6KBW Blog

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 Weekly 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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Cryptocurrency and restraint: police permitted to convert seized Bitcoins

The Crown Court has granted a novel application by the police in restraint proceedings to convert seized Bitcoins into sterling.

R v Teresko (Sergejs)

Kingston Crown Court: HHJ Lodder QC, 11 October 2017, unreported.

Surrey police searched the home address of the defendant who was subsequently convicted of drugs and money-laundering offences. A piece of paper was found containing a bitcoin recovery phrase, which enabled police to seize 295 bitcoin worth £975,000. Confiscation was outstanding. An application was made by the CPS for a restraint order over the defendant’s assets under s41 Proceeds of Crime Act 2002, including an application under s41(7) for an order permitting the police to ‘convert’ the 295 bitcoin into sterling, owing to the volatility of bitcoins, and their vulnerability to attack, even when held in a dedicated police bitcoin wallet. It was accepted that this was an entirely novel application. Evidence was adduced of two alternative methods for conversion of bitcoin: public auction, a method successfully used in the United States, and an bitcoin exchange, used by the Dutch police for over 5 years and subject to due diligence by UK law enforcement.

Held, the application was granted. The Court was satisfied that the power to make such an order was available under s41(7) POCA, and that it was appropriate to make the order. The appropriate means of conversion was the approved bitcoin exchange. The fees for undertaking the conversion were lower than those at public auction, and the effectiveness of using a bitcoin exchange had been established.

Commentary

Bitcoin and other cryptocurrency are widely used by lone criminals and organized crime groups to launder their proceeds, but law enforcement and the courts are only just beginning to consider the adequacy of existing powers. In the present case, the prosecutor was able to point to the wide power under s41(7) POCA which enables a court to make “…such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective”. Long before the POCA legislation, the courts had recognized that they had a power to make ancillary orders in connection with restraint orders, in the same way that they did in connection with civil freezing orders (Re O [1991] 2 QB 520, applying AJ Behkor v Bilton [1981] 2 All.E.R. 565). Novelty has not been bar to the courts developing new types of ancillary orders in the civil context (Bayer v Winter [1986] 1 WLR 497, order requiring the surrender of a passport) and the need for flexibility to deal with “new situations” has been again reiterated by the Court of Appeal (JSC BTA Bank v Ablyazov [2014] 1 WLR 1414, overturned on other grounds). Nor is it an objection in principle that unlike most ancillary orders, the order in this case was not against the defendant (such as disclosure, repatriation) but was in favour of a third party, the police; there is precedent for ancillary orders being directed at third parties (as in (Re D (Restraint Order: Non Party), The Times, 26 January 1995, requiring disclosure by a non-defendant). Aside from objecting to the overall novelty of the situation, it could have been said that the police were not properly qualified to carry out a transaction of this nature and that a receiver was better placed to perform it. In the present case the CPS adduced evidence that considerable thought had been given to the best means of effecting conversion to sterling. The fact that a (costly) receiver might have been appointed did not mean that such an order was not permissible. Alternatively it might have been said that the value of bitcoin was bound to go up further (as it had since the original seizure) and therefore that the defendant would lose out. This argument had less force in a post-conviction case where the defendant, facing confiscation proceedings in which the assumptions would apply, was unlikely to retain any part of these assets, whatever happened to the value of bitcoin in the interim.

A further interesting aspect of this case, which was not an issue for the Crown Court, is the original seizure of the BitCoin by Surrey Police: this will be the subject of a further blogpost.

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Alex Du Sautoy
Alex Du Sautoy
27 October 2017

Landmark Supreme Court dishonesty ruling

The Supreme Court has overturned the long-standing Ghosh test for establishing dishonesty in criminal proceedings.

Case summary: Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

Background

The Appellant, Mr Ivey was a professional gambler who wished to sue the respondent company, an owner of casinos. In August 2012, Mr Ivey had deployed a technique called ‘edge-sorting’ when playing Punto Banco (a type of Baccarat) at one of the Respondent’s casinos. It was common ground that the technique had improved the Appellant’s chances and he had won £7.7 million over the course of a number of days. The casino declined to pay Mr Ivey the winnings, claiming that ‘edge sorting’ amounted to cheating. Mr Ivey’s claim was that it was not cheating but a legitimate technique.

It was uncontroversial throughout litigation that it was an implied term of the contract for betting between the parties that neither of them would cheat. To the extent Mr Ivey had cheated, he would have been in breach of that implied term and unable to recover his “winnings”.

At first instance, Irwin J found that Mr Ivey was a professional gambler who described himself as an “advantage player”, viz. one who, by a variety of techniques, sets out to reverse the advantage held by the house and to play at odds which favour him. The judge accepted that he was genuinely convinced that what he did was not cheating. The question arising, however, was not whether Mr Ivey thought of it as cheating, but whether it was as a matter of fact and law. The judge concluded that it was, and so did the majority of the Court of Appeal.

Judgment

Lord Hughes gave the unanimous judgment of the Court. It was found that the definition of cheating must be the same for the implied term as for section 42 of the Gaming Act 2005, which makes cheating at gambling an offence. The Supreme Court observed that certain forms of cheating do not involve dishonesty, just as certain forms of deception do not constitute cheating. The Court found that the judge’s conclusion, that Mr Ivey’s actions amounted to cheating, was unassailable, and that it was not necessary to make an additional finding on whether the conduct of Mr Ivey amounted to deception. Nonetheless, the Supreme Court went on to consider whether, if dishonesty were an essential element, such an additional element would be satisfied in this case.

Dishonesty test

The Supreme Court considered the leading authority of R v Ghosh [1982] QB 1053, and the directions to juries which have been derived from that case in determining whether there has been ‘dishonesty’ for the purpose of any offence, namely that a jury is to apply a two stage test:

  1. Was the conduct complained of dishonest by the standards of reasonable and honest people?
  2. If so, did the defendant realise that ordinary honest people would consider his behaviour to be dishonest?

The Supreme Court identified six problems with the second limb of the Ghosh test in particular:

  1. The more warped the defendant’s standards of dishonesty, the less likely it is that he will be convicted of dishonest behaviour. As it was put in Smith’s Law of Theft 9th ed (2007), para 2.296: “…the second limb allows the accused to escape liability where he has made a mistake of fact as to the contemporary standards of honesty. But why should that be an excuse?”
  2. The test is not necessary to preserve the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant. Innocent mistakes, such as genuinely believing that all public transport is free, are already covered by the first limb. In determining the honesty or otherwise of a person’s conduct, one must ask what the defendant knew or believed about the facts affecting the area of activity in which he was engaging.
  3. It is a test that jurors and others often find puzzling and difficult to apply.
  4. It has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test for dishonesty in civil proceedings.
  5. It represented a significant departure from law before the Theft Act 1968, when there is no indication that such a change was intended.
  6. The decision was not compelled by authority. The better view of the pre-Ghosh cases is that the preponderance of authority favoured the simpler rule that, once the defendant’s state of knowledge and belief has been established, whether that state of mind was dishonest or not is to be determined by the application of the standards of the ordinary honest person.

The Supreme Court concluded that these considerations provide convincing grounds for holding that the second leg of the test does not correctly represent the law, and that directions based upon it ought no longer to be given. They held that the correct test of dishonesty is that set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 and by Lord Hoffmann in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37. The test to be applied by a jury in determining dishonesty should therefore be as follows:

  1. To ascertain the actual state of the defendant’s knowledge or belief as to the facts.
  2. Determine whether the conduct was honest or dishonest by applying the standards of ordinary decent people.

There is no requirement that the defendant must appreciate that what he has done is, by the standards of ordinary decent people, dishonest. If dishonesty were an additional legal element in cheating at gambling, the Supreme Court concluded, it would in this case have been satisfied by the application of this new test.

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Glorification of terrorism

How does the law criminalise words or actions seeking to glorify acts of terrorism?

Four terrorist attacks in less than three months has led to renewed questions about the adequacy of the United Kingdom’s counter terrorism laws, not least in the light of what is known about one of the London Bridge attackers, Khuram Butt. Mr. Butt appeared in the Channel 4 documentary ‘The Jihadis next door’ in January 2016. He was shown unfurling an ISIS flag in a London park. Furthermore, he was reported to the police counter-terrorism hotline in 2013 after a confrontation with the Chief Executive of the Ramadhan Foundation outside the Houses of Parliament the day after the killing of Fusilier Lee Rigby. He described the Chief Executive as a traitor to Islam for his condemnation of the killing. This has led a number of commentators to question whether these acts, characterised as ‘glorification of terrorism’, should be made unlawful as part of a broadening of the canon of counter-terrorism law. As put on BBC Radio 4’s Today programme, “why can someone’s words not be criminalised if they glorify acts of terrorism?”

“Why can someone’s words not be criminalised if they glorify acts of terrorism?”

