what those normally acceptable standards were.  This approach appears to have been followed by Arden LJ in Abu-Rahmah and another v Abacha and others [2007] 1 Lloyd’s Rep 115, the Court of Appeal (Pill, Rix and Arden LJJ) and in Starglade (supra).

In broad summary, the combined effect of the cases in the civil law was that a finding that the defendant was dishonest need only involve an assessment of his participation in the light of his knowledge of the facts of the transaction.  It is this test which now forms the test of dishonesty for the purposes of the criminal law.

The approach for juries following Ivey

The approach as set out in Ivey that the criminal law ought to follow what was said by Lord Nicholls in Royal Brunei Airlines, would seem both principled and of practical merit.

As to what constitutes this test, and how it is to be approached in criminal trials, it may be of assistance to highlight two passages in the civil authorities in particular concerning the extent to which the factual circumstances (including the characteristics of the defendant) may be taken into account.

In Royal Brunei, Lord Nicholls made plain (at page 393):

…. when called upon to decide whether a person was acting honestly a court will look at all the circumstances known to the [defendant] at the time.  The court will also have regard to personal attributes of the [defendant], such as his experience and intelligence, and the reason why he acted as he did.

In Starglade Properties Ltd, the Chancellor summarised the effect of what Lord Nicholls had said in the following way (at paragraph 25):

There is a single standard of honesty objectively determined by the court.  That standard is applied to specific conduct of a specific individual possessing the knowledge and qualities he actually enjoyed.

In sum, the task for the jury is first to find the facts:  what did the defendant do and with what possible intention, belief or other state of mind that is relevant to the offence charged?  The second task is to decide whether the defendant was acting as an honest person would in the circumstances, applying their standards as ordinary and reasonable people.

Concerns addressed?

In conclusion it is perhaps interesting to reflect that, while some of the more trenchant criticisms of Ghosh have been addressed by Ivey (viz. a defendant’s ability to escape liability based on his misunderstanding of prevailing moral standards), the importation into the criminal law of the test in Royal Brunei is not without potential difficulty.

Dishonesty” remains a concept left to the jury which is undefined (save by reference to their own standards) and subject to potentially widespread variation.  Two defendants may still experience different outcomes before different juries on identical facts.  The concept of honesty among a jury drawn from Southwark may differ markedly from those among a jury drawn from Tunbridge Wells.

More significantly perhaps, “dishonesty” remains a central feature in property offences, as opposed to a limiting factor, controlling liability in respect of prima facie unlawful conduct.  This is worthy of particular attention in cases of conspiracy to defraud where the parameters of what constitutes unlawful conduct are strikingly wide, namely:  an agreement to pursue a course of conduct which risks prejudice to the economic interests of a third party.

In circumstances where the operation of basic capitalist economies routinely and inevitably risks economic prejudice to a third party, “dishonesty” forms the crucial ingredient which engages the stigma of the criminal law.  Whether it is right that this is a matter which should be left to a jury as a test of fact, or morality, as opposed to a concept which is a matter of law is perhaps a matter which requires further scrutiny.  The alternative would seem to risk, in effect, the creation by stealth of a generalised property offence of dishonesty – a matter on which Parliament has repeatedly declined to legislate.

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Righting another ‘wrong turn’? Dishonesty in Ivey v Genting: Part I

This blog has previously featured a summary of the landmark judgment in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 and a post examining the dishonesty test now to be applied in criminal proceedings. Our analysis continues with two in-depth posts. In this, Part I, the background to the decision in Ivey is examined, along with a consideration of the Ghosh test and its operation in practice.  In Part II, the academic criticism of Ghosh is discussed together with a brief account of the concept of dishonesty in the civil cases, and some reflections on the future application of Ivey in practice.

The issue

The case concerned a professional gambler who sued a casino for his winnings at a game of Punto Banco (£7.7 million). The issues arising before the Supreme Court included whether the concept of cheating at gambling necessarily required ‘dishonesty’ and, if so, what the proper test for dishonesty would be in the circumstances, namely the test applicable in civil or criminal proceedings.  As Lord Hughes explained, the test of dishonesty in civil proceedings was whether the conduct was dishonest by the ordinary standards of reasonable and honest people (an objective test); the test in criminal proceedings, (pre-Ivey) was the two-limbed Ghosh test, namely: (i) whether the conduct was dishonest by the ordinary standards of reasonable and honest people; and, if so, (ii) whether the defendant knew his conduct was dishonest by those standards (an objective subjective test).

The judgment

In the event, Ivey was decided on the basis that dishonesty formed no part of the concept of cheating.  Accordingly, on one view, the discussion of dishonesty in the judgment might be said to be obiter and confined to the circumstances of a civil action.  The better view, however, would seem to be that the judgment represents the current state of the criminal law on dishonesty and that the two-limb test in Ghosh has been overruled.  Certainly that was the view expressed by the President of the Queen’s Bench Division in DPP v Patterson [2017] EWHC 2820 (Admin) (at [16]):  “It is difficult to imagine the Court ofAppeal preferring Ghosh to Ivey in the future.”

The judgment was the unanimous decision of a Court which included the President, future President, and the former Lord Chief Justice (Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes and Lord Thomas).  The position on any future appeal to the Supreme Court is, to that extent, predictable and it is notable that Lord Hughes expressed himself in unambiguous terms: “directions based upon [Ghosh] ought no longer to be given” (at [74]).

It follows that the directions as formulated in the current edition of the Crown Court Compendium: Part I Jury and Trial Management and Summing Up (February 2017) (pp 8-16 to 8-19) would appear to have been superseded. There is no longer a requirement for any jury to consider the subjective state of mind of a defendant as to whether his conduct was dishonest or not.

Following Ivey, the entirety of the test of dishonesty in the criminal law is now objective.  Juries are to be directed accordingly on a straightforward question: was the defendant’s conduct dishonest by the ordinary standards of reasonable and honest people?  Whilst answering that question may take account of all the circumstances, as the jury find them to be (including the defendant’s state of knowledge, belief or suspicion), a defendant’s own evaluation of his conduct no longer forms part of the test.

Righting another wrong turn?

In abandoning the Ghosh test the Supreme Court has taken another step to clarify certain areas of doctrinal debate arising from decisions of the House of Lords and Privy Council in the early 1980s.  Ivey sits alongside the seminal decisions in G v R [2003] UKHL 50, resolving controversy as to the proper test of recklessness following R v Caldwell [1982] AC 341; and R v Jogee, ‘righting’ a wrong turn in the test for parasitic accessorial liability derived from Chan Wing Siu v The Queen [1985] AC 168).

