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6KBW
18 February 2018

Weekly Digest: 19 February 2018

This week’s Digest considers a decision of the Divisional Court quashing a conviction on the basis that the evidence on which the conviction was based should have been excluded by the magistrates under s. 78 PACE for being obtained in breach of Code C.

Miller v Director of Public Prosecutions [2018] EWHC 262 (Admin)

The judgment, available here, was handed down by Hickinbottom LJ on 15.02.18.

This issue in this appeal was whether the magistrates should have excluded evidence obtained in breach of PACE Code C; the Court held that the magistrates were wrong not to exclude the evidence, and accordingly quashed the appellant’s conviction. A preliminary issue arose as to whether the Court had jurisdiction to hear the appeal: it was contended that an interlocutory ruling of the magistrates’ court was binding and only challengeable by judicial review. The Court held it did have jurisdiction to hear the appeal.

 

Online courtrooms to pave way for digital justice

 

More victims of modern slavery may get leave to remain

  

Unaccredited labs dealing with digital forensic work

 

Judge refuses to withdraw Assange arrest warrant

 

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Paul Jarvis
Paul Jarvis
14 February 2018

Caparo revisited: Supreme Court clarifies scope of police duty of care

Last week, in a landmark judgment, the Supreme Court held that the police do not have blanket immunity from suit in respect of their conduct in investigating or preventing crime, but owe a duty of care to avoid causing foreseeable personal injury to others in accordance with the ordinary principles of negligence.

In July 2008, a relatively frail lady then aged 76 was knocked to the ground and injured by a group of three men who were struggling with each other.  Two of those men were sturdily built police officers.  The third was a suspected drug dealer.  The lady sued the police in the tort of negligence.  The Recorder held that the police officers had owed the lady a duty of care to prevent injury and they had acted in breach of that duty but they were immune from suit (following Hill v Chief Constable of West Yorkshire [1989] AC 53) because at the time of the breach they had been engaged in the apprehension of a suspected criminal.  The lady appealed the Recorder’s determination.

In February 2014, the Court of Appeal dismissed her appeal (Robinson v Chief Constable of West Yorkshire Police [2015] EWCA Civ 15; [2014] PIQR P14).  Delivering the judgment of that court, Hallett LJ considered that the three-stage test in Caparo (Caparo Industries plc v Dickman [1990] 2 AC 605, 617 – 618) “applies to all claims in the modern law of negligence” (para.40).  That ‘test’ was formulated by Lord Bridge in Caparo and requires (a) that the harm caused to the claimant must be reasonably foreseeable as a result of the defendant’s conduct, (b) that the parties must be in a relationship of proximity, and (c) that it must be fair, just and reasonable to impose a duty upon the defendant.  In consequence, Hallett LJ held that “[t]he court will only impose a duty where it considers it right to do so on the facts” (para.40).  In her judgment “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” (para.46) and so it was in Mrs Robinson’s case.  It was not fair, just or reasonable to impose a duty on the police to an individual such as Mrs Robinson because the police owed a wider duty to the public to prevent and detect crime, and that wider duty was incompatible with the existence of a narrower duty to prevent harm to members of the public when acting in compliance with that wider duty.

Dissatisfied for a second time, Mrs Robinson appealed to the UK Supreme Court and for her it was a case of third time lucky (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4).  The hearing of that appeal took place in July 2017 and judgment was handed down on 8 February 2018.  Lord Reed held that the Court of Appeal’s conclusion that the three-stage test in Caparo applies to all claims in the modern law of negligence “mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists” (para. 21).  Instead, the correct approach to determine whether a duty of care exists in any given case is to look to the established authorities and, in novel situations, to develop the law “incrementally and by analogy” with those authorities.

At common law, public authorities, like the police, are generally subject to the same liabilities in tort as private individuals and that means a police officer can be liable in tort to a person who is injured as a direct result of his acts or omissions.  Referring to Hill, Lord Reed said that the judgment of Lord Keith in the that case was not authority “for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the court of investigating or preventing crime” (para. 55).  On a true reading of Lord Keith’s judgment in Hill, as explained by Lord Toulson in the case of Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732 (para. 37), Lord Keith had simply meant that the general duty owed by the police to enforce the law does not automatically carry with it a private law duty to members of the public.  Whether the police are under a private law duty of care to protect members of the public from personal injury will depend upon the application of the ordinary principles of the law of tort (para. 68).  The sort of policy considerations that were considered by Lord Keith are “unnecessary when existing principles provide a clear basis for the decision, as in the present appeal” (para. 69(1)).