The spectrum of offences created by the Terrorism Acts of 2000 and 2006 is extremely broad. The definition of terrorism contained in section 1 of TACT 2000 and, therefore, the fundamental basis on which all such offence creating provisions are based, could hardly be wider. Any action or threat of action involving serious violence against people, serious damage to property, serious risks to health and safety or serious interference with an electronic system is caught by the definition so long as the relevant conduct is designed to influence a government or intimidate a section of the public anywhere in the world and is done for the purpose of advancing a political, religious, ideological or racial cause.

A moment’s thought will demonstrate that this has the potential to catch a huge range of conduct. Clearly, the religiously inspired killings by ISIS operatives fall within the compass of the Act. Perhaps more controversially (as observed by the Supreme Court in R v Gul [2013] UKSC 64; [2014] AC 1260), a literal reading of the definition would include the use of armed force by the British Army with the aim of bringing down a foreign government, even where that armed force was sanctioned by the UK government. Thus the exercise of prosecutorial discretion about when to initiate proceedings becomes paramount.

The Terrorism Acts do, in fact, contain a number of offences with which Khuram Butt may have been charged if one assumes that his conduct did, indeed, amount to the glorification of terrorism. Some require a direct link between the conduct and a proscribed terrorist organisation. These include membership of a proscribed organisation (section 11 of TACT 2000), supporting a proscribed organisation (section 12 of TACT 2000) and wearing a uniform associated with a proscribed organisation (section 13 of TACT 2000).

Others, however, require no such link. Section 1 of TACT 2006 deals specifically with the direct or indirect encouragement of terrorism (subject to the same broad definition) by a person publishing a statement. Indirectly encouraging acts of terrorism includes the glorification of such acts, whether those acts are in the past, the future or referred to in general terms. Both ‘publishing’ and ‘statement’ are defined in the broadest possible terms, the latter referring to a communication of any description. Section 2 of TACT 2006 deals with the dissemination of terrorist publications, in similar terms and, on one view, with even less active input required from the offender. Simply forwarding an email with an attachment containing material glorifying terrorist acts will suffice.

The limiting factors in relation to glorification in both these offences is that the glorification must be capable of bearing a reasonable inference by the recipient that the conduct glorified should be emulated. Furthermore, the offender must intend or be reckless that his conduct will encourage acts of terrorism. Thus a hypothetical scenario in which a person glorified a terrorist act to a committed anti-jihadist recipient would be unlikely, on the face of it, to fulfil the elements of the offence. It is likely that the person’s intention would be to demonstrate their own bona fides as an extremist rather than to encourage the recipient to commit acts of terrorism.

The person may also have hoped that third-party onlookers watching the glorification in real time, or via a recording of the incident, would be encouraged to adopt a more aggressive stance in their dealings with non-extremist members of society. Such a stance could normalise or subtly encourage hostility, which at its worst might take the form of violence. But that is also unlikely to amount to an offence. The UK has not adopted the German model of criminalising symbols or “means of propaganda” which might further the aims of national socialism. It remains to be seen if the UK decides to adopt a model that targets any activity that, however indirectly, furthers the aims of extremism.

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6KBW
6KBW
23 October 2017

Weekly Digest: 23 October 2017

In this Weekly Digest, the Supreme Court gave judgment in three cases on whether diplomats are immune from claims for their employees, the radical cleric Anjem Choudary was refused application to appeal his conviction, and the Court of Appeal considered costs in private prosecutions.

In the matter of an application by Jason Loughlin for Judicial Review (Northern Ireland) [2017] UKSC 63

Judgment (available here) handed down by Lord Kerr in the Supreme Court on 18 October 2017

This appeal arose out of judicial review proceedings commenced in Ireland. The question for the court concerned the circumstances in which sentences, which had been passed on offenders who had assisted the authorities, should be referred back to the sentencing court under s. 74 of the Serious Organised Crime and Police Act 2005.

 

Benkharbouche  v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellant) v Janah (Respondent) [2017] UKSC 62

Judgment (available here) handed down by Lord Sumption in the Supreme Court on 18 October 2017.

This appeal concerned whether Libya and Sudan were entitled to rely on the State Immunity Act 1978 in the actions brought by the respondents for breach of contract and EU rights; the appeal was unanimously dismissed – Libya and Sudan were not entitled to rely on that provision

 

Reyes v. Al-Malki and another [2017] UKSC 61

Judgment (available here) handed down by Lords Sumption and Wilson in the Supreme Court on 18 October 2017.

This appeal concerned whether the Vienna Convention on Diplomatic Relations 1961 applied to the respondents to give them diplomatic immunity such that the Employment Tribunal did not have jurisdiction to determine the appellant’s claim. The respondents had cross-appealed on the grounds they had not been validly served with the claim form; the appeal was allowed, the respondents did not have diplomatic immunity, and the cross-appeal dismissed.

 

Armes v. Nottinghamshire County Council [2017] UKSC 60

Judgment (available here) handed down by Lord Reed in the Supreme Court on 18 October 2017.

This appeal raised the question of whether a local authority could be liable, either on the grounds of (a) breach of a non-delegable duty or (b) vicarious liability, for the abuse that a foster child had suffered at the hands of foster parents; the appeal was allowed by a majority of 4 – 1 (Lord Hughes dissenting) on the basis of vicarious liability.

 

Anjem Choudary and Mohamed Mizanur Rahman v. Regina [2017] EWCA Crim 1606

Judgment (available here) handed down by Sharp LJ in the Court of Appeal (Criminal Division) on 19 October 2017. Alison Morgan and Ben Lloyd appeared for the Crown. 

These proceedings concerned renewed applications for permission to appeal against convictions for offences contrary to s. 12(1) of the Terrorism Act 2000; the application was unanimously refused as there were no grounds on which the convictions could be considered unsafe. The judgement is complex.

 

R (R) v. The National Police Chief’s Council and another [2017] EWHC 2586 (Admin)

Judgment (available here) handed down by Green J in the High Court on 17 October 2017.

These judicial review proceedings concerned whether the disclosure to and use of information by the police, which was held on and retrievable from police records, interfered with the claimant’s article 8 rights; the claim succeeded.

 

Kalah Liban v. Secretary of State from the Home Department [2017] EWHC 2551 (Admin)

Judgment (available here) handed down by Laing J in the High Court on 18 October 2017.

This decision relates substantively to a challenge to the defendant’s refusal to (i) accept the claimant’s representations regarding a fresh claim and (ii) revoke a deportation order made in November 2012. Permission to apply for judicial review was granted in respect of (i), but was refused in respect of (ii).

 

Alisson Soares Pimenta v. Government of The Republic of Brazil [2017] EWHC 2588 (Admin)

Judgment (available here) handed down by Hamblen LJ in the High Court on 19 October 2017.

This is the appeal against a decision of the Deputy Senior District Judge to refer the appellant’s case to the Secretary of State to consider his extradition; the decision was challenged on the grounds extradition was incompatible with his rights under Article 3 and/or Article 6 of the ECHR; the appeal was dismissed.

 

Home Office consultation: Offensive and dangerous weapons new legislation

On 14 October 2017 the government published a consultation relating to legislative proposals on offensive and dangerous weapons. The consultation can be found here.

 

Other news

Cherif Bassiouni dies (22 October 2017)

Russia puts British Putin critic on Interpol wanted list (21 October 2017)

#metoo raises awareness (21 October 2017)

Victoria votes to approve voluntary euthanasia bill (20 October 2017)

Does Trump’s ownership of hotels violate the constitution? (19 October 2017)

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Case report: SFO v ENRC [2017] EWHC 1017

Said to be the first reported case in which the Court considered a claim for litigation privilege against the background of potential criminal litigation, this case is essential reading for those involved in the conduct of internal corporate investigations or in prosecuting or defending serious fraud.

The SFO sought a declaration that documents generated during investigations by solicitors and forensic accountants were not subject to legal professional privilege. This claim was against the background of an ongoing criminal investigation by the SFO into the activities of ENRC, focussing on allegations of fraud, bribery and corruption in two foreign jurisdictions. As part of the investigation, the SFO exercised its section 2 powers to compel the production of a number of documents generated before the SFO formally began its investigation.  ENRC claimed that the disputed documents were subject to litigation privilege, legal advice privilege, or both. The disputed documents fell into four categories and included notes taken by their solicitors of evidence given in the course of internal investigations by individuals (including employees and former employees; officers of ENRC and its subsidiaries; suppliers; and other third parties), as well as material generated by forensic accountants instructed by ENRC to identify controls and systems weaknesses and potential improvements.

The full scope of the case is too broad to be addressed in a single article, but two points of clear importance can be addressed. First, litigation privilege is not engaged simply by an active or anticipated criminal investigation. Secondly, the collation of information or statements from employees within a client company has no special protection and is generally not protected by legal advice privilege.

Litigation privilege is not engaged simply by an active or anticipated criminal investigation

Litigation privilege

The Court rejected the proposition that an investigation by the SFO should be treated as adversarial litigation.  Such an investigation is a preliminary step taken prior to any decision to prosecute. The policy that justifies litigation privilege does not extend to enabling a party to protect itself from having to disclose documents to an investigator. Documents that are generated at a time when there is no more than a general apprehension of future litigation cannot be protected by litigation privilege just because an investigation is imminent. The question whether the person anticipating a criminal investigation also contemplates that prosecution is likely to follow the investigation must be considered on a case by case basis. In particular, in respect of investigations conducted in the course of, or with a view to, self reporting, such investigations, almost by definition, are unlikely to be protected by litigation privilege because their dominant purpose is to avoid litigation, rather than to conduct it.