The genesis of the controversy surrounding the Ghosh test can be traced at least to R v Feely [1973] QB 530.  Feely concerned the manager of a betting shop who took £30 from the till for his own purposes.  This was contrary to his instructions, but he had a right of set-off for this amount in respect of money owed to him by his employer, so his employer was not placed at any financial risk.  His conviction of theft was quashed because the trial judge had removed the issue of dishonesty from the jury.

The Court of Appeal decided that it was for the jury to determine whether what the defendant did was dishonest applying the current standards of ordinary decent people.  This test was a notable departure from the test under the old law of larceny (prior to the Theft Act 1968) – which left the concept of ‘fraudulently’ as a matter for the judge – and from the practice envisaged by the drafters of the 1968 Act, in which the concept of dishonesty was expected to play only a minor role.

As a result of Feely, the criminal law relating to property offences changed significantly:  it was now for a jury to decide on what constituted dishonesty by reference to the prevailing moral standards and whether the defendant had transgressed those standards.

In a number of cases that followed it was held that the jury were required to take into account not only the prevailing moral standards but also the defendant’s own opinion on whether he acted honesty:  R v Gilks [1972] 1 WLR 1341;  Boggelin v Williams [1978] 1 WLR 873;  R v Landy [1981] 1 WLR 355.

This approach to dishonesty was disapproved in R v McIvor [1982] 1 WLR 409, where, in order to avoid the implications of the earlier decisions, it was held that in a case of conspiracy to defraud a different test was to be applied.

It was against this background that the Court of Appeal came to consider Ghosh.

The Ghosh test

In Ghosh, the Court of Appeal (Lord Lane CJ, Lloyd and Eastham JJ) held that in determining whether the prosecution has proved that a defendant was acting dishonestly involved a two-stage objective-subjective test.  Lord Lane CJ stated (at paragraph 1064D):

… a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest.  If it was not dishonest by those standards that is the end of the matter and the prosecution fails.

If it was dishonest by those standards then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.  In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.  It will be obvious that the defendant himself knew that he was acting dishonestly.  It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. 

By introducing such a test, which looked first to the standards of reasonable and honest people and then to the defendant’s own state of mind, the Court of Appeal attempted a compromise.  On the one hand it modified the objective test, as set out in Feely, which some considered to be overly harsh, but it avoided the purely subjective approach of Gilks, which some considered to create a thief’s charter.

As to when the direction was to be given requiring a jury to apply the test in Ghosh, the Court of Appeal clarified the position in R v Price (1989) Cr App R 409:

… it is by no means in every case involving dishonesty that a Ghosh direction is necessary.  Indeed in the majority of such cases, of which this was one, it is unnecessary and potentially misleading to give such a direction.  It need only be given in cases where the defendant might have believed that what he is alleged to have done was in accordance with the ordinary person’s idea of honesty.

Put another way, Price made clear that the Ghosh test was in fact only to be applied by juries in circumstances where the second limb of the test arose for consideration, namely the defendant’s evaluation of whether his conduct was aligned with general standards of morality.

It is right to note that in practice, the Ghosh direction is now most frequently given in cases involving complex financial frauds.  In such cases it has commonly been a live issue whether, for example, a trader in esoteric financial instruments believed that what he or she was doing was dishonest by the standards of ordinary people given the conduct in which he or she engaged was widespread within the industry.

Part II will be published next week.

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6KBW
6KBW
4 December 2017

Weekly Digest: 4 December 2017

In this week’s Digest, there were two interesting decisions handed down by the Court of Appeal (Criminal Division). In the first, a conviction for conspiracy to import cannabis was quashed on the basis that the evidence had been admitted which, in its unredacted form, was prejudicial to the appellant. In the second, the trial judge gave no direction as to the admitted hearsay evidence, but a conviction of murder was upheld since this did not amount to a material misdirection. Elsewhere, the Administrative Court upheld the decision of the Criminal Cases Review Commission not to refer the claimant’s case for a third time to the Court of Appeal and the Court quashed an order for costs made in the Crown Court as the judge has erred in his application of s.19 of the Prosecution of Offences Act 1985.

 

R v. RJ [2017] EWCA Crim 1943

The judgment, available here, was handed down by Lord Justice Simon on 28.11.17.

This was an appeal against conviction for conspiracy to import cannabis on the grounds that the judge erred in (i) admitting evidence which should have been excluded and (ii) allowing evidence of his previous conviction to be adduced. The appeal was allowed and the conviction quashed on the basis that an important piece of evidence – the appellant’s notebook –  should not have been put before the jury in the form it was and, in addition, there was no appropriate direction in relation to that piece of evidence such that the conviction was rendered unsafe.

 

R v. Daley [2017] EWCA Crim 1971

The judgment, available here, was handed down by Lord Justice Simon on 01.12.17.

This was an appeal against a conviction for murder on the basis that the judge’s handling of the hearsay evidence relating to the appellant’s character at trial amounted to a material misdirection rendering the appellant’s conviction unsafe. The appeal was dismissed. Owing to the fact that the hearsay evidence had become far less significant in the context of the issue the jury had to determine, the judge’s omission to give a direction as to the utility and limits of hearsay evidence did not amount to a material misdirection rendering the conviction unsafe.

 

R (on the application of Hart and others) v. The Crown Court at Blackfriars and another [2017] EWHC 3091 (Admin)

The judgment, available here, was handed down by Lord Justice Holroyde on 30.11.17 sitting in the Administrative Court.

This was an application for judicial review of the issue and execution of two search warrants, issued in the Crown Court at Blackfriars on 12 December 2016 and executed by searched of the claimants’ premises on 14 December 2016. The basis for the challenge was the, in making their application, HMRC (the second defendant) misrepresented the law and facts to the judge in important respects. The claim succeeded on the narrow basis that HMRC overstated their case without sufficient foundation or disclosure to enable the judge to give fair consideration to it. There was, in the judgment of the court, a material misrepresentation of the facts and a failure to draw the relevant matters to the judge’s attention.

 

R (on the application of Gilfoyle) v. Criminal Cases Review Commission [2017] EWHC 3008 (Admin)

The judgment, available here, was handed down by Lady Justice Sharp on 24.11.17 sitting in the Administrative Court.

The claimant sought judicial review of the defendant’s decision not to refer the claimant’s conviction for murder to the Court of Appeal. The claimant had on two previous occasions appealed unsuccessfully to Court of Appeal and on this occasion contended that the defendant’s decision not to refer was irrational in a number of respects. The claim failed and permission to review refused on the basis that no element of the decision was irrational and that the court was thus not entitled to interfere with the defendant’s lawful exercise of discretion.

 

Wright v. Parole Board of England and Wales [2017] EWHC 3007 (Admin)

The judgment, available here, was handed down by Mr Justice Jeremy Baker on 27.11.17 sitting in the Administrative Court.