The application of the ordinary principles of the law of negligence was sufficient to place the police under a duty of care to protect an individual from a danger of injury which the police themselves had created, but such a duty was unlikely to exist where the danger of injury came from a third party and not the police, in the absence of special circumstances such as an assumption of responsibility by the police.  In Mrs Robinson’s case, it was reasonably foreseeable that the suspect would resist arrest and attempt to escape and that vulnerable pedestrians could be injured in the ensuing scuffle.  Accordingly, in the opinion of Lord Reed, the police had owed Mrs Robinson a duty of care which they had breached.  For those reasons he allowed the appeal. Lady Hale and Lord Hodge joined in his judgment. Lord Mance and Lord Hughes gave separate judgments concurring in the result of the appeal but expressing reservations about the ease by which the others had minimized the relevance of policy considerations to the issue of whether the courts should recognise the existence of a duty of care on the police towards private citizens in the exercise of their public law powers.

For some considerable time the decision in Hill had been interpreted as offering virtual immunity on public policy grounds to the police for harm caused to private individuals by the police in the course of fulfilling their wider duty to the public to detect and prevent crime.  The effect of Hill was often that under the third part of the Caparo test, the courts declined to find that the police owed a duty of care to private individuals in the position of Mrs Robinson.  Following Robinson, the position has shifted.  Whether the police owe a duty of care to a person in her position will depend not on the Caparo factors but on whether there is established authority that recognizes the existence of such a duty.  Where the facts are novel, the court should seek to draw an analogy with the existing case law where possible, and that may just enable public policy considerations to sneak back into the court’s decision-making process.  On the facts of Robinson, the recognition of a duty of care was straightforward enough but it is not hard to imagine other cases where the court’s task will not be so easy.  Hallett LJ in the Court of Appeal suggested that “the Hill principle” (para. 44) was designed to prevent defensive policing, that is to say the immunity that decision purported to confer on the police was meant to discourage the police from acting too cautiously by, for example, refraining from arresting suspected criminals in the streets in case that endangers the safety of pedestrians like Mrs Robinson.  Whether the erosion of the Hill principle in Robinson will result in a return to so-called defensive policing remains to be seen but as a re-statement of the orthodox principles underpinning the tort of negligence this judgment is welcome.

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6KBW
6KBW
12 February 2018

Weekly Digest: 12 February 2018

In this week’s Digest, we examine two recent Court of Appeal (Criminal Division) judgments. In the first, the Court of Appeal confirmed the scope of the availability of a writ of venire de novo. The second was an appeal under s. 31 under the Proceeds of Crime Act 2002, seeking reconsideration of the amount available under a compensation order.

R v. Bahbahani [2018] EWCA 95 (Crim)

The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 05.02.18.

This was an application for leave to appeal against conviction and sentence. The applicant sought a writ of venire de novo in respect of a conviction in the Magistrates’ Court and contended the sentencing proceedings in the Crown Court were a nullity as they were an abuse of process. Leave was refused. A writ of venire de novo was not available in respect of summary proceedings in the Magistrates’ Court. Further, there was no abuse of process and the recorder had not erred in his application of the correct principles, under s. 10 of the Proceeds of Crime Act 2002, in the calculation of the benefit derived from the applicant’s criminal activity.

 

R v. Mundy [2018] EWCA 105 (Crim)

The judgment, available here, was handed down by Lord Justice Simon on 23.01.18.

This was the Crown’s appeal, under s. 31(1) of the Proceeds of Crime Act 2002 against a refusal of an application pursuant to s. 22 of the same act for reconsideration of the amount available under a compensation order. The appeal was dismissed; the course taken by the judge was properly open to him on the facts, even if his reasoning in reaching that conclusion could have been fuller.

 

R v. Jon Venables, Mr Justice Edis, Central Criminal Court, 7 February 2018

The full remarks are available here.

