Crime

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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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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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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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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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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How now to spot dishonesty

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

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

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

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

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

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

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

Section 2 notices: here and now?

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

Criminal Justice Act 1987

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

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

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

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

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

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

‘Forthwith’

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

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

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

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

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

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

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

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

Conclusion

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

 

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Rosemary Davidson
Rosemary Davidson
15 November 2017

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

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

 

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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Alex Du Sautoy
Alex Du Sautoy
27 October 2017

Landmark Supreme Court dishonesty ruling

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

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

Background

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

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

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

Judgment

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

Dishonesty test

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

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

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

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

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

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

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

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Glorification of terrorism

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

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

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

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

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

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

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

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

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

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Case report: SFO v ENRC [2017] EWHC 1017

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

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

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

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

Litigation privilege

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

Legal advice privilege

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

Practical application

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

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Imprisonment for Public Protection (IPP)

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

The Statutory Framework

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

Repeal

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

The Challenges

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

James Knights

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

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

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

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

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

Scott Henley-Smith

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

Comment

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

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

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

The background to the Regulations: the European Investigation Order Directive

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

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

European Investigation Orders issued in the UK

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

EIOs issued by a judicial body

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

EIOs made or validated by a designated public prosecutor

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

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

The test for obtaining an EIO

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

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

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

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

Defence rights

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

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

European Investigation Orders executed in the UK

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

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

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

Grounds for refusal

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

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

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

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

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

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

Challenging an EIO

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

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

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Rosalind Earis
Rosalind Earis
10 September 2017

Criminal liability for removing children from school

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

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

Background

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

Section 444(1) of the 1996 Act states:

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

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

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

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

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

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

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

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

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

(iii) Any other interpretation would be too uncertain;

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

Analysis

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

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

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

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

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

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Challenging prosecutorial decisions

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

The background

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

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

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

Article 8

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

The Court’s Decision

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

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

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

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

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

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

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

The future

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

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

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

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

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

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Lucy Organ
Lucy Organ
24 August 2017

Flexible operating hours: HMCTS pilot scheme

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

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

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

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

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

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

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

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

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

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

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

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