Legal advice privilege

The Court considered whether communications between lawyers and employees of the instructing corporation are covered by legal advice privilege. It held that in order to warrant protection the communication with the lawyer must be to or from a person who is authorised to seek and receive legal advice on behalf of the corporation, and the communication must be for the purposes of, or in the course of, that person giving or receiving legal advice.  Therefore, communication concerned with the preparatory work of compiling information from employees for the purpose of allowing the corporate client to receive such advice is not covered by legal advice privilege.

Practical application

The case is a further example of the trend towards a narrow definition of privilege.  Parties engaged in internal investigations, and particularly in the context of self-reporting, must be aware that the fruits of their own investigations are likely to come into the hands of the prosecuting agency.  Advisors must therefore ensure that their clients are fully aware of the ramifications of beginning such an investigation.

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16 October 2017

Weekly Digest: 16 October 2017

In this Weekly Digest, the Court of Appeal quashed a conviction on the grounds that the jury had access to transcripts of oral evidence which they should not have, and the High Court quashed guidance and policy designed to protect the most vulnerable immigrants from detention.

R v. The Crown [2017] EWCA Crim 1487

Judgment (available here) handed down by Simon LJ in the Court of Appeal (Criminal Division) on 9 October 2017.

An appeal concerning the impact on the jury of transcripts they obtained without the court’s notice or permission; the appeal was allowed, the convictions quashed, and a re-trial ordered.

 

Medical Justice and ors v. Secretary of State for the Home Department [2017] EWHC 2461 (Admin)

Judgment (available here) handed down by Ouseley J in the High Court on 10 October 2017.

These judicial review proceedings were brought in respect of statutory guidance and policies relating to the detention in immigration proceedings of those who are more vulnerable to harm. It concerns the definition of torture in various guidelines. Aspects of these guidelines concerning torture were found to be unlawful.

 

General Medical Council v. Dr Robert Stone [2017] EWHC 2534 (Admin)

Judgment (available here) handed down by Jay J in the High Court on 13 October 2017.

The General Medical Council appealed against the Medical Practitioners Tribunal’s decision to impose a sanction of suspension rather erasure on the respondent; the appeal was allowed.

 

Reka Tapster v. Nursing and Midwifery Council [2017] EWHC 2544 (Admin)

Judgment (available here) handed down by Andrews J in the High Court on 13 October 2017.

This case raises a number of interesting procedural points in the context of a statutory appeal from the determination of the Conduct and Competence Committee

 

AS (Iran) v. The Secretary of State for the Home Department [2017] EWCA Civ 1539

Judgment (available here) handed down by Irwin LJ in the Court of Appeal (Civil Division) on 12 October 2017.

This was an appeal concerning the refusal of the appellant’s claims for asylum and humanitarian protection, predicated primarily on the grounds that she will be at risk as a Christian in Iran; the appeal was unanimously dismissed.

Sentencing remarks: R v. Zahid Hussain, HHJ Sweeney, Winchester Crown Court, 09.10.17

The defendant, Zahid Hussain, was convicted of engaging in conduct in preparation to commit acts of terrorism, contrary to s. 5 of the Terrorism Act 2006. The defendant had become radicalised and, the judge found, had decided to commit acts of terrorism by using explosives. The defendant had been using his bedroom as an improvised laboratory, testing recipes for a number of high explosives. Among his activities, the defendant had made a substantial ‘pressure cooker’ bomb containing high explosives and shrapnel (1.6 kg of, inter alia, nails, screws, and bolts). This device, had it been successful, could have caused serious harm to those up to ten metres from the epicentre of the blast. The judge made it clear that this conduct, ‘threatening democratic government and the security of the state’, had a seriousness ‘all of its own’. The judge followed the comprehensive sentencing guidance for offences contrary to s. 5 given in Kahar [2016] 2 Cr. App. R. (S) 32; the starting point in such cases is life imprisonment. Psychiatric issues aside, the defendant’s offence was found on the borderline between the bottom of Level 3 and the top of Level 4.

 

Sentencing remarks: Care Quality Commission v. Southern Health NHS Foundation Trust, DDJ Loraine Morgan, 12.10.17

The defendant had proceedings brought against it by Care Quality Commission (CQC). A patient (AB), who was being treated at the Melbury Lodge Psychiatric Unit, gained access to the roof of the facility in the early hours of the morning on 3rd December 2015. Sadly, he fell from the roof and suffered life changing injuries. The Trust acknowledged AB’s injuries were caused primarily by failings on their part to take steps to prevent patients gaining access to the roof and, in particular, to take special steps in AB’s case; on the eve of the incident AB’s wife had expressed her concerns that her husband would try to gain access to the roof, since he had done so on numerous occasions. A number of reports had been conducted and recommendations had been made to the Trust in 2012, 2013, and 2015 regarding necessary improvements to the facility for patient safety. Those improvement works were not carried out.

 

Other news

UK’s online terror policy could deepen support for Isis

Sir Ivor Roberts, a former head of counter-terrorism at the Foreign Office, has warned against the Home Secretary’s proposals for life prison sentences for those who view extremist material online. The fear is that Britain’s overpopulated prisons will prove even more of a “breeding ground for terror”.

The full article can be found here.

Dangerous drivers who cause death to face life sentence

Those who cause death while using their mobile phones or speeding will face life in prison, according to new sentencing proposals. There will also be a new offence of causing serious injury through careless driving. This is all part of renewed efforts to improve road safety.

The full article can be found here.

Harsher sentences proposed for repeat acid offences

Anyone caught twice possessing corrosive substances without good reason will automatically face a prison sentence of at least six months under new proposals to counter the threat of acid attacks. These were coupled with further proposals that criminal proceedings should be brought against retailers who deliver knives to a buyer’s home. All of this to tackle a surge in violent crimes recorded by the police.

The full article can be found here.

Senior Judge wants over ‘shaming’ impact of legal aid cuts

On Friday at a valedictory ceremony, Mr Justice Bodey spoke of how it was ‘shaming’ to preside over cases in which individuals were forced to represent themselves. He commented on how often he would have to cross-examine witnesses on behalf of litigants in person to strike a balance of fairness in proceedings. The judge commented: ‘I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases’.

The full article can be read here.

Two-year-old girl gives evidence in UK abuse case

It is believed that a two-year-old girl, who gave evidence in an abuse case, has become the youngest ever person to give evidence in a UK criminal case. Her interview in support of the prosecution case was recorded by a specialist court team.

The decision to involve the girl was, experts said, justified by the fact that the defendant pleaded guilty before the case came to trial. The NSPCC took this opportunity to highlight that this proves that sexual predators are wrong to assume that very young victims will not give evidence against them. The witness answered basic questions and could help give evidence by pointing to body parts on a paper figure.

The full article can be read here.

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Imprisonment for Public Protection (IPP)

On 14 August 2017, the Chair of the Parole Board, Nick Hardwick, gave an interview to BBC Radio 4’s ‘Today’ programme, in which he called for changes to the test to be met before prisoners serving sentences of Imprisonment for Public Protection (‘IPPs’) could be released by the Parole Board.  The sentences were controversial when brought into force in 2005 and remain so to this day.  Although the sentences were prospectively abolished in 2012, people sentenced to IPPs before that date remain subject to their provisions and more than three thousand people sentenced to IPPs are still in prison.  The call by the Chair of the Parole Board was set against the background of one High Court and two Court of Appeal decisions handed down in July 2017, in which those courts rejected a range of challenges to the regime.  This post considers the IPP scheme and the courts’ approach to the most recent challenges to the regime.

The Statutory Framework

IPPs came into force on 4 April 2005, by section 225 of the Criminal Justice Act 2003 (‘CJA 2003’), which provided that where a person over 18 was convicted of a ‘serious offence’ (as defined in the CJA 2003) and the court was of the opinion that there was a ‘significant risk to members of the public of serious harm’ caused by the offender committing further specified offences in the future, the court had to impose a sentence of imprisonment for public protection (unless the court was compelled to impose a sentence of life imprisonment).  The sentence had two aspects. First, it was for the court passing sentence on the offender to determine the minimum period required to be served before the offender became eligible for parole (‘the tariff’).  When the tariff period expired, it was for the Parole Board to consider whether the offender could be released.  An offender could only be released, however, if the Parole Board was satisfied that it was no longer necessary for the protection of the public that the offender be detained. The minimum term, therefore, represented the punishment for the offence, whilst the indeterminate period was for the protection of the public.