 

R v. Glen Gibbons, Mr Justice Bryan, Manchester Crown Court, 7 February 2018

The full remarks are available here.

 

Police wrongly pursued retired fire chief rather than investigate claim against fantasist

 

British group living in EU obtain preliminary reference

 

Self-harm amongst prisoners increases as prison healthcare funding is cut

 

Father to appeal against ruling allowing hospital to end son’s life support

 

 

 

 

 

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Ben Lloyd
Ben Lloyd
6 February 2018

The Forum Bar – a new lease of life?

Yesterday Lauri Love won a famous victory in his on-going fight to resist extradition to the United States. In allowing his appeal, the High Court has breathed new life into the ‘Forum bar’, which hitherto had not prevented a single extradition despite being in force since 2013. Two areas of the judgment in particular are worth further reflection: (i) the absence of any belief expressed by a UK prosecutor as to forum; and (ii) the scope of a defendant’s ‘connections with the United Kingdom’.

The forum bar – brief history

Historically, the courts have not concerned themselves with ‘forum’. The question of the most appropriate place for a prosecution to be brought was one traditionally that has been for the relevant prosecuting authorities alone. This changed with the introduction in 2013 of the ‘forum bar’ into the Extradition Act 2003. However, despite the new bar, the Courts have hitherto been reluctant to halt extradition on the grounds of forum. This may be a result of an historical hangover: judges are perhaps understandably reluctant to interfere with prosecutorial decision-making. Indeed, despite high-profile campaigns seeking to bring the forum bar into force, there remained strong opposition to the principle too. The Scott Baker Review concluded that ‘prosecutors are far better equipped to deal with the factors that go into making a decision on forum than the courts.’

The High Court to date has also been reluctant to interfere with first instance decisions on forum. It made it clear in Astrakevic v Prosecutor General’s Office, Republic of Lithuania [2015] EWHC 131 (Admin) that where a judge’s value judgment on whether the extradition would not be in the interests of justice was challenged, an appellate court would not ordinarily reassess all the factual issues or the weight to be given to the various factors.

It may be that in the light of yesterday’s decision the Courts will now pay closer attention to the Forum bar.

Lauri Love

Lauri Love is accused in the United States of a series of deliberate and sustained cyber-attacks on the computer networks of government agencies and private companies. The allegations are serious. There was no dispute in the extradition proceedings that forum was engaged in that a ‘substantial measure’ of Mr Love’s ‘relevant activity’ was performed in the United Kingdom (section 83A(2)(a) of the 2003 Act). The District Judge rejected Mr Love’s arguments in relation to the interests of justice test (section 83A(3)). She also ruled that extradition would not be oppressive by reason of Mr Love’s mental health. These grounds were renewed on appeal, with the High Court concluding that the District Judge was wrong in her decision on these issues. This post focuses only on the Forum bar.

Two aspects of the High Court’s decision on Forum are of particular note and no doubt will be of wider interest to practitioners.

Prosecutor’s belief

Hitherto, the absence of a ‘prosecutor’s belief’ as to whether the United Kingdom is not the most appropriate jurisdiction has been treated by the Courts as a neutral factor, i.e. counting neither in support of, or against, the operation of the forum bar. In Shaw v Government of the United States of America [2014] EWHC 4654 (Admin), the High Court held this factor would only be relevant if a belief had been expressed: ‘The judge has to ask whether there is a belief; but if there is not, then he cannot have any further “regard” to this factor.’ (§48)

This approach has not survived Mr Love’s case, with the High Court concluding that the District Judge was wrong to treat the absence of any prosecutor’s belief as a neutral factor. On the contrary, the absence of any such belief was a factor that favoured the appellant’s case. As the Court held, ‘this silence is a factor which tells in favour of the forum bar’ (at §34).

This aspect of the Court’s decision is likely to pose questions for prosecutors going forward. Often, there is no prosecutor’s belief because there has been no investigation into any allegations in the United Kingdom. However, the decision in Love means that prosecutors are going to have to re-consider their approach: given the remarks of the High Court, domestic prosecutors are going to have to take more of an interest in extradition cases where forum is raised. Far from being a neutral factor, the lack of any involvement of a domestic prosecutor could be taken as a factor in favour of the operation of the forum bar.