The claimant sought judicial review of a decision of the Parole Board on the basis that they had made a determination about the claimant in the absence of a full psychological risk assessment which the defendant had itself commissioned. The claim did not succeed; there could be no valid criticism made of the defendant’s decision not to adjourn the review hearing for psychological reports and the claimant had not suffered any unfairness as a result.

 

R (on the application of the Director of Public Prosecution) v. Aylesbury Crown Court [2017] EWHC 2987 (Admin)

The judgment, available here, was handed down by Lady Justice Sharp on 24.11.17 sitting in the Administrative Court.

This was an application by the Crown Prosecution Service seeking an order quashing the costs order made against it under s.19 of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulation 1986. The applicant’s core submission was that the judge fell into error in ruling that the CPS should be liable for the actions of an expert witness and, in any event, the judge did not specify the costs actually to be paid in the order as they were required. The claim succeeded and costs order was quashed.

 

Kozlowski v. Regional Court in Piotrkow Trybunalski (Poland) [2017] EWHC 3005 (Admin)

The judgment, available here, was handed down by Mr Justice William Davis on 22.11.17 sitting in the Administrative Court.

This was an appeal against extradition on two grounds: (i) the offence with which the appellant was charged was not an extradition offence; and (ii) extradition would be incompatible with the appellant’s article 8 ECHR rights. The appeal was allowed, but not on the grounds put forward. Rather, since the appellant had been detained for the same term he would have served in prison had he been extradited, the judge followed Dudkiewicz v. Regional Court in Warsaw (Poland) [2017] EWHC 2171 and discharged the arrest warrant.

 

R (on the application of Vigrass) v. Parole Board of England and Wales [2017] EWHC 3022 (Admin)

The judgment, available here, was handed down by Mr Jonathan Swift QC on 23.11.17, sitting as a Deputy Judge High Court judge in the Administrative Court.

The claimant sought judicial review of defendant’s failure to address in a decision letter whether or not the claimant should be transferred to open prison conditions. The claim succeeded on the basis that the defendant had been asked by the Secretary of State to consider this aspect. A mandatory order granted compelling the defendant to consider this.

 

Other News

Lord Steyn died last week, aged 85

Security clampdown at the Hague after Praljak suicide

Man jailed for murdering toddler stepson 50 years ago

Senior police officers to lose power to self-authorise access to personal web and phone records

Scottish politicians to ask ECJ if UK can stop Brexit

 

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Fiona Alexander
Fiona Alexander
28 November 2017

Dwell not: DPP v Distill [2017] EWHC 2244 (Admin)

The concept of a “dwelling” has some significance in the criminal law. A burglar who commits their crime in a dwelling is sentenced more harshly than if they were to have burgled a non-dwelling, such as a shop. In the context of the Public Order Act 1986 (“the Act”), a person cannot commit the offence of causing harassment, alarm or distress under section 5 when they use the words or exhibit the behaviour when they are inside a dwelling and the affected person is also inside a dwelling. For the purpose of that Act, a dwelling is defined in section 8 as “any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose ‘structure’ includes a tent, caravan, vehicle, vessel or other temporary or movable structure…”

It was the understanding of the concept of “dwelling” in the context of section 5 of the Act that the High Court grappled with in DPP v Distill [2017] EWHC 2244 (Admin). The case arrived at the High Court by way of case stated from the magistrates’ court. The matter arose from an alleged incident in which the respondent, when in the back garden of her grandmother’s property, was said to have shouted racist abuse; this was heard by neighbours in the adjoining property, who also happened to be in their back garden. The respondent denied using the words, but she was charged with an offence under section 5(1) of the Act for using threatening or abusive words or behaviour within the hearing of a person likely to be caused harassment, alarm or distress. Furthermore, the offence was alleged to have been racially aggravated within the terms of section 28 of the Crime and Disorder Act 1998, contrary to section 31(1)(c) and (5) of that Act.

It was accepted as between the parties that the incident had taken place wholly within the back gardens of the adjoining properties. At trial, the magistrates found that the definition of a “dwelling” includes a private garden such as the back garden which featured in this case, and therefore, no offence had been committed. Having made this pre-trial ruling, the magistrates’ ruled that there was no case to answer at the close of the prosecution case. The High Court was asked by the magistrates’ court whether it was correct in its ruling that the incident had occurred inside a dwelling.

The High Court ruled that the magistrates’ court was not right to have made this ruling. It was argued on behalf of the respondent that the Court could be assisted by looking at the meaning attributed to the words “dwelling” and “dwelling-house” in other statutory concepts. The Court, however, agreed with the appellant: to establish the scope of the exception, the Court should concentrate on the language of the Act itself. In making its ruling, the Court first looked to case law relating to section 4 of the Act (the causing of fear or provocation of violence), which also cannot be committed where the words or behaviour are used by a person inside a dwelling where the affected person is also inside that or another dwelling. In Atkin v DPP (1989) 89 Cr App R 199, Henry J observed that the intention of Parliament in drafting this exception was to exclude domestic arguments from the reach of the criminal law even where those arguments would, if repeated outside the dwelling, create an offence.

The Court also reflected on the judgment of the Court of Appeal in R v Francis [2006] EWCA Crim 3323. In that case, the Court of Appeal considered the offence under section 4A of the Act (intentional harassment, alarm or distress). This is another offence that cannot be committed when the person is inside a dwelling. Giving the judgment of the Court, Moses LJ recognised that the “area where a person may indulge in the conduct prohibited by [section] 4A with impunity are … narrowly confined”; the offence can be committed in public or in private but not a structure or part of a structure which is occupied as a person’s home or other living accommodation.

Having reviewing the case law relevant to sections 4 and 4A of the Act, Lindblom LJ, giving the judgment of the Court, ruled that the exception to the offence in section 5(2) is narrowly drawn and that Parliament intended it to cover words or behaviour used by persons in domestic gardens as well as words or behaviour used by persons inside dwellings. The Court recognised that the definition of “dwelling” in section 8 of the Act must be something that can be described as a “structure” or “part of a structure”, and considered that the ordinary meaning of “structure” is something that is built or constructed. The Court held that it follows that, in some circumstances, a garden could itself be a “structure” forming an integral part of the building (a roof garden or a winter garden), and that some gardens contain “structures” (pergolas, treehouses, or gazebos). However, the Court recognised that, ordinarily, a front or back garden would not be regarded as a “structure” or “part of a structure”. Lindblom LJ continued, saying that even if a garden was physically “a structure” or part of one, it would not normally be regarded as being a structure “occupied as a person’s home or as other living accommodation” as that would usually be the part of the building in which that person resides. Finally, the Court pointed out that this understanding of “dwelling” in section 8 is consistent with the use of the words in section 5(2), according to which the offence cannot be committed by a person “inside a dwelling”. As Lindblom LJ pointed out, one would not normally use the preposition “inside” when referring to a person who was in a garden. The Court roundly rejected the argument that a back garden of a dwelling falls within the definition of “dwelling” in section 8.