Repeal

The CJA 2003 was amended by the Criminal Justice and Immigration Act 2008 (‘CJIA’), which was brought into force on 14 July 2008.  The effect of one of the amendments was to remove IPPs from the sentences available to a judge where the notional determinate sentence was less than four years’ imprisonment.  IPPs were abolished in all other cases for anyone falling to be sentenced on or after 3 December 2012, the date on which the repeal provisions contained in section 123 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) came into force.  Section 123 of LASPO did not, however, apply retrospectively and so existing sentences of IPP continue to be lawful. LASPO also made provision, by section 128, for the Secretary of State for Justice to place a draft order before both Houses of Parliament with a view to varying the test to be applied by the Parole Board when deciding whether or not to direct the release of an IPP prisoner.  To date, the Secretary of State has not sought to exercise the power under section 128 to vary the release test.

The Challenges

Various features of the IPP scheme, as it continues to apply to those prisoners who received IPP sentences before its abolition in 2012,  have been the subject of recent challenges brought on behalf of two prisoners serving sentences of IPP: James Knights and Scott Henley-Smith. Those challenges have thus far been unsuccessful, though it is conceivable that they will be considered further on appeal.

James Knights

In respect of James Knights, the Court of Appeal heard two appeals:  (i) an appeal against an unsuccessful application for judicial review in which it had been argued that the prisoner’s continued detention failed to comply with the ECHR, heard by the Court of Appeal (Civil Division) (James Knights v Secretary of State for Justice [2017] EWCA Civ 1053); and (ii) an appeal against sentence, following a reference by the Criminal Cases Review Commission, heard by the Court of Appeal (Criminal Division) (James Knights v The Queen [2017] EWCA Crim 1052, [2017] 2 Cr App R (S) 33).  The appeals were heard jointly, though separate judgments were given.

Mr Knights was sentenced to an IPP with a determinate term of 8 months on 26 June 2008.  Less than three weeks later, the statutory provisions introduced by the CJIA came into force, which abolished IPPs for offenders where the notional determinate sentence was less than four years’ imprisonment.  Mr Knights’ tariff expired on 26 February 2009 but he was not released until July 2013 (though he was recalled on licence two months later, released again in March 2014, and recalled again in December 2014.  He remained in custody at the time of the appeals).

On the appeal against the refusal to grant judicial review, it was argued on Mr Knights’ behalf: (i) that  there had been a breach of Articles 3 and 5(1) of the ECHR (respectively, the prohibition of torture and inhuman or degrading treatment or punishment and the right to liberty and security), for which the Secretary of State was liable, as a consequence of the duration of Mr Knights’ detention and/or in light of the material legislative change; and (ii) that the appellant’s treatment was discriminatory by reference to those who had committed identical offences but were sentenced after 14 July 2008 (when the relevant revisions to the CJA 2003 came into force) and, therefore, in breach of Article 14 of the ECHR (prohibition of discrimination and the principle of lex mitior).  The Court of Appeal (Civil Division) rejected each of these arguments, holding that: (i) Article 14 ECHR was not engaged: the Court was bound by the decision of the House of Lords in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54. Even if Article 14 was engaged and assuming the date of conviction could amount to sufficient status to trigger art.14, the difference in treatment was inherent in the change in the law and was objectively justified: R. v Docherty [2016] UKSC 62 (ii) the claim insofar as it alleged breaches of Mr. Knights’ rights pursuant to Articles 3 and 5 ECHR could properly be rejected on the basis that the length of imprisonment was not such as to engage the principles in Vinter v United Kingdom (66069/09) (2016) 63 E.H.R.R (Article 3) and the causal link between the original lawful conviction and sentence and Mr. Knights’ continued detention had not been broken (Article 5) and of particular pertinence was the fact that Mr. Knights had been released and recalled to prison.

An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.

On the appeal against sentence, the appellant sought to argue that the sentencing regime which came into effect on 14 July 2008 (when sentences of IPP for tariff periods of less than four years’ imprisonment were abolished) was less severe than the one under which he had been sentenced.  To apply the earlier sentencing regime was, therefore, unlawful as contrary to the international principle of lex mitior .  This argument was rejected by the Court of Appeal (Criminal Division), which was bound by the decision of the Supreme Court in R v Docherty [2016] UKSC 62.  The appellant also sought to argue that even if the sentence was lawful when passed, it had become disproportionate to the crime committed, constituting a breach of Articles 3 and 5 of the ECHR.  The Court also rejected this argument, noting that: ‘The minimum term to be served represents the punishment for the offence whilst the indeterminate period is for the protection of the public – see James, Walker and Lee v Secretary of State for Justice [2010] 1 AC 553. An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.’ (per Thirlwall LJ at paragraph 38) As a matter of principle, the Court did not accept the argument that a lawful sentence could become disproportionate and so lead to a breach of either Article 3 or Article 5 simply by reason of the passage of time, particularly where, in Mr. Knights’ case, he had not been imprisoned continuously but had been recalled to prison by reason of his own conduct.

Scott Henley-Smith

Scott Henley-Smith applied for judicial review of the Secretary of State for Justice’s failure to consult upon, and then exercise, the power within section 128 of LASPO with a view to amending the release test to facilitate the release of  prisoners serving sentences of IPP.  Lang J. refused the application, finding that the decision of the Secretary of State not to legislate, or consult with a view to legislating, was a political matter which should be resolved in the political, rather than legal sphere and any interference by the Courts to require the Secretary of State to consult with a view to legislating would be a breach of Parliamentary privilege and contrary to the principle of the separation of powers. In any event, Lang J concluded,  the Secretary of State for Justice had exercised his discretion lawfully – both rationally and proportionately – by considering whether or not to vary the test applied by the Parole Board when considering whether to release on licence offenders detained on IPPs, but deciding instead to improve the operation of IPP sentences, enabling more prisoners to meet the conditions for release.

Comment

The intervention of the Chair of the Parole Board appears designed to place pressure on the Secretary of State to give further consideration to whether the release scheme may be capable of being varied. During his Radio 4 interview, Nick Hardwick suggested that for people with tariffs under two years, the onus should be on the state to prove that they were likely to commit a further offence rather than the other way around.  Of the 3300 still in prison on IPPs, this would apply to around 550 of them.  Assuming the Secretary of State maintains his current position, as upheld by the High Court in Henley-Smith’s case, it seems the only way in which prisoners serving IPPs will be released is if they either manage to satisfy the current criteria for release, with the benefit of the enhanced resources and measures made available by the Ministry of Justice to enable prisoners to progress more speedily through the prison estate.

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9 October 2017

Weekly Digest: 9 October 2017

In this week’s digest the Court of Appeal quashed a conviction for kidnapping on the basis that hearsay evidence should not have been admitted under section 116 of the Criminal Justice Act 2003, the Court of Appeal considered the valuation of benefit in confiscation proceedings, and the Administrative Court rules on human rights a challenge to the current approach to assisted suicide.

Mustafa Kiziltan v. Regina [2017] EWCA Crim 1461

Judgment available here handed down by Thirlwall LJ in the Court of Appeal (Criminal Division) on 6 October 2017

Mustafa Kiziltan, the appellant, was charged with kidnapping. On 23rd February 2016, Ms Zeynap Yardigi – the appellant’s ex-parnter – alleged that Mr Kiziltan entered her flat with two other men and forced, at knife point, her friend, Mr Ahmed Firat, naked from her flat. He subsequently broke free while Ms Yardigi hid in the bathroom. Mr Firat then positively identified the appellant by an identification procedure.

 

Wang Yam v. Regina [2017] EWCA Crim 1414

Judgment available here handed down by Thomas LCJ, Sweeney J and May J in the Court of Appeal (Criminal Division) on 29 September 2017. 

The appellant, Mr Wang Yam, was indicted on six Counts in 2008: (1) the murder of Allan Chappellow (the deceased); (2)/(3) burglary/theft relating to four cheques; (4) handling those cheques; (5) obtaining a money transfer of £20,000; (6) theft of £20. In March 2008, the appellant was convicted on Counts (4), (5) and (6); the jury was unable to reach a verdict on Counts (1) – (3). Following a retrial in January 2009, he was convicted on  Counts (1) and (2). The subject of this appeal was whether his conviction for murder should be quashed on the basis that:

  • a non-disclosure by the police force and CPS denied the defence the opportunity to present an alternative suspect for the jury’s consideration; and
  • in light of the above, taken with the lack of evidence directly connecting the appellant with the murder of the deceased, there was a real possibility the conviction was unsafe.

 

R v. Mehmet Bala [2017] EWCA Crim 1460

Judgment available here handed down by Thirlwall LJ in the Court of Appeal (Criminal Division) on 6 October 2017.