Furthermore, prosecutors may feel that in appropriate cases greater use should now be made of prosecutor’s certificates, the effect of which is to require a the District Judge to conclude that extradition is not barred by reason of forum. However, such certificates again require greater involvement of domestic prosecutors, who in the majority of forum cases will not have had any prior involvement.

From a defendant’s perspective, the decision in Love is good news: the absence of the involvement of a domestic prosecutor in an extradition case is not uncommon; however, going forward such a position may well support a defendant’s case. Courts are going to have approach forum on a different basis and prosecutors will now need to reconsider their whole approach to the bar.

Connections to the United Kingdom

More good news for defendants. The Court rejected the notion that the concept of ‘connection’ to the UK was a narrow one. Rather, connection is ‘closer to the notion of ties for the purposes of bail decisions’, whilst not being so ‘elastic’ as to replicate Article 8 of the Convention (§40).

Again, the Court’s emphasis on this aspect of the interests of justice test is noteworthy. Hitherto judges have had a tendency to treat the ‘connections’ limb as a bit of an afterthought, and rarely (if ever) capable of outweighing the other aspects of the bar.

In the light of the decision in Love, judges will no doubt pay closer attention to this important factor.

Conclusion

The High Court in Love has breathed new life into the forum bar. Domestic prosecutors are going to have to engage more closely and judges are going to have to pay greater attention to a defendant’s connections to the UK.

After all, the High Court has issued a timely reminder to practitioners and Courts: the underlying aim of the forum bar is to ‘prevent extradition where the offences can be fairly and effectively tried here and it is not in the interests of justice that the requested person should be extradited.’ (§22)

 

 

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6KBW
6KBW
6 February 2018

Weekly Digest: 5 February 2018

This week’s digest considers two Court of Appeal judgments and a judgment of the Divisional Court. The Court of Appeal held that the Data Retention and Investigatory Powers Act 2014 was incompatible with EU law. The court also granted permission to appeal in a case in which the claimant argues that the blanket prohibition on assisted suicide violates art 8 of the European Convention on Human Rights. The Divisional Court considered whether the defence of self-defence / defence of another is available to a charge of obstructing a constable contrary to s. 89(2) of the Police Act 1996.

Secretary of State for the Home Department v Watson [2018] EWCA Civ 70  

The judgment, which is available here, was handed down by Beatson LJ on 30 January 2018.

The Court of Appeal held that section 1 of the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) was inconsistent with EU law on the basis that it permitted access to retained data where the object sought to be achieved by that access was not restricted solely to fighting serious crime, or where access was not subject to prior review by a court or independent administrative authority.

 

R (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 16

The judgment, which is available here, was handed down by Sir Ernest Ryder on 18 January 2018.

The Divisional Court had earlier declined to issue the declaration of incompatibility sought by the claimant that the prohibition on assisted suicide is incompatible with article 8 of the European Convention on Human Rights (‘ECHR’). The Court of Appeal granted the claimant permission to appeal.

 

Oraki v Crown Prosecution Service [2018] EWHC 115 (Admin)

The judgment, which is unavailable, was handed down by Singh LJ on 17 January 2018.

The appellant was convicted of obstructing a police officer in the course of his duty contrary to s. 89(2) of the Police Act 1996, the magistrates having ruled that he was unable to plead self-defence / defence of another. The Divisional Court ruled that the defence was available as a matter of law and quashed the defendant’s conviction.

Michael Bisgrove represented the respondent.

 

R v Darren Osborne (Woolwich Crown Court 2.2.18)

The full sentencing remarks of Cheema-Grubb J are available here.

 

Justice stalwart Sir Henry Brooke dies at 81

 

Judge agrees to judicial review of ‘cab rank’ rule for unexplained deaths

John Worboys release hearing date set

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Karl Laird
Karl Laird
31 January 2018

Gross negligence manslaughter – an offence in flux 

After a period of relative stability following the seminal judgment of the House of Lords in Adomako [1995] AC 171, gross negligence manslaughter has been considered by the Court of Appeal on a number of occasions during the past 18 months.  In each of these judgments, the court has taken the opportunity to refine the elements of the offence.  This post will consider the four most significant judgments, with the aim of evaluating their impact upon the offence.