When instructed in cases involving similar allegations, it will be important to consider where exactly the offence is said to have taken place. However, as this judgment makes clear, the exclusion is very tightly drawn. In most cases, where words are said or someone behaves in a way likely to cause harassment, alarm or distress in an ordinary garden of an ordinary home, this exception will not apply.

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6KBW
6KBW
26 November 2017

Weekly Digest: 27 November 2017

In this week’s Digest, the High Court held that the Magistrates’ Court possesses no power to extend the time limit to apply to state a case under s.111(2) of the Magistrates’ Court Act 1980; remitted a GMC case back to the MPT so the dishonesty test in Ivey v Genting could be applied; and observed that the uncertainty created by Brexit could be relevant to the Article 8 ECHR balancing exercise in extradition proceedings. The Court of Appeal (Civil Division) held that s.67(8) of the Regulation of Investigatory Powers Act 2000 operated to exclude the jurisdiction of the High Court.

 

Mishra v Colchester Magistrates Court [2017] EWHC 2869 (Admin)

The judgment, available here, was handed down by Lady Justice Sharp sitting in the Administrative Court on the 14.11.17

The Divisional Court held that the Magistrates’ Court does not have a discretion to extend the time to state a case for the opinion of the High Court after the time limit specified in s.111(2) of the Magistrates’ Courts Act 1980 has expired. Neither the Criminal nor the Civil Procedure Rules gave power to extend time. Further, it was not necessary to read down s.111(2) to ensure compliance with article 6 ECHR.

 

General Medical Council v Dr Kennedy Krishnan [2017] EWHC 2892 (Admin)

The judgment, available here, was handed down by HHJ Sycamore sitting in the Administrative Court on the 20.11.17.

This was an appeal by the GMC under s.40A of the Medical Act 1983 against the determination of the Medical Practitioners Tribunal that the respondent was not dishonest in his misconduct. The respondent’s case was remitted to the tribunal; the judge found himself unable to determine the issues on appeal since the tribunal had applied Ghosh instead of Ivey in determining the respondent’s dishonesty. The judge was unwilling to substitute his own judgment for that of the tribunal.

 

AB v Crown Prosecution Service [2017] EWHC 2963 (Admin)

The judgment, available here, was handed down on 24.11.17. Whipple J gave the lead judgment with which Irwin LJ agreed. 

The appellant appealed by way of case stated against his conviction for robbery contrary to s.8(1) of the Theft Act 1968. The main issue was whether the Magistrates should have acceded to the appellant’s submission of no case to answer. It was held that they should; applying the second limb of Galbraith, it was clear that there was no case on which jury properly directed could convict.

 

Kroslak v Slovakian Judicial Authority (2017), unreported

The judgment, which is currently unavailable, was handed down by William Davis J sitting in the Administrative Court on 15.11.17.

The appellant appealed against the decision of the District Judge ordering his extradition to the respondent state. It was the appellant’s position that as an EU citizen, he currently had right of residence in the UK but, if extradited, he would possibly lose that right after Brexit and this uncertainty would interfere with his article 8 ECHR right. The appeal was dismissed; there was no basis for believing that the uncertainty related to Brexit infringed the appellant’s article 8 ECHR rights.

 

R (on the application of Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868

The judgment, available here, was handed down by Lord Justice Sales sitting in the Court of Appeal (Civil Division) on 23.11.17.

This was an appeal from the decision of the Divisional Court on a preliminary issue in judicial review proceedings brought against the respondent. The issue was whether s.67(8) of the Regulation of Investigatory Powers Act 2000 operated effectively to exclude the jurisdiction of the court over determinations of the respondent tribunal. The appeal was dismissed; s.67(8) was clear in its meaning and thus operated effectively as an ouster clause.

 

R v Endris Mohammed (Birmingham Crown Court 20.11.17)

The full sentencing remarks of Gilbart J are available here.

Mr Mohammed was sentenced to a minimum term of 33 years’ imprisonment for the murder of his two children and a term of 10 years to run concurrently for the attempted murder of his wife.

 

In The News

England and Wales police record highest number of violent sexual crimes in the EU

 

Regulator calls for better scrutiny of drugs testing

 

Assisted dying bill passes Victoria’s Upper House

 

No British judge on ICJ for first time in 71-year history

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How now to spot dishonesty

What place a defendant’s state of mind following the Supreme Court decision in Ivey v Genting [2017] UKSC 67?

Until Mr Ivey challenged the refusal of the Genting Casino to pay the £7.7 million he had won at Baccarat using an edge-sorting technique that he called legitimate and they called cheating, a defendant charged with an offence of dishonesty would have had a fairly good idea how a jury considering her conduct would have decided whether it had been dishonest. Since 1982, when the locum surgeon Mr Ghosh was convicted of claiming fees for operations undertaken by others, the jury would have asked itself not only whether the conduct was dishonest by the standards of reasonable and honest people (amongst whom they would have included themselves), but whether the defendant realised that ordinary honest people would consider the behaviour to be dishonest. Since the Supreme Court concluded that Genting’s categorisation of Mr Ivey’s conduct was the correct one and took the opportunity to look again at how a jury ought to spot dishonesty, a defendant’s position on the face of it has changed. But how much?

The Supreme Court was keen to remove a defendant’s own realisation that reasonable and honest people would consider her conduct dishonest from the equation. It was concerned that this could place a defendant with a warped view of the world in a better position than one in touch with contemporary morality. However, the Court did not in the process make the actual state of mind of a defendant irrelevant. Its relevance is to the state of knowledge as to the factual context of her conduct. As Lord Hughes identified (at para.60), taking the example of a person accused of travelling on a bus without paying, if they genuinely believe that public transport is free then there is objectively nothing dishonest about not paying. Similarly (taking the facts of the pre-Ghosh decision in Feely [1973] QB 530), if an employee takes money from the till, knowing that this is not permitted but intending to pay it back the next day, the objective assessment of his conduct in terms of dishonesty will differ from another employee who takes from the till without making any attempt to repay.

Whilst it could be argued that the dishonesty issue that the Supreme Court had to resolve in Mr Ivey’s case was not the question of whether the test described by Lord Lane CJ in Ghosh [1982] QB 1053 was correct, it could equally be argued (as Lord Hughes observed at para.55) that Lord Lane had not been required to devise his two part test in order to address whether it was dishonest to claim for work others had done as Mr Ghosh had. Moreover, it would be brave to suggest that the unanimous and unequivocal rejection of the Ghosh test should not be followed. As Sir Brian Leveson observed in DPP v Patterson [2017] EWHC 2820 (Admin), “it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future” (at para. 16).