This appeal arose out of the appellant’s application for an extension of time of ten years to apply for leave to appeal against his sentence and to adduce fresh evidence. The appellant had, in July 2006, pushed a stranger in front of a train at Highbury and Islington underground station, after he had lost £150 gambling. The appellant was interviewed by two psychiatrists and deemed fit to be interviewed and detained; the diagnosis was a paranoid psychotic illness, but not one serious enough to warrant admission to hospital. After being remanded in custody, conflicting medical reports were obtained regarding the appellant’s fitness to plead. The Crown’s expert gave evidence at a pre-trial hearing that the appellant’s mental illness would have ‘substantially impaired his responsibility’, but, notwithstanding this, he went on to say that, in his opinion, he would have still known his actions were wrong. Thus, it was the Crown’s expert’s professional opinion that the appellant was fit to stand trial, and that if a plea to manslaughter on the grounds of diminished responsibility were accepted by the court, this was a case for a hospital order under s. 37 of the Mental   Health Act (MHA) 1983, with a s. 41 restriction.  The appellant’s case was adjourned for an assessment at Broadmoor under ss. 48 and 49 of the MHA.  This assessment conflicted with the previous evidence in that  the ‘symptoms of psychosis were  unlikely to have been a significant cause of the appellant’s behaviour in committing the index offence’; there was, accordingly, no recommendation  to the court in respect of sentencing. A final expert reviewed the previous psychiatric assessments and then interviewed the appellant before sentencing. He then recommended to the court that the appropriate disposal was an order under s. 37 of the MHA together with a restriction under s. 41, as the appellant was suffering from a form of paranoid schizophrenia.

 

Dr Michael James Norton Brookman v. General Medical Council [2017] EWHC 2400 (Admin)

Judgment available here handed down by Holgate J in the Administrative Court on 29 September 2017.

The appellant had trained to be a doctor later in life and, in March 2014, began work as a locum. In April 2014, the General Medical Council (GMC) wrote to the appellant informing him that it had opened an investigation following a complaint he had carried out an inappropriate sexually motivated examination of a female patient. At an Interim Orders Tribunal (IOT), under s. 41A of the Medical Act (MA) 1983, conditions were imposed on the appellant’s registration as a medical practitioner and he was required to notify certain parties of the conditions, including any potential employer. His next hospital placement was cancelled, in view of the IOT’s order. Since that cancellation, the appellant sought work in education but he was dismissed from a lectureship at Bournemouth University  following student complaints and an offer of employment from Swansea University was withdrawn, after he – finally – informed them of the conditions currently imposed upon his registration and the disciplinary proceedings arising  out of the complaints from Bournemouth students. The Medical Practitioners Tribunal Service (MPTS), following a hearing at which the appellant was largely unrepresented and which was conducted in part in his absence, decided that the  appropriate sanction was erasure; failing to notify his employers of his conditions and previous complaints justified a finding of dishonest conduct sufficiently serious to warrant a finding that his fitness to practice was impaired. Immediate suspension followed erasure.

 

Noel Douglas Conway v. Secretary of State for Justice [2017] EWHC 2447 (Admin)

Judgment available here handed down by Sales LJ in the Administrative Court on 5 October 2017.

The applicant suffered from a form of Motor Neurone Disease (MND) with a prognosis of 6 months to live. He had expressed the wish to have the option of taking action to end his life at a time of his choosing. The applicant’s case was that s.2 of the Suicide Act 1961 is a blanket ban on the provision of assisted suicide which constitutes an interference with Mr Conway’s right of respect for his private life under Article 8 of the ECHR, as adopted as a Convention right for the purposes of the HRA 1998. As such, a declaration of incompatibly under s. 4 HRA was argued to be the appropriate relief. The Secretary of State conceded that prohibition against assisted suicide set out in s. 2 did represent an interference with the applicant’s right to respect for his private life under Art. 8(1) (as established under Pretty v. United Kingdom (2002) 35 EHRR 1, para. 67; Hass v. Switzerland (2011) 53 EHRR 33, para. 51; R (Purdy) v. DPP [2009] UKHL 54; R (Nicklinkson) v. Ministry of Justice [2014] UKSC 38). However, the Secretary of State submitted that this interference under Art. 8(1) is justified under Art. 8(2), the prohibition on assisted suicide being ‘necessary in a democratic society’ as a proportionate measure ‘for the protection of health’.

 

ARB v. IVF Hammersmith Ltd and R [2017] EWHC 2438 (QB)

Judgment available here handed down by Jay J in the Queen’s Bench Division on 6 October 2017.

The claimant brought proceedings against his IVF clinic on the grounds that a Consent to Thawing of Embryos had been obtained without his consent by his estranged partner. It followed, in the claimant’s submission , that the IVF clinic must bear the financial consequences of the unwanted child, particularly for bringing her up. The clinic, in turn, brought CPR Part 20 proceedings against the claimant’s estranged partner for an indemnity. The judge noted that this was an incredibly complex civil case.

 

Sentencing Remarks: R v. Aaron Barley, HHJ Carr, Birmingham Crown Court, 04/10/2017

 

Other news

Child on child sexual assaults soar, police figures reveal

New Court complex planned to bolster City of London post Brexit

Judge cleared of making inappropriate remarks in modern slavery case

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An overview of the Criminal Justice (European Investigation Order) Regulations 2017

The Government has published the Criminal Justice (European Investigation Order) Regulations 2017 (‘the Regulations’) which will come into force on 31 July 2017. The Regulations significantly enhance the ability of law enforcement agencies to obtain mutual legal assistance within the European Union.

The background to the Regulations: the European Investigation Order Directive

The Regulations have been introduced to give effect to the European Investigation Order Directive (‘the Directive’). The Directive replaces most of the existing EU mutual legal assistance measures in relation to the transfer of evidence with a single instrument, the European Investigation Order, based on principles of mutual recognition.

A European Investigation Order (‘EIO’) is a mechanism by which investigators and prosecutors can obtain a wide range of MLA measures, including freezing assets; obtaining and transferring evidence; and hearing witnesses. The Directive streamlines previous MLA procedures into a single process under which there are limited grounds of refusal and tight time limits.

European Investigation Orders issued in the UK

There are two routes by which an EIO can be issued in the UK: (i) on application to a judicial body; or (ii) EIOs made or validated by a designated public prosecutor.

EIOs issued by a judicial body

Under Regulation 6, an application for an EIO can be made to a judicial authority by (i) a prosecuting authority; (ii) a police officer acting with the consent of a prosecuting authority; or (iii) a party to proceedings relating to an offence. This latter category includes Defendants. In England and Wales, a judicial authority is defined as including “any judge or justice of the peace”.

EIOs made or validated by a designated public prosecutor

Under Regulation 7, a designated public prosecutor may make an EIO herself, or validate an order at the request of a designated investigating authority. The definition of designated public prosecutor includes the Director of Public Prosecutions; any Crown Prosecutor; the Director of the SFO; and the Financial Conduct Authority. Designated investigators include chief officers for all police areas in England and Wales, as well as the Chief Constable of the PSNI. In validating EIOs made by investigators, the public prosecutor is taking on a quasi-judicial role.

Public prosecutors and investigators may obtain an EIO under both Regulations 6 and 7. In an Explanatory Memorandum, the Home Office explained that “Where there is currently no need for court involvement in domestic cases, European Investigation Orders will normally be made or validated by a designated public prosecutor…Where a court would normally be involved in a domestic case (for instance when issuing a search warrant), only a court will be able to make a European investigation order.”

The test for obtaining an EIO

In both types of EIO, the issuing body must apply a two-part threshold test, and then satisfy itself in relation to conditions of necessity; proportionality; equivalent domestic legality; and additional conditions in relation to certain measures.

The two part threshold test is: (i) that an offence has been committed, or there are reasonable grounds for suspecting that an offence has been committed; and (ii) that proceedings in respect of the offence have been instituted or it is being investigated.

The second stage test requires the issuing authority to satisfy itself as to the following conditions:

  • It is necessary and proportionate to make the order for the purposes of the investigation or proceedings in question;
  • The investigative measures specified in the order could lawfully have been ordered or undertaken under the same conditions in a similar domestic case;
  • Any additional requirements specified in Chapter 2 of the Regulations has been met. Chapter 2 of the Regulations imposes additional requirements in relation to certain types of measures, including: videoconference and telephone hearings; banking and financial information; real-time evidence gathering (such as monitoring bank accounts); provisional measures; and interception measures where technical assistance is required.

Defence rights

Although the Regulations embed a number of defence rights into the process for obtaining an EIO, the extent to which these rights will give rise to an effective legal remedy will depend, in many cases, on whether the affected person is aware of the fact that an EIO has been made.

The rights of the defence include the requirements of the threshold and second-stage tests considered above (Regulations 6 and 7); the additional procedural protections in relation to the measures specified in Chapter 2 (Regulations 13-18); formal requirements for the making of an EIO, including an obligation to provide accurate information (Regulation 8); and limitations on the use that can made of evidence obtained under an EIO (Regulation 12).

European Investigation Orders executed in the UK

Part 3 of the Regulations provides for an EIO to be sent to the UK central authority which must take a decision on the recognition and execution of the Order. In England and Wales the central authority is the Home Secretary.

Regulations 32 and 33 make specific provision for HMRC cases under which the Revenue Commissioners can perform certain of the functions of the Home Secretary for the purpose of recognising an EIO.

Under Regulation 51, the central authority may refer the execution of the EIO to “an executing authority” if they are likely to be able to give effect to the order, and it is expedient to do so. Executing authorities include the police; the Crown Prosecution Service; the Serious Fraud Office; the Financial Conduct Authority; the Health and Safety Executive; HMRC; and others.