How should the jury be directed when assessing whether the defendant’s breach of duty was “grossly negligent”?

There are two relatively recent cases in which the Court of Appeal has considered how the jury should be directed when assessing whether the defendant’s breach of duty was grossly negligent.  In Sellu [2016] EWCA Crim 1716 the defendant was an experienced colorectal surgeon whose gross negligence was alleged to be the cause of the victim’s death. The trial judge directed the jury that their task was not just “to decide whether [the defendant] fell below the standard of a reasonably competent consultant colorectal surgeon, but whether he did so in a way that was gross or severe”.  The defendant was convicted and appealed on the basis that the judge misdirected the jury on the elements of the offence.  In allowing his appeal, the Court of Appeal held that it was incumbent upon the trial judge to assist the jury to identify the line that separates serious or even very serious errors, from conduct which was “truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal”. In the subsequent case of Bawa-Garba [2016] EWCA Crim 1841 the defendant’s conviction was upheld, as the Court of Appeal concluded that the trial judge had accurately brought to the jury’s attention the fact that the prosecution had to make them sure that the defendant’s conduct was “truly, exceptionally bad” before they could find her guilty of gross negligence manslaughter.

The Court of Appeal took the opportunity in Sellu to emphasise two additional points.  First, the trial judge must take steps to ensure that the medical experts do not usurp the function of the jury in determining whether the defendant is guilty.  Secondly, the court considered the issue of causation. The defendant’s gross negligence must cause the death of the victim and it was held that the jury must be directed to consider whether the defendant’s gross negligence occurred after the time that they could be sure that the victim would have survived. If the victim would have died even without the defendant’s gross negligence, then the defendant will not be guilty.

How should the jury assess whether the defendant’s breach of duty posed a serious and obvious risk of death? 

One of the elements of gross negligence manslaughter, as the Court of Appeal confirmed in Misra [2004] EWCA Crim 2375, is that the defendant cannot be convicted unless, at the time of his or her breach of duty, there was a serious and obvious risk of death.  This is an objective assessment and does not depend upon the defendant’s assessment of the risk.  The Court of Appeal has recently considered the question of whether the jury, in considering this element of the offence, are entitled to take into account what the defendant would have known but for his or her breach of duty.  This issue has been considered in two recent cases.  In Rudling [2016] EWCA Crim 741, it was accepted that the defendant GP could not have been aware of the grave nature of the victim’s condition unless she visited him in person.  In upholding the trial judge’s conclusion that there was no case for the defendant to answer, the Court of Appeal stated that “mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation”.  In the subsequent case of Rose [2017] EWCA Crim 1168, this issue was considered by the Court of Appeal more extensively.  The defendant was an optometrist who, during the course of a routine sight test, failed to conduct an internal examination of the victim’s eye, as she was required to do by statute.  Had she done so, she would have appreciated that the victim was suffering from a potentially fatal condition, which did, in fact, lead to his death a number of months later.  Had she conducted the examination in accordance with her statutory duty, the defendant would have appreciated the victim’s condition and referred him for urgent medical treatment.  The trial judge directed the jury that in considering whether the defendant’s breach of duty posed a serious and obvious risk of death, an optometrist who is so negligent that she does not even attempt an internal investigation cannot rely on that breach to escape liability for gross negligence manslaughter.  They could therefore take into consideration what the defendant would have known but for her breach of duty.  The Court of Appeal quashed the defendant’s conviction.  In a judgment delivered by Sir Brian Leveson P, it was held that the failure to examine the back of the victim’s eyes meant that there was the possibility that signs of a potentially life-threatening condition or abnormality might be missed, but his lordship concluded that this was insufficient to found a case of gross negligence manslaughter since there must be a “serious and obvious risk of death” at the time of the breach of duty.  The court concluded that in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty.  The Court of Appeal declined to certify a point of law of general public importance.

Conclusion

Given the fact that gross negligence manslaughter appears to be in a state of flux, it is submitted that an authoritative judgment of the Supreme Court that evaluates the developments that have taken place since the judgment in Adomako would be welcome.  This would ensure there is clarity not just for those who are at risk of committing the offence, but also for the prosecutors who must decide whether to charge individuals with the offence.