In any event, the Supreme Court has taken the opportunity to restate the test for dishonesty that has generally been applied by courts and juries, namely by reference to her state of knowledge of the factual context of her actions judged against the assessment of reasonable persons.  For example, the Crown Court Compendium [8-6] recognises that it has been “unusual” to address the second Ghosh question.  Moreover, this is an approach that juries have already been applying in all manner of other contexts, such as whether someone’s claim to be acting in self-defence was reasonable, or whether their knowledge or belief was genuine by reference to whether it was reasonable.

And so, the answer in reality and in most cases to the question of how now to spot dishonesty is much as it was before, dependent on the assessment of the jury as to whether it was dishonest in their eyes in the circumstances that the defendant was in.

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David Perry QC
Tom Williams
David Perry QC and Tom Williams
22 November 2017

Section 2 notices: here and now?

Section 2(2) and (3) of the Criminal Justice Act 1987 (‘CJA 1987’) empower the Director of the Serious Fraud Office (‘the SFO’) to give notice in writing requiring a person under investigation or any other person whom the Director has reason to believe has relevant information to (a) answer questions or furnish information (s. 2(2)); or (b) produce documents (s. 2(3)). In what is often referred as a ‘here and now’ notice, the recipient may be required to do what the SFO’s notice requires ‘forthwith’ (see R (Rawlinson and Hunter) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634, at [61]). What, in the context of a ‘here and now’ notice, does ‘forthwith’ mean?

Criminal Justice Act 1987

Section 2(2) sets out the power to compel a person to answer questions or furnish information (with emphases added):

(2) The Director may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

Section 2(3) sets out the equivalent power to compel a person to produce (a specified class of) documents:

(3) The Director may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified, any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified class which appear to him so to relate

Where a court is satisfied on the basis of information on oath that there are reasonable grounds for believing that a person has failed to comply with an obligation under s. 2(2) or (3), it has the power to issue a search warrant under s. 2(4)(a)(i). A warrant may also be issued if there are reasonable grounds to believe that it is not practicable to serve a notice under s. 2(3), or if doing so might seriously prejudice the investigation (s. 2(4)(a)(ii)-(iii)).

Furthermore, if a person fails to comply with such an obligation without reasonable excuse, he or she will be guilty of an offence under s. 2(13): the offence is punishable with six months’ imprisonment and/or an unlimited fine.

‘Forthwith’

The Oxford English Dictionary defines ‘forthwith’ as meaning ‘immediately’ or ‘without delay’. However, the Privy Council observed in the nineteenth century in R v Price (1854) PC 203, 14 ER 78 that ‘when used in an Act of Parliament’, the word ‘has been construed to mean “in a reasonable time”’, or, alternatively, ‘as soon as the party who is to perform the act “can reasonably perform it”.’ In In re Southam (1881) 19 Ch D 169, Lush LJ was clear that the word ‘has not a fixed and absolute meaning’, and Sir George Jessel MR agreed:

I think that the word “forthwith” must be construed according to the circumstances in which it is used. Where, as in Hyde v Watts, there is a covenant to insure a man’s life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done “forthwith” can be done without delay, it ought to be so done.

In R v Secretary of State for Social Services, Ex p Child Poverty Action Group [1990] 2 QB 540, the Court of Appeal (Balcombe, Woolf and Russell LJJ) considered the duty imposed on the Secretary of State for Social Services under ss. 98-99 of the Social Security Act 1975, as amended, to ensure that any claim for income support and certain other benefits was ‘submitted forthwith to an adjudication officer for determination’. The Court of Appeal found that that duty arose only when the Department of Health and Social Security had obtained the basic information to enable a claim to be determined: the Secretary of State was under no duty to have an adjudication officer available immediately to deal with the claim and a decision on the claim could be lawfully reached after the stipulated time period if it was not practicable for it to be reached earlier. Woolf LJ implicitly rejected the submission that ‘forthwith’ should simply mean ‘immediately’ (at 553D-E):

So far we have not separately considered the sense in which the word ‘forthwith’ is used in section 98(1). It can have many meanings according to the context. However, as already pointed out, none of those meanings in the present context could require the department to submit to the adjudication officer a claim form which did not provide the material needed for a determination. In the context of section 98 the presence of the word ‘forthwith’ indicates that the department is required, once that material is available, to submit the claim to the adjudicator as soon as reasonably possible. Because of the requirement to deliver the claim forthwith the department, in deciding what steps it should take in order to make the claim suitable for submission and in carrying out those steps, is under an obligation to bear in mind the need for expedition.

In s. 2(2)-(3) CJA 1987, ‘forthwith’ does not necessarily mean ‘immediately’: it is more likely to mean ‘as soon as reasonably possible’ in all the circumstances, and, in particular, without deliberate and unnecessary delay. A court determining this question would bear in mind that:

(i) the powers set out in s. 2(2)-(3) are designed for use in complex and document-heavy SFO prosecutions, where some material may inevitably take some time to locate;

(ii) if an application for a search warrant under s. 2(4) could routinely be made as soon as the SFO served ‘here and now’ notice, this would be (a) disproportionate where there has been insufficient time to comply, given the intrusive nature of a search warrant; and (b) probably ineffectual if the material is indeed difficult to locate;

(iii) it is unattractive to suggest that prima facie criminal liability arises under s. 2(13) if an immediate response is clearly impracticable, even if a person would probably have a ‘reasonable excuse’ defence in any event (the ‘reasonable excuse’ defence still has an important function if, for instance, it is not possible to provide the document at all, a circumstance anticipated by s. 2(3)(d)).

Conclusion

Although the meaning of ‘forthwith’ has not been judicially determined in the context of a ‘here and now’ notice, it is likely to mean ‘as soon as reasonably possible’. This will be a question of fact: although it may sometimes mean ‘immediately’, this will not necessarily be the case. If an immediate response is impracticable, the better view is that prima facie liability does not attach for the offence under s. 2(13); in the alternative, the person in question would be likely to have a defence of ‘reasonable excuse’. If a response has not been immediately forthcoming but it is not yet ‘reasonably possible’ to provide one, it would, for the same reason, be inappropriate for an application for a search warrant to be granted by a court under s. 2(4); and, until such an application is granted, the SFO have no right of entry simply because a ‘here and now’ notice has been served.