Grounds for refusal

Regulation 28 provides that the central authority may only refuse to recognise and execute an EIO if:

  • one or more of the grounds for refusal applies;
  • the investigative measure sought does not exist, or would not be available in an equivalent domestic case, and cannot be replaced with another that would achieve the same result;
  • the dual criminality test is not met;
  • lack of consent (video-conference hearings and temporary transfer);
  • The measure may prolong imprisonment (temporary transfer).

The central authority may also refuse to recognise an EIO on certain grounds where the measures relate to covert investigations; real time evidence gathering; or interception.

Certain of the grounds for refusal are disapplied if the EIO relates to one of the types of evidence or measures specified in Regulation 28(2), including evidence already in the possession of the central authority (or other executing authority in the UK) where the evidence could lawfully have been obtained; evidence in databases that is directly accessible by the central authority (or other executing authority) in the framework of a criminal investigation or criminal proceedings; the hearing of a witness; non-coercive measures; or subscriber information.

The grounds for refusal are set out in Schedule 4 and include:

  • Immunity or privilege;
  • National security;
  • Lack of equivalent domestic legality;
  • Double jeopardy;
  • Territoriality;
  • Human rights;
  • Discrimination/extraneous considerations.

Challenging an EIO

 Regulation 10 provides that the judicial authority or designated public prosecutor that made or validated an EIO may vary or revoke it. In the case of judicial authorities, this can be done on application by the person who applied for the order; a prosecuting authority; or “any person… affected by the order”. This latter category plainly includes the defendant(s) in the proceedings in which the EIO was obtained, but would also appear to encompass a wider category of persons, including the owner or controller of the evidence.

There is no appeal against the making or validation of an EIO by a public prosecutor, or a decision to recognise and execute an EIO by a UK authority. In these cases, the only route of challenge will be by way of judicial review.

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6KBW
6KBW
2 October 2017

Weekly Digest: 2 October 2017

tIn this Weekly Digest, the Court of Appeal dismissed an appeal concerning the correct interpretation of section 76(5A) of the Criminal Justice and Immigration Act 2008, which contains the defence of self-defence in so-called “householder cases”, the High Court considered extradition to the Czech Republic on the basis that it would be unjust or oppressive, and  HHJ Pringle QC, the Recorder of Oxford, sentences a student at the University of Oxford for stabbing her partner in the leg.

R v Ray [2017] EWCA Crim 1391

Judgment (available here) handed down by the Thomas LCJ in the Court of Appeal (Criminal Division) on 26 September 2017.

Concerning section 76(5A) of the Criminal Justice and Immigration Act 2008, which contains the defence of self-defence in so-called “householder cases”. Appeal dismissed.

 

Konecny v District Court Czech Republic [2017] EWHC 2360 (Admin)

Judgment (available here) handed down by Sir Wyn Williams in the High Court on 27 September 2017.

Concerning an appeal against extradition to Czech Republic to serve an eight-year prison sentence for fraud offences. Appeal dismissed.

 

Sentencing remarks: R v Lavinia Woodward, HHJ Ian Pringle QC, Oxford Crown Court (26.09.17)

In October 2016, Lavinia Woodward, who had both drug and alcohol addictions, began a relationship with a Cambridge University student. In December 2016, he visited Woodward at her accommodation at Christ Church, Oxford University. She had clearly been drinking and, as the evening progressed, her behaviour became increasingly volatile. At one stage, Woodward’s partner contacted her mother, over Skype, to seek her assistance about what to do with her. When she discovered this, she became extremely angry, and stabbed him in the leg with a bread knife. Two of his fingers also received cuts. Woodward then started to turn the knife on herself, and her partner had to disarm her. The wounds that he suffered, though, were relatively minor. The cuts to his fingers were treated at the scene, with steri-strips, and the wound to his leg was closed with three stitches. In April 2017, Woodward pleaded guilty to one offence of unlawful wounding.

 

Other news

Man accused of conspiring to kidnap British model to be extradited to Italy (29.09.17)

Sentences for animal cruelty to increase ten-fold to five years in prison (30.09.17)

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6KBW
6KBW
11 September 2017

Weekly Digest: 11 September 2017

In this Weekly Digest, the High Court gave reasons for previously granting the continuation of an injunction preventing the disclosure of confidential information relating to the treatment of children at a school in South Croydon (Dodsworth)

London Borough of Croydon v Dodsworth [2017] EWHC 2257 (QB)

Judgment (available here) handed down by Lavender J in the High Court (Queen’s Bench Division) on 8 September 2017

The London Borough of Croydon’s schools include Red Gates School, in South Croydon, at which Mia Dodsworth, the first defendant, was headmistress from September 2016 until April 2017. On resigning, Ms Dodsworth was placed on “garden leave”. She, along with Devika Pauline Lambert, the second defendant – an educational advocate, providing consultancy services – had concerns about treatment of children at the School. Ms Lambert, in particular, was not satisfied with the London Borough of Croydon’s responses to such worries. In the summer of 2017, while still on garden leave, Ms Dodsworth accessed her work email account, forwarded various emails to her personal email address, and then forwarded them to Ms Lambert. These emails included documents containing confidential information about children and staff at the School. Ms Lambert duly spoke to the police about her concerns, sent information to Ofsted, and vowed to issue a press release. The London Borough of Croydon made an urgent application for an injunction, without notice, which was granted. The defendants were prohibited from using, publishing, communicating, or disclosing material described therein as “the Confidential Information”.

In September 2017, the High Court granted the continuation of the injunction. It heard that hearing in private, but now gives its reasons in public. Ms Lambert had drawn the Court’s attention to the Freedom of Information Act 2000; section 175 of the Education Act 2002; sections 43C and 43G of the Public Interest Disclosure Act 1998; Articles 5 and 7 of the ECHR; and Articles 2, 3, 6, 12, 19, and 28 of the United Nations Convention of the Rights of the Child. Reliance was placed, also, on a letter from Newspaper Media Group, proprietor of the Croydon Guardian, referring to section 12 of the Human Rights Act 1998 and the public interest in the question of whether the School was being properly run. The Court, however, was satisfied that publication should not be allowed. First, the Confidential Information had the necessary quality of confidence – it included, for instance, photographs of children. Second, it was imparted in circumstances importing an obligation of confidence, on Ms Dodsworth’s part, to her employer. Third, unauthorised use or disclosure was threatened – and, while Ms Lambert had obtained signed consent forms from some parents, these did not extend to making the information about their children public. As with any school, the High Court held, there is a public interest in seeing that it is properly run, and that the local authority is properly carrying out its responsibilities. It would not be in the public interest, though, for the Confidential Information to be published by these defendants. If, however, those who are entitled to do so – i.e. parents of children at the School – were to disclose information, either to the authorities or more widely, that was a matter for them, the Court concluded.

Other News

CJEU dismisses complaints over EU asylum seeker quotas (6 September 2017)

EU judges should rule on UK surveillance powers, IPT rules (8 September 2017)

MP’s review reveals justice system’s bias against ethnic minorities (8 September 2017)

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Rosalind Earis
Rosalind Earis
10 September 2017

Criminal liability for removing children from school

In Isle of Wight Council v Platt [2017] UKSC 28, the Supreme Court considered the correct interpretation of section 444(1) of the Education Act 1996, and in particular the definition of attending “regularly” at school. In allowing the appeal, the Court held unanimously that “regularly” could not mean “sufficiently frequently”, but must mean “in accordance with the rules” prescribed by the school. As a result, criminal liability can be founded on even one day’s absence outside the rules.

While most commentary has focused on the practical effect on parents of school-age children, the case is of legal interest for illustrating the Supreme Court’s current attitude towards statutory interpretation and the influence of policy.

Background

The Respondent, Mr Platt, sought permission to take his seven-year-old daughter on a term-time holiday to Florida. Permission was refused by the head-teacher but Mr Platt took his daughter on the holiday regardless. A £60 penalty notice was issued by the Local Authority under the Education (Penalty Notices) (England) Regulations 2007; upon Mr Platt’s failure to pay it, summary proceedings were brought for the offence contrary to section 444(1) of the Education Act 1996 (“the 1996 Act”).

Section 444(1) of the 1996 Act states:

If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

At the close of the prosecution case, the magistrates held that Mr Platt had no case to answer as his daughter’s attendance still fell above the 90% rate deemed satisfactory by the Local Authority in its published literature. Her attendance was sufficiently frequent as to be regular.

The Council appealed by way of case stated, and the magistrates certified the following question for consideration by the High Court:

“Did we err in law in taking into account attendance outside of the offence dates…as particularised in the summons when determining the percentage attendance of the child?”

A Divisional Court of the Queen’s Bench Division answered that question in the negative. Under section 1 of the Administration of Justice Act 1960 appeal lay straight to the Supreme Court.

The Supreme Court shifted emphasis away the regularity of attendance within and without the specified period, determining that “the essential question for this court is the meaning of “fails to attend regularly” in section 444(1) of the 1996 Act”.