Karl Laird is a Fixed-term Fellow and Tutor in Law at St Hilda’s College, Oxford and a future 6KBW pupil. 

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6KBW
6KBW
30 January 2018

Weekly Digest: 30 January 2018

This week’s digest considers two Supreme Court cases and a decision of the Divisional Court. The Supreme Court, in the first case, considered the extent to which a court can rely on information which cannot be disclosed, for public interest reasons, to a person affected by a search and seizure warrant under s. 8 of the Police and Criminal Evidence Act 1984. In the second case, the court considered the correct starting point for calculating a reduction in the term imposed in default for a part payment in respect of a confiscation order. The Divisional Court quashed a decision of Birmingham Coroner not to include investigations into the identity of the perpetrators of the Birmingham pub bombings within the terms of the Inquests.

R (Haralambous) v. Crown Court at St Albans and another [2018] UKSC 1

The judgment, available here, was handed down by Lord Mance on 24.01.18.

The issue on this appeal was the extent to which courts can rely on information which cannot be disclosed to a person affect by a search and seizure warrant issued under s. 8 of the Police and Criminal Evidence Act 1984. There were five issues on this appeal, each of which received separate treatment. In essence, however, the Supreme Court decided that higher court seized of jurisdiction, either as a result of an appeal or application for judicial review, are entitled to rely on information not disclosed to the person affected by such a warrant or order.

Melanie Cumberland appeared for intervening party, the Secretary of State for the Home Department.

 

R (Gibson) v. Secretary of State for Justice [2018] UKSC 2

The judgment of the court, available here, was handed down by Lord Reed on 24.01.18.

The issue in the appeal was whether the basis for calculating any reduction from a sentence imposed in default of payment under a compensation order was the proportion of the part payment as against the sum at the time the order was made, or the net sum (i.e. including interest) at the time the payment was made. On a true construction of the applicable legislation (s. 79(2) of the Magistrates’ Courts Act 1980), the former was the correct basis.

David Perry QC and William Hays appeared for the respondent.

 

R (on the application of Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWHC 56 (Admin)

The judgment, which is available here, was handed down by Simon LJ on 26 January 2018.

Each of the 10 claimants was a relative of a person who died in the Birmingham pub bombings in 1974. An Inquest was ordered, with Sir Peter Thornton QC, the Coroner, ruling that the Inquests would comply with the procedural requirements of Article 2 of the ECHR and would be held with a jury. The Coroner ruled that investigations into the identity of the suspected perpetrators would not be dealt with as part of the Inquests. The court concluded that the Coroner posed the wrong question when he considered whether the identity of the perpetrators ought to be included within the terms of the Inquests.

 

 

General News

Urgent review of all rape cases called as digital evidence withheld

 

John Worboys’ release subject to legal challenge

 

Julian Assange asks UK court to drop arrest warrant

 

Law Society takes action over cuts to legal aid fees

 

 

 

 

 

 

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Simon Denison QC
Simon Denison QC
24 January 2018

Householder self-defence: an issue with continuous incidents?

At a recent trial, the Crown Court had to consider whether the householder amendment to self-defence applied to all force used in a violent incident that began inside a home and spilt outside. 

The law of self defence as it applies in “householder” cases is provided in section 76 of the Criminal Justice and Immigration Act 2008. Section 76(8A) defines the circumstances in which it applies as follows:

“(8A)      For the purposes of this section “a householder case” is a case where—

(a) the defence concerned is the common law defence of self-defence,

(b) the force concerned is force used by C2 while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c) C2 is not a trespasser at the time the force is used, and

(d) at that time C2 believed V to be in, or entering, the building or part as a trespasser.”

The wording of the section, and the Explanatory Notes that accompany it, require that the force used by the defendant (the householder) is used by him when he is in the home (“a building… that is a dwelling”), or partly in the home i.e. on or at the threshold of the home, whether it be at the door or at a window. In a recent trial at Chelmsford Crown Court (R v D1 and D2) the issue arose as to how the jury should be directed if they were to conclude that the violent incident that was the subject of the indictment (“the force used by C2”) may have begun inside the home, but then continued outside it.