 

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6KBW
6KBW
19 November 2017

Weekly Digest: 20 November 2017

In this week’s Digest, the Court of Appeal quashed one of the twelve convictions of the entertainer Rolf Harris; Sir Brian Leveson P observed that the Ghosh test was unlikely to be applied again following the Supreme Court decision in Ivey v Genting; and the Divisional Court considered extradition to Russia.

 

R v Rolf Harris [2017] EWCA (Crim) 1849

The judgment, available here, was handed down on 16.11.17 by Treacy LJ, sitting in the Court of Appeal (Criminal Division).

This was a renewed application for leave to appeal against the appellant’s conviction on 12 counts of indecent assault. The applicant sought to challenge this convictions on three grounds: (i) fresh evidence undermined the credibility of witnesses (WR and TL) to such an extent that the convictions on those counts were unsafe; (ii)  the conviction on counts 10 to 12 were unsafe because of a lack of disclosure on the part of the prosecution in relation to a witness (TL); and (iii) if the convictions on any of the counts were found to be unsafe, the convictions on the remaining counts were unsafe given the judge’s directions in summing up as to cross-admissibility.  The appeal was allowed in respect of count 1 and that conviction was quashed; it was dismissed in respect of the other counts.

 

R v Fletcher [2017] EWCA (Crim) 1778

The judgment, available here, was handed down on 15.11.17 by Davis LJ sitting in the Court of Appeal (Criminal Division).

This appeal concerned the safety of a number of convictions for indecent assault on the basis of inconsistency between the jury’s verdicts. Of eight counts on the indictment, the appellant was convicted of two and contended on appeal that the jury’s verdicts on the two counts on which he was convicted were wholly inexplicable in light of their verdict in respect of the other six. The appeal was dismissed. The applicable legal principles placed an onerous burden on the appellant which had not been discharged.

 

Aline Loake v Crown Prosecution Service [2017] EWHC 2855 (Admin)

The judgment, available here, was handed down on the 16.11.17.

The issue in this appeal by way of case stated was whether the defence of insanity could be raised where the defendant was accused of harassment contrary to s. 2 of the Protection from Harassment Act 1997. It was held that insanity was available as a defence as it was in respect of all other criminal offences.

Martyn Bowyer was instructed for the Respondent.

 

Director of Public Prosecutions v Vicky Patterson [2017] EWHC 2820 (Admin)

The judgment, available here, was handed down by Sir Brian Leveson P, sitting in the Administrative Court on 2.11.17.

This was an appeal by way of case stated from a decision of the magistrates sitting in Great Yarmouth dismissing, on the basis there was no case to answer, two charges of theft brought against the respondent. The magistrates had mistreated the subjective view of the respondent on dishonesty. Although the recent remarks of the Supreme Court (Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67) on the test to be applied for dishonesty were strictly obiter, it was unlikely that R v Ghosh [1982] QB 1053 would now be favoured over Ivey and Ivey represented the law. It was clear that there was a case to answer.

 

Zarmaev v The Government of the Russian Federation [2017] EWHC 2705 (Admin)

The judgment, available here, was handed down by Hickinbottom LJ sitting in the Administrative Court on 02.11.17.

This was an appeal under s. 103 of the Extradition Act 2003 against the decision to send the appellant’s case to the Secretary of State for her decision on whether the appellant should be extradited to the Russian Federation. The appellant adduced fresh evidence to the effect that extradition for trial in Russia would effectively deprive him of his right to a fair trial under art. 6 ECHR. The fresh evidence was admitted and the appellant’s case was remitted to the magistrates’ court for determination of whether extradition would be compatible with art. 3 and art. 6 of the ECHR.

 

R (on the application of Michael Goldsworthy) v Secretary of State for Justice [2017] EWHC 2822 (Admin)

The judgment, available here, was handed down by Dinah Rose QC, sitting as a Deputy High Court Judge in the Administrative Court on 13.11.17.

The claimant sought to challenge the defendant’s decision to recall him to prison on the basis that it was disproportionate and unreasonable and, consequently, his detention was unlawful at common law and under Article 5 of the ECHR. The claim succeeded. The decision could not be rationally sustained because it failed to take account of obviously relevant considerations and failed properly to apply the defendant’s own policy guidance regarding when a decision should be made to recall an offender to prison.

 

In the news 

Lord Hutchinson of Lullington obituary

 

UK calls for ‘greater clarity’ on ICC’s new crime of aggression

  

Serious Fraud Office charges two Unaoil executives with bribery

 

Calls for radical reform of Scottish system for rape prosecutions

 

Tagging scheme hit by fresh delays

 

 

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Rosemary Davidson
Rosemary Davidson
15 November 2017

Co-operating after Brexit — what’s the future for security, law enforcement and criminal justice?

The Government’s paper ‘Security, law enforcement and criminal justice: a future partnership paper’ suggests that the intention is to maintain a similar level of co-operation with the EU following Brexit. However, issues such as data protection, jurisdiction and the fact that such ‘co-operation’ with a non-Member State would be unchartered territory for the EU, mean that achieving this will be far from straightforward.

 

What is the potential impact of Brexit on cross-jurisdictional crime investigation and enforcement?

Brexit is likely to have a huge impact on all areas of cross-jurisdictional crime investigation and enforcement within the European Union. In particular, it is unclear whether a post-Brexit UK will be able to continue to:

  1. participate in key EU criminal justice co-operation measures, such as the European Arrest Warrant (EAW) and the European Investigation Order (EIO);
  2. access EU criminal justice databases, such as the Schengen Information System, the European Criminal Records Information System (ECRIS, and data shared under the Prüm agreements; or
  3. play a role in institutions such as Europol and the Eurojust.

 

What does this new report tell us about the Government’s priorities on criminal justice and enforcement during the Brexit negotiations?

Although this paper is light on detail, references such as ‘avoiding operational gaps’ and the ‘opportunity to build on what has already been achieved through decades of collaboration’ suggest that the Government will be seeking to replicate the current arrangements as closely as possible.

In the paper, the Government emphasises three areas in particular as important:

  1. data sharing
  2. practical operational co-operation; and
  3. co-operation through agencies

This reflects the three main areas of EU criminal justice co-operation. Data-sharing includes access to the EU’s criminal justice databases, such as those already referred to. ‘Operational cooperation’ is a reference to arrangements such as the EIO (which the paper expressly refers to), and also the EAW and other EU mutual legal assistance measures. ‘Cooperation through agencies’ is a reference to institutions such as Europol and Eurojust. The paper makes particular reference to Joint Investigation Teams (through which EU states can jointly investigate cross-border criminal activity), a facility that the UK currently makes heavy use of.

The paper states that the UK will be seeking an UK-EU Treaty that ‘provides a comprehensive framework for future security, law enforcement and criminal justice cooperation between the UK and the EU’ although there is no detail about what, in practice, this might look like.