In a judgment delivered by Lady Hale, the Court conducted a historical analysis of the legislation and considered competing meanings of the word “regularly”. It held that “regularly” could not mean “sufficiently frequently” and must mean “in accordance with the rules”, such that even a single day’s absence outwith the rules could contravene the criminal law. It relied principally on these reasons:

(i) The historical arc of legislation bent towards increasing the scope of compulsory education and reducing absences;

(ii) Other provisions of the 1996 Act relating allowed criminal liability to arise from a single day’s absence;

(iii) Any other interpretation would be too uncertain;

(iv) Policy justifications dictate that unauthorised absences must not be condoned.

Analysis

Of the three main rules of statutory interpretation – the literal rule (give a word its plain and ordinary meaning), the golden rule (depart from the literal rule where an absurd result would ensue) and the mischief rule (interpret to address the mischief that Parliament sought to remedy by this law) – the mischief rule has traditionally been of the narrowest application, invoked only where the other two are deficient. The judgment in Platt is of interest for the Court’s willingness to consider only the mischief rule, even where that requires the imputation to Parliament of a very uncommon meaning of the word. Although a wide application of the rule has historical detractors (it was once colourfully labelled “redrafting with a vengeance” by Lord Edmund-Davies: Royal College of Nursing v DHSS (1981) [1981] 2 WLR 279 [1981] AC 800) it has been described by the Law Commission as the “rather more satisfactory approach” to statutory interpretation, and has long been favoured by European courts for its pragmatism. The disadvantages of a literal interpretation shine especially bright where, as here, the law must be tightly defined: a summary only offence – punishable with a fixed penalty notice – of wide application to the population calls for clarity.

The respondent’s interpretation also suffered in the strong tide of policy considerations against him. Counsel for the intervening Secretary of State for Education explicitly invited the court to focus on whether a parent has the right to take a child out of school for any reason they judge appropriate. The Court agreed with this focus, pointing out the “very good policy reasons why [any other] interpretation simply will not do”, including the disruption to both the affected pupil and others in the class. The court’s interpretation was guided by a policy principle that school cannot be compulsory merely when it is convenient.

The court’s interpretation was guided by a policy principle that school cannot be compulsory merely when it is convenient.

Also striking is the Court’s brief paragraph addressing whether it should merely make a declaration or should remit Mr Platt’s case to the magistrates for inevitable conviction. A court will usually give the benefit of any doubt to a criminal defendant, and here the law on section 444(1) of the 1996 Act had been interpreted in Mr Platt’s favour by all concerned before this case – from the High Court in the earlier case of London Borough of Bromley v C [2006] EWHC 1110 (Admin), to prosecutors and the Local Education Authorities whose own published policies treated “regularly” as meaning “sufficiently frequently”. However, this case should set down no general rule of disposal. Harsh as it is, it was an egregious example of undermining the school’s rules: Mr Platt had sought permission and deliberately ignored its refusal; his daughter had been taken on a week’s term-time holiday just two months before by her mother; the mother had been issued with a penalty notice and paid it.

Finally, this case may encourage debate of the utility of section 1 of the Administration of Justice Act 1960 – the law of a relatively minor criminal offence was considered only by lay magistrates and the Divisional Court before adding to the Supreme Court’s already heavy workload.

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6KBW
6KBW
4 September 2017

Weekly Digest: 4 September 2017

Welcome to the 6KBW College Hill Weekly Digest for 4 September 2017. This week’s highlights include Court of Appeal cases on the admission of fresh evidence, the conduct of disciplinary hearings in private, and the first consideration of the Care Act 2014.

Fresh evidence: R v Moore [2017] EWCA Crim 1304

Judgment (available here) handed down by the Court of Appeal (Criminal Division) (Sharp LJ, Sweeney J and Sir Richard Henriques) on 1 September 2017. Simon Denison QC and Jacob Hallam QC appeared for the Crown Prosecution Service.

In December 2013, the applicant was convicted of the murder of Robert Darby, who was killed in August 2005. His co-accused, Martin Power, was acquitted. The applicant was sentenced to life imprisonment, with a minimum term of 18 years. He applied three years and three months out of time for an extension of time, permission to appeal against conviction, and to rely upon fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968 (“the 1968 Act”). The applicant seeks permission to appeal on two grounds:

(1) The conviction is unsafe in light of the unreliability of the principal prosecution witness, Abdul Ahmed, as demonstrated by fresh expert evidence; and

(2) Other fresh evidence from a number of witnesses shows that Power alone committed the Crime.

 

Private disciplinary proceedings: Zai Corporate Finance Ltd v AIM Disciplinary Committee of the London Stock Exchange Plc [2017] EWCA Civ 1294

Judgment (available here) handed down by the Court of Appeal (Civil Division) (Sir James Munby P, Lewison and Lindblom LJJ) on 30 August 2017.

The issues in this appeal arose in the context of disciplinary proceedings before the respondent, brought by the London Stock Exchange Plc (the interested party) against the appellant. The dispute was whether, as the appellant contended, the hearing should be in public or whether, as the respondent directed, it should be in private. The appellant sought judicial review of that decision, but was refused by the High Court.

 

Care Act 2014: R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308

Judgment (available here) handed down by the Court of Appeal (Civil Division) (McFarlane, Bean and Thirlwall LJJ) on 1 September 17.

The appellant sought judicial review of the respondent’s decision to reduce his personal budget, and to revise his care and support plan pursuant to the Care Act 2014 (“the 2014 Act”). The effect was to reduce his budget from £1651 to £950 per week. The High Court dismissed the claim, and the appellant appealed that decision. This was the first case in which the Court of Appeal considered the 2014 Act.

 

Law Commission Consultation: Sentencing Code

On 27 July 2017, the Law Commission published its draft Sentencing Code, and an accompanying consultation paper.

The Commission’s aim, in this project, is to introduce a single sentencing statute that will act as the comprehensive source of sentencing law – the “Sentencing Code”.

Other news

Court orders that child at heart of religious fostering row should live with her grandmother (30 August 2017)

Government insists nitrous oxide still illegal, despite failed prosecutions (31 August 2017)

Ministry of Justice report: young black people nine times more likely to be jailed than young white people (1 September 17)

 

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Challenging prosecutorial decisions

Challenging decisions to prosecute criminal offences is notoriously difficult; and decisions to investigate still harder. At issue in SXH v CPS [2017] UKSC 30 was the availability of fundamental rights, and in particular article 8 ECHR, to bolster the arsenal of suspects and defendants.

The background

The facts were compelling. The appellant was a young Somalian woman, who, as Lord Kerr observed, had “had to endure experiences of the most horrific nature” in her short life. Set against the background of inter-clan violence in Somalia, she had suffered repeated severe violence, being raped, the murder of her father and two years later witnessing the murder of her mother with a rifle butt. Aged just 17, she fled Somalia and, in December 2009, she attempted to pass through Stansted airport using a false UK passport. She was detained and immediately claimed asylum.

She was subsequently arrested for and charged with an offence contrary to section 25(1) of the Identity Cards Act 2006. In the Crown Court, she raised a section 31 defence. Section 31 gives effect to Article 31 of the Refugee Convention and creates a defence for refugees who resort to criminality to reach a place of safety.

The CPS initially (and incorrectly) took the view that the defence did not apply because the appellant had spent a year in the Yemen before coming to the UK. The appellant was eventually granted asylum and the next day the CPS offered no evidence against her. She was released from custody almost six months after she was detained. She then sought damages against, inter alia, the CPS for breach of her article 8 rights arising from the decision to prosecute her.

Article 8

Suspects and defendants can undoubtedly rely on article 8 in some areas of criminal law. Private and family life is engaged by some investigatory steps (decisions to search persons, see Gillan v UK [2010] 50 EHRR 45, or property, see Niemietz v Germany [1993] 16 EHRR 97; the compulsory production of documents, see Hafner [2009] 1 WLR 1005), but not all (the decision to publish photographs to identify a young suspect, see JR38 [2015] UKSC 42; the police retention of biometric data, Goughran [2015] UKSC 29; the granting or refusal and conditions of police or court bail (Re HA’s [2014] NIQB 115).

The Court’s Decision

The question for the Supreme Court in SXH was whether a decision by a public prosecutor to bring criminal proceedings against a person falls potentially within the scope of article 8 in circumstances where:

(i) The prosecutor has reasonable cause to believe the person to be guilty of the offence with which they are charged; and

(ii) The law relating to the offence is compatible with article 8?

The answer to that question has divided the senior judiciary for some time.

In R v G [2008] UKHL 37, the House of Lords considered whether the decision to prosecute a child, following private consensual sexual intercourse with a younger child he thought was his own age, for a more serious sexual offence was disproportionate. The Court was split as to whether the decision engaged article 8 ECHR at all: Lord Hoffman and Lady Hale said it did not; Lord Hope and Lord Carswell (and Lord Phillips MR in the Court of Appeal) accepted it did and Lord Mance expressed no view, but agreed with Lord Hoffman and Lady Hale that the decision was not disproportionate. G’s appeal to Strasbourg was declared inadmissible – a decision consistent with the absence of any ECHR authority for article 8 applying to prosecutorial decision-making.