The prosecution alleged that the complainant (‘C1’) had gone to the defendants’ home to talk to them to resolve the ill-feeling that had developed between them after a series of fights between their children. C1 was attacked by both defendants, D1 with a machete and D2 with a large knife. The attack started inside their home, and then continued outside it when, after C1 had stumbled out and fallen down the steps, D1 chopped her knee with a machete. C1 suffered serious injuries – several large cuts to her head, chest, hands and her left knee. C1’s brother who had been nearby, went to get help. He returned with C1’s husband (‘C2’). D1 had by then taken hold of a shotgun, and as they approached he shot C2’s  in the chest. C2 died from his injuries.

The defence case was that C1 and C2 had both gone into their home, C1 armed with a machete. C1 attacked D2 with it. D2 and D1 together managed to take it from C1 and force her out of their home. All of C1’s injuries were caused when she was inside their home, in defence of themselves and their children. The shotgun was brought to the scene by C2, who picked it up after they had taken the  machete from C1. D1 managed to take it from him, whereupon C2 went away and came back with C1’s husband. C2 was then armed with another large weapon (D1 couldn’t see whether it was a knife or another gun). C2 smashed the windows of his home and, fearing that C2 was going to go into his home and harm his children, D1 fired the gun.

On a simple reading of the wording of subsection (8A)(b), the “householder” defence could only apply to force used when the defendant concerned was inside the home or on the threshold so that he was partly inside it. This reading would appear to be consistent with the wording in subsection (8A)(d) which requires C2 to believe V “to be in, or entering, the building or part….”. Both subsections appear to be intended to apply only to force used when C2 is inside or at the threshold of the home.

However, such a reading could lead to an absurd result if force is used in a continuing violent incident that begins inside the home, but includes force used, outside it. It could require a different test to be applied to acts of force that are committed in self-defence moments and inches apart either side of the threshold in one continuous incident.

In this case it was argued on behalf of the defendants that this was one continuous incident, and even if the jury were to find that D1 had inflicted injury to C1 when they were both outside the home, and even though he was outside when he shot C2, the “householder” test should apply to all the force used.

The judge concluded that section 76(8A) provides a threshold that has to be met before the householder test can apply to any force used by C2; but once it does apply, it may continue to apply to any force used by C2 in self-defence in the course of that ongoing incident, whether C2 was inside or outside the home when he used it. On the facts of this case he concluded that it applied to all the force found by the jury to have been used in self-defence or defence of another against C1, whether inside or outside the home, as that was a single continuous incident. He found that the shooting of C2, which on the evidence must have been at least a minute and a half after C2 had gone away, was not part of that continuous incident, and therefore, if the jury found that it may have been done in self-defence, the “householder” test did not apply.

It was of course still for the jury to determine in relation to each application of force whether the force used was reasonable in the circumstances.

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6KBW
6KBW
23 January 2018

Weekly Digest: 22 January 2018

This week’s Digest discusses two recent Court of Appeal judgments. The first relates to the admissibility of evidence of a defendant’s bad character under the provisions of s. 101 of the Criminal Justice Act 2003, as well as the correct starting point for sentencing for joint enterprise offences involving a firearm. The second concerns a number of appeals against sentence imposed for offences contrary to s. 12 of the Terrorism Act 2000 on the basis that they were manifestly excessive.

R v. Lovell [2018] EWCA Crim 19

The judgment, available here, was handed down by Treacy LJ on 18.01.18.

This was an appeal against conviction for murder and a renewed application for leave to appeal against a sentence of 25 years’ imprisonment; the appeal against conviction was dismissed and leave to appeal against sentence refused. In relation to the conviction, the appellant contended that the trial judge had been wrong to admit evidence of a conversation that, the Crown contended, was important explanatory evidence under s. 101(1)(c) of the Criminal Justice Act 2003, or formed part of the facts of the alleged offence within s. 98(a) of the 2003 Act. The court held that the trial judge was right to admit the evidence and that the judge’s directions in respect of that evidence had been sufficient. Regarding sentence, the appellant contended that the term imposed was manifestly excessive, as the judge had chosen the incorrect starting point. This was rejected and leave was refused on the basis that the language of paragraph 5 to Schedule 21 to the 2003 Act was sufficient to cover an offender involved in a joint enterprise.