 

What are the main areas of challenge in securing agreement with the EU in this area?

The main hurdle is that, to date, the close levels of criminal justice co-operation that take place within the EU have been limited to Member States; there is no precedent for a so-called ‘Third State’ (ie a non-EU state) to have the type of co-operation relationship with the EU that is being proposed by the UK. While the UK is in a unique position as a (soon to be) former member of the EU, it is far from clear that the EU will be willing to continue its current co-operation arrangements once Brexit is complete.

A second problem is that the Government has identified ending the jurisdiction of the CJEU in relation to the UK as one of its ‘red lines’ in the Brexit negotiations. This is likely to be a significant hurdle in the context of criminal justice co-operation, where having a mechanism to ensure consistent application of any UK-EU agreement will be key to ensuring its effectiveness. Although the Government paper refers to the need to find a mechanism for dispute resolution, it is currently unclear whether the EU would be willing to enter into the type of close co-operation relationship being proposed by the UK without oversight by the CJEU.

A further area of difficulty is data protection. The UK’s ability to continue to share data with the EU is likely to depend on its continuing ability to conform to EU data protection requirements. This could mean that the UK would be required to implement EU data protection rules even after it has left the EU, and in circumstances where it has no influence over their content.

 

What are the key areas of concern for corporate crime lawyers?

Given the number of difficulties identified above, there is a real risk that, following Brexit, the UK will have a far less effective co-operation relationship with the EU than that which is currently enjoys.

First, the UK may have to revert to reliance on the older conventions and agreements, such as the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters. These are not based on the EU model of mutual recognition, and are slower and less effective than the current EU measures.

Second, the UK may lose some or all of its access to the EU’s criminal justice databases, and/or be required to continue to apply EU data-protection laws even after the UK has exited the European Union.

Third, it is likely that the UK will no longer play a leading role in institutions such as Europol and Eurojust, which will decrease the level of influence that the UK is able to exert in relation to EU criminal justice policy. This may lead to a divergence in approach, for example in relation to issues such as bulk data collection and data protection rules in the area of criminal justice.

Finally, it is worth noting that the Brexit negotiations are unlikely to be finished by the end of the Article 50 negotiating period in March 2019. This means that there will almost certainly be a transitional period during which the current arrangements will continue to apply.

This article was first published on Lexis®PSL Corporate Crime on 3 October 2017. 

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6KBW
6KBW
13 November 2017

Weekly Digest: 13 November 2017

In this Weekly Digest, the Court of Appeal considered jury directions in two cases, one relating to a conviction for gross negligence manslaughter, the other to directions and summations that were found to be overtly favourable to prosecution witnesses. There are also two sets of interesting first instance sentencing remarks, one relating to the murder of a child and the other to a complex tax fraud scheme.

R Mohammed Khaique Zaman [2017] EWCA Crim 1783

The judgment, available here, was handed down by Hickinbottom LJ sitting in the Court of Appeal on 08.11.17.

The appellant was convicted of gross negligence manslaughter. He appealed against his conviction and sentence primarily on two grounds: the judge had misdirected the jury in relation to (i) breach of duty and (ii) causation. The appeal was dismissed; the judge’s directions were found to be good in law and thus the conviction safe; the sentence was not found to be manifestly excessive.

 

R Travis Green [2017] EWCA Crim 1774

The judgment, available here, was handed down by McCombe LJ sitting in the Court of Appeal on 07.11.17.

This was an appeal against the defendant’s conviction for an offence of indecent assault contrary to s.14(1) of the Sexual Offences Act 1956. The appeal was brought on three grounds; two concerned the judge’s directions to the jury and the third concerned the circumstances under which the jury reached their verdict. The appeal was allowed and the conviction quashed; the Crown’s application for a retrial was refused.

 

Krzysztof Bialon Regional Court of Bielsko-Biala, Poland [2017] EWHC 2766 (Admin)

Judgment, available here, was handed down by Mr Justice Dingemans sitting in the High Court (Administrative Division) on 08.11.17.

This was an appeal against an order for the extradition of the appellant. The appellant contended extradition should not be ordered because extradition would infringe his and his children’s Article 8 rights. The appeal was dismissed; the children’s rights had been given proper consideration and the judge was not wrong in the first instance to order surrender.

 

Radka Sesinova District Court in Most, Czech Republic [2017] EWHC 2755 (Admin)

Judgment, available here, was handed down by Sir Wyn Williams sitting in in the High Court on 07.11.17.

This was an appeal against the decision of District Judge Snow that the appellant should be extradited to the Czech Republic pursuant to an EAW. On appeal, the appellant contended that the EAW did not comply with s.2 of the Extradition Act 2003, which lays out certain formal requirements of an EAW. The appeal was dismissed as the EAW was found to comply with the s.2 requirements, as it was permissible that an earlier EAW be used to provide the particulars of the offence.

 

R Matthew Scully-Hicks, Cardiff Crown Court, 07.11.17, Sentencing Remarks of Mrs Justice Nicola Davies DBE

Matthew Scully-Hicks was sentenced to 18 years’ imprisonment for the murder of his adoptive daughter Elsie.

The full remarks are available here.

 

R Michael Richards and ors, Southwark Crown Court, 10.11.17, Sentencing Remarks of Mr Justice Edis

The five defendants in this case, after a lengthy trial  were convicted of conspiracy to cheat the Revenue. Three of the five were further convicted of a further substantive offence of cheating the Revenue.

The full remarks are available here.

 

In the news

UK prosecutors destroy Assange emails

 

Family of autistic woman killed in traffic accident demand coroner’s replacement

 

Facial recognition cameras used at Remembrance Sunday Service

 

ICJ could be without British judge for the first time since 1946

 

 

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A relativist approach to prison conditions in extradition cases?

The High Court has recently suggested, in Serra v Paraguay [2017] EWHC 2300 (Admin), that there could be a different approach to the assessment of prison conditions in requesting states in extradition cases.  This “relativist approach” would involve an assessment based on the norms of that particular state.

The violation of the right to freedom from torture and inhuman and degrading treatment, due to prison conditions in a requesting state, is commonly raised as a bar to extradition.  A decision of the ECtHR, in Muršić v Croatia (App. No. 7334/13), held that unless a prisoner has three square metres of personal space there is a strong presumption that his conditions of detention would violate Article 3.  The decision has been applied to domestic extradition cases (Owda v Greece [2017] EWHC 1174 (Admin) and Grecu v Romania [2017] EWHC 1427 (Admin)) whereby, on the evidence, three square metres of personal space was required in order to comply with Article 3 and, absent that, an assurance confirming compliance was necessary.