In SXH, the appellant argued that the implications that flowed from a decision to prosecute would interfere with the enjoyment of her private life.  The Supreme Court unanimously rejected that consequentialist argument. Lord Toulson, giving the lead judgment with which Lords Mance, Reed and Hughes agreed, held that if the criminalisation of conduct does not itself amount to an unjustifiable interference with article 8 rights, then neither does a decision to prosecute for that conduct.

So, the prosecution of an article 8 compliant offence will not engage article 8. Intriguingly, however, the appellant attempted during oral argument to extend her challenge to the conduct of the CPS between the decisions to prosecute and to offer no evidence, i.e. the CPS should have realised sooner that the defence was unanswerable and the continuation of the prosecution engaged article 8. The appellant was not permitted at that late stage to broaden the question for the Court to consider and so it was left undetermined.

The future

Where does SXH leave challenges to investigatory and prosecutorial decisions? Rationality-based judicial review claims remain the weapon of choice for suspects and defendants (see most recently SOMA v SFO [2016] EWHC 2471), but SXH left the door open to further article 8 arguments. The Court’s reasoning that article 8 was not engaged relied on the concession that it was reasonable for the prosecutor to conclude that the evidential threshold was met at the time of the decision to prosecute. Where that concession is not made and the decision is not reasonable, or where the position has moved on after an initially sustainable decision, there is scope to argue that article 8 applies. In other words, and perhaps unsatisfactorily, article 8 could bite on bad investigatory and prosecutorial decision-making.

Support for this argument is found in the judgment of Lord Kerr, who has repeatedly contended for a more expansive approach to article 8 in criminal matters (see, Beghal [2015] UKSC 49 and JR38, supra). In SXH, Lord Kerr gave a concurring judgment, but dissented in his reasoning. He observed, citing existing authority, that the failure by the prosecution in its duty to act on a change in circumstances, which renders detention no longer justified, could engage and breach article 5, and it follows, article 8.

At the centre of the decisions in G and SXH is a reluctance to extend the scope of human rights to matters already catered for by the common law. Lord Hoffman put it bluntly in G:

“This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”

But today’s heresy is tomorrow’s orthodoxy, and it may not be long before we see article 8 biting on some prosecutorial decisions.

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Politically exposed persons

The Fourth Money Laundering Directive was transposed into UK law when the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 came into force on 26 June 2017. The change allows firms to take a more nuanced approach to assessing the risks posed by politically exposed persons (“PEPs”).

The new regulations were released in draft form in mid-March and represent a significant change in anti-money laundering regulation.

PEPs are defined as people who have a prominent public function in the government. Foreign PEPs (including their family members and business associates) have long been subject to enhanced due diligence. From now on domestic PEPs will be subject to the same regulations.

Proportionality

The justification for the enhanced treatment of foreign PEPs is that their very position leaves them exposed to bribery and corruption. The measures are said to be preventive, rather than punitive. However, it has long been a complaint that all foreign PEPs are treated alike.

Under the previous regime, there were often complaints that a disproportionate application of enhanced due diligence (“EDD”) to PEPs. The new regulations apply a more nuanced approach, requiring firms to assess the risks posed by PEPs in a proportionate way.

The new regulations apply a more nuanced approach, requiring firms to assess the risks posed by PEPs in a proportionate way.

It is recognised that some firms have been distinguishing between high- and low-risk PEPs for some time and tailoring their EDD accordingly. The regulations now endorse that approach. They make it clear that when dealing with PEPs, firms must assess the level of risk associated with that client and the extent of the EDD to be applied. Regulation 35(4) specifically provides that the extent of the EDD measures to be taken in relation to a PEP may differ from case to case.

Level of risk

There is evidence that some banks have been turning away clients who are PEPs, and their families, because of their status. HM Treasury has stated that refusing to establish a business relationship or to carry out a transaction simply because that person is a PEP is contrary to the letter and spirit of the law and issued a strong guideline that firms must not form judgments based solely on anyone’s status as a PEP.

It states:

 ‘when assessing the level of risk posed by UK PEPs and the extent of EDD to apply, firms should take account of the UK’s position as a world leader in the fight against corruption, money laundering, and terrorist financing.’

The consultation on the regulations goes on to say that the government would expect that UK PEPs should generally be treated as lower risk and firms should apply EDD accordingly: ‘It is right that low-risk PEPs should be treated at the lowest level, just as it is right for high-risk customers to face more stringent measures’.

Future Guidance

The Financial Conduct Authority is currently consulting on guidance on the treatment of PEPs, their family and their associates. Factors which are considered to be relevant to assessment of an individual’s risk as a PEP include:

  1. Their prominence in public life and level of influence within their organisation;
  2. Their ability to control public or party funds;
  3. Whether they have already been subject to disclosure requirements such as registers of interest or independent oversight of their expenses;
  4. Whether the PEP is associated with the local branch of a political party or the national one and whether they have any elected MPs;
  5. In the case of a foreign PEP, the level of risk associated with the country that appointed them;
  6. Whether they have stopped performing the prominent function in the preceding 12 months; and
  7. Relevant media coverage.

Under the new regulations, firms must continue to apply EDD for at least 12 months after the PEP ceases to perform a prominent function. However, they will not be obliged to apply EDD to the PEP’s family and business associates because they would no longer have the same connection to an influential person.

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Lucy Organ
Lucy Organ
24 August 2017

Flexible operating hours: HMCTS pilot scheme

Her Majesty’s Courts and Tribunals Service (“HMCTS”) has announced a pilot scheme to extend court sitting times at criminal and civil courts around the country.

This is not the first time that the government has explored this possibility. In May to September 2002 there was an extended sitting times pilot scheme in Manchester and London. Following this pilot scheme, Yvette Cooper, the then courts minister, announced; “In practice, the night courts proved prohibitively expensive although the early-morning sittings were more useful.” She said that in light of the qualified success of the pilot it had been decided by Trafford Magistrates’ Court to extend their early morning sessions to include early morning fines courts.

Extended sitting times have also been used in times of huge pressure on the criminal justice system, for example in August 2011, at the time of the London Riots, courts sat through the night to deal with the large number of cases.

The government has now announced a nationwide pilot for extended sitting times for a variety of courts. Under the pilot scheme, courts would sit from as early as 8am and rise as late as 8.30pm. It has been pointed out that this may mean that court users’ working days may start as early as 7am or end as late as 9pm. Crown Courts are to sit to 6pm, civil courts to 7pm, and magistrates’ courts until 8.30pm. The pilot is to be run in Newcastle Crown Court, Blackfriars Crown Court, Sheffield Magistrates’ Court, Highbury Corner Magistrates’ Court, Brentford Country Court, and Manchester Civil Justice Centre. It is due to last for six months. This is an issue which could potentially affect the whole profession, from criminal and family practitioners to civil practitioners; it will also affect both solicitors and barristers.

HMCTS have stated that this pilot is intended to improve access to justice for “everyone by making the service more convenient for working people.” It is said that the pilot is to enable HMCTS to understand how this would affect all court users and would be “fully evaluated before any decision is taken on rollout.” Nonetheless, those who practise in the pilot areas will have to decide how to handle the extended sitting hours almost immediately and for another six months.

This pilot comes in the wake of the closing of a fifth of all courts and tribunals by the government in 2016; the rationale at the time for these closures was that 48% of court buildings were empty at least half the time in 2015. The closures included a large number of magistrates’ courts (including, in London, magistrates’ courts in Feltham, Greenwich, and Tottenham).

The proposals for extended court sitting times have raised serious concern from almost all quarters of the profession. The Chairman of the Bar, Andrew Langdon QC, has said that the extended hours would be “almost impossible” for barristers with child-care responsibilities, and points out that the new sitting hours did not seem compatible with the government’s commitment to improving diversity at the bar and amongst the judiciary.

The president of the Law Society, Robert Bourns, has similarly warned that extended sitting hours could place undue extra pressure on criminal legal aid solicitors who already have to attend police stations at short notice, often at anti-social hours, and have experienced fees being reduced for many years. Bourns points out that “under this new government plan solicitors would be expected to attend court during unsocial hours for no uplift in pay.”

It is interesting that HMCTS has not considered the impact of extended court sitting hours on court users who have child-care responsibilities, nor has anything been said about the cost of extended sitting hours. There is also the matter of court staff, the judiciary, witnesses, jurors and the prison service (among a few) being willing and able to accommodate the extended hours.

An online petition started by Morwenna Macro, a commercial Chancery barrister, has garnered over 5,000 signatures against the proposal.

It does not seem that this scheme is destined for success. Extended sitting hours have never been successful long term in the past and they would depend on a wellspring of goodwill from all court users to make it workable; in the current climate, that seems unlikely. The scheme is being described as improving access to justice for those who work; while it may be that early morning fines courts are workable, it seems unlikely that the criminal justice system and all its cogs will be able to withstand this increase in court hours.

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