 

R v. Alamgir & Ors [2018] EWCA Crim 21

The judgment, available here, was handed down by Treacy LJ on 18.01.18.

This was an appeal against sentence heard with three applications for leave to appeal against sentence on the basis that the sentences imposed for offences contrary to s. 12 of the Terrorism Act 2000 were manifestly excessive. The offending conduct related to speeches given by the appellant and applicants in support of ISIS. The appeal was dismissed and leave in respect of all the applications refused; the judge had not erred either substantively or procedurally in relation to the sentencing of the defendants.

 

Other News

Former prostitutes to challenge UK law on basis of discrimination

 

Terminally ill man granted leave to appeal against right-to-die ruling

 

Falling standards in forensic science making miscarriages of justice inevitable

 

Government will not pursue Worboys judicial review

 

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6KBW
17 January 2018

No smoke without fire: revisiting the Crown exemption rule

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

The judgment

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

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

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

Commentary

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

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

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

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

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

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

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

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

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

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

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

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6KBW
6KBW
15 January 2018

Weekly Digest: 15 January 2018

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

R v Prenga [2017] EWCA Crim 2149

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

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

 

R v Bourke [2017] EWCA Crim 2150

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

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

 

R v Parsons [2017] EWCA Crim 2163

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

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

 

Legislative developments

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

 

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

 

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

 

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

 

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

 

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

 

Other news

David Gauke appointed Lord Chancellor and Secretary of State for Justice

 

UK Justice Secretary seeks legal advice over John Worboys’ release

 

Brexit bill leaves a hole in UK human rights

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

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6KBW
6KBW
8 January 2018

Weekly Digest: 8 January 2018

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

R v Rejmanski [2017] EWCA Crim 2061

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

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

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

 

R v K [2017] EWCA Crim 2214

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

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

 

Fox v Germany [2017] EWHC 3396 (Admin)

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

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

 

In the news

More terror offences to be covered by unduly lenient sentence rules

 

John Worboys recommended for release

 

Ignoring women’s needs in custody breaches their rights

 

Huge sums spent on consultants to help deliver digital courts 

 

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Disclosure: time to cut the Gordian knot?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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6KBW
6KBW
19 December 2017

Weekly Digest: 20 December 2017

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

 

 

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

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

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

 

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

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

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

 

General News

Amber Rudd announces new national economic crime centre for UK

 

Scotland Yard carry out urgent review after rape trial collapses

 

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

 

Number of children penalised for knife possession rises 16%

 

British soldiers breached Geneva convention in Iraq

 

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

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

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

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

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

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

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

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

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

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6KBW
6KBW
11 December 2017

Weekly Digest: 11 December 2017

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

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

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

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

  

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

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

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

Victoria Ailes appeared on behalf of the interested party

  

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

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

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

Michael Bisgrove appeared on behalf of the interested party

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

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

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

 

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

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

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

 

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

 

In the news

The Lord Chief Justice holds his annual press conference

 

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

 

Council of Europe accepts UK compromise on prisoner voting rights

 

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

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

The trouble with Ghosh

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

The essential criticisms were these:

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

Wider concerns

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

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

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

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

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

Concerns about “dishonesty

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

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

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

The civil cases in overview

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

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

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

The approach for juries following Ivey

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

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

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

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

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

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

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

Concerns addressed?

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

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

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

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

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

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

The issue

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

The judgment

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

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

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

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

Righting another wrong turn?

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

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

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

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

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

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

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

The Ghosh test

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

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

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

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

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

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

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

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

Part II will be published next week.

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6KBW
6KBW
4 December 2017

Weekly Digest: 4 December 2017

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

 

R v. RJ [2017] EWCA Crim 1943

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

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

 

R v. Daley [2017] EWCA Crim 1971

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

Other News

Lord Steyn died last week, aged 85

Security clampdown at the Hague after Praljak suicide

Man jailed for murdering toddler stepson 50 years ago

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

Scottish politicians to ask ECJ if UK can stop Brexit

 

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