However, this approach appeared to be doubted by Burnett LJ, sitting in the Divisional Court with Sir Wyn Williams, in Serra.  This case concerned an extradition request from Paraguay.  At paragraph 16, the Court approached the case, as agreed by the parties, on the basis that if the requested person could establish that there were substantial grounds for believing that there was a real risk that they would be detained in a cell with less than three square metres of person space, as defined in Muršić, their extradition would be prohibited, unless limited exceptions applied.

However, the Court refused to confirm whether this approach was correct.  They observed, at paragraph 17, as follows:

  1. Muršić involved an application from a serving prisoner rather than a requested person.
  2. Courts of many countries whose prison conditions have been found to violate Article 3 by the ECtHR have been able to detain prisoners on remand and those sentenced to periods of imprisonment while they seek to improve conditions, even though there is a real risk that those prisoners would be subject to inhuman and degrading treatment.
  3. There does not appear to be any decisions of the ECtHR dealing with the question of personal space in the context of extradition.
  4. It might be thought anomalous that a fugitive from justice in a state which is a signatory to the ECHR apprehended in his own country would be returned to prison but the same person who manages to cross the border into another ECHR state would escape return unless assurances were in place.
  5. The same could be said for the extradition of a person from an ECHR state to a non-ECHR country where conditions may satisfy the International Committee for the Red Cross standards but do not meet the standards in Muršić.

It has previously been suggested by Lord Hoffman, in R (Wellington) v Sectretary of State for the Home Department [2008] UKHL 72, that a relativist approach to the scope of Article 3 was essential if extradition was to continue to function (at paragraph 27) and that following R (Ullah) v Special Adjudicator [2004] 2 AC 323 reliance on Article 3 demands presentation of “a very strong case” (per Lord Bingham at paragraph 24).

The remarks of Burnett LJ are obiter, however it is likely that the issue will be addressed in other extradition cases and ultimately by the ECtHR.  This could lead to a more flexible approach to prison conditions in extradition cases and make it (even more) challenging for requested persons to resist surrender in reliance on Article 3.

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6KBW
6KBW
6 November 2017

Weekly Digest: 6 November 2017

In this week’s Digest, the Supreme Court considered the obligation to provide rehabilitation during extended sentences and the Court of Appeal considered whether nitrous oxide is an ‘exempted substance’ for the purposes of the new Psychoactive Substances Act 2016.

Brown v The Parole Board for Scotland [2017] UKSC 69

Judgment handed down by Lord Reed in the Supreme Court on 1.11.17.

Concerning the issue of whether the under Article 5 of the European Convention on Human Rights to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. Appeal dismissed, as the appellant had various opportunities for rehabilitation. The Supreme Court took the opportunity to align domestic law’s interpretation of article 5 with the interpretation of the European Court of Human Rights.

Littlewoods Ltd v Revenue and Customs Commissioners [2017] UKSC 70

Judgment handed down by Lord Reed and Lord Hodge in the Supreme Court on 1.11.17.

Concerning the issue of whether a common law claim for compound interest was excluded by sections 78 and 80 of the Value Added Tax Act 1994. If the appellant’s claim for compound interest was so excluded, whether this was contrary to EU law. Appeal dismissed and HMRC’s cross appeal allowed. The scheme created by section 78 was held to be inconsistent with the availability of concurrent common law claims to interest. In relation to the cross appeal, the CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the principal sum.

 

Michalak v General Medical Council [2017] UKSC 71

Judgment handed down by Lord Kerr in the Supreme Court on 1.11.17.

Concerning the issue of whether the availability of judicial review proceedings in respect of decisions or actions of the GMC could properly be described as proceedings ‘in the nature of an appeal’ and, on that account, the jurisdiction of the Employment Tribunal is excluded by section 120(7) of the 2010 Act. Appeal dismissed. Judicial review is not in the nature of an appeal. Nor is it a remedy provided by reason of an enactment.

 

R (on the application of C) v Secretary of State for Work and Pensions [2017] UKSC 72

Judgment handed down by Baroness Hale PSC in the Supreme Court on 1.11.17.

Concerning the issue of whether certain policies adopted by the Department of Work and Pensions (DWP) in the administration of the welfare benefits system are, when applied to people with a reassigned gender, in breach of the Gender Recognition Act 2004 (‘the GRA’), the Human Rights Act 1998 (‘the HRA’) or the Equality Act 2010 (‘the EA’). Appeal dismissed. The policies complied with each statute.

 

R v Chapman [2017] EWCA Crim 1743

Judgment handed down by Lord Burnett CJ in the Court of Appeal (Criminal Division) on 1.11.17.

Concerning the issue of whether nitrous oxide is an ‘exempted substance’ for the purposes of the Psychoactive Substances Act 2016 because it is a ‘medicinal product’ within the meaning of that term as defined by the Human Medicines Regulations 2012 (S.I. 2012/1916). Appeals dismissed. The substance in question in the circumstances was intended for recreational, rather than medical, use.

Louis Mably QC appeared on behalf of the Crown

R v Lewis [2017] EWCA Crim 1734

Judgment handed down by Davis LJ in the Court of Appeal (Criminal Division) on 1.11.17.

Concerning the issue of whether the trial judge’s ruling that there was no case for the defendants to answer was a ruling that it was not reasonable for the judge to have made within the meaning of section 67 of the Criminal Justice Act 2003. Appeal dismissed. The evidence was insufficient for the case to pass half time.

Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757

Judgment handed down by Singh LJ in the Court of Appeal (Civil Division) on 3.11.17.

Concerning the issue of whether the First-tier Tribunal and the Upper Tribunal had erred in law in finding that there was ‘family life’ or ‘private life’ for the purposes of article 8 of the European Convention on Human Rights between an adult and her brother, who lived in the UK. Appeal allowed. The term ‘family life’ did not encompass the relationship between the appellant and her brother.

Wright v Reading Crown Court [2017] EWHC 2643 (Admin)

Judgment handed down by Goose J in the Administrative Court on 31.10.17.

Concerning the issue of whether a person could commit an offence contrary to section 8(1)(h) of the Animal Welfare Act 2006 if he or she ‘kept or trained’ an animal for use in connection with animal fighting through an agent. Application refused. An individual could commit the offence if he or she retained control of the animal while it was elsewhere.

Marwaha v UK Border Agency (Cash and Compensation Team) [2017] EWHC 2321 (Admin)

Judgment handed down by Charles J in the Administrative Court on 2.11.17.

Concerning the issue of whether poppy heads and poppy stalks imported by the appellant for use in flower arrangements fell within the definition of ‘poppy straw’ in the Misuse of Drugs Act 1971. Appeal allowed. The Administrative Court held that the poppy heads were not mown for the purposes of the statutory definition.

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