Weekly Digest

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12 February 2018

Weekly Digest: 12 February 2018

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

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

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

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

 

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

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

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

 

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

The full remarks are available here.

 

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

The full remarks are available here.

 

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

 

British group living in EU obtain preliminary reference

 

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

 

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

 

 

 

 

 

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6 February 2018

Weekly Digest: 5 February 2018

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

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

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

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

 

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

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

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

 

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

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

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

Michael Bisgrove represented the respondent.

 

R v Darren Osborne (Woolwich Crown Court 2.2.18)

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

 

Justice stalwart Sir Henry Brooke dies at 81

 

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

John Worboys release hearing date set

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30 January 2018

Weekly Digest: 30 January 2018

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

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

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

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

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

 

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

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

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

David Perry QC and William Hays appeared for the respondent.

 

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

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

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

 

 

General News

Urgent review of all rape cases called as digital evidence withheld

 

John Worboys’ release subject to legal challenge

 

Julian Assange asks UK court to drop arrest warrant

 

Law Society takes action over cuts to legal aid fees

 

 

 

 

 

 

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23 January 2018

Weekly Digest: 22 January 2018

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

R v. Lovell [2018] EWCA Crim 19

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

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

 

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

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

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

 

Other News

Former prostitutes to challenge UK law on basis of discrimination

 

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

 

Falling standards in forensic science making miscarriages of justice inevitable

 

Government will not pursue Worboys judicial review

 

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15 January 2018

Weekly Digest: 15 January 2018

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

R v Prenga [2017] EWCA Crim 2149

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

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

 

R v Bourke [2017] EWCA Crim 2150

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

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

 

R v Parsons [2017] EWCA Crim 2163

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

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

 

Legislative developments

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

 

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

 

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

 

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

 

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

 

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

 

Other news

David Gauke appointed Lord Chancellor and Secretary of State for Justice

 

UK Justice Secretary seeks legal advice over John Worboys’ release

 

Brexit bill leaves a hole in UK human rights

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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8 January 2018

Weekly Digest: 8 January 2018

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

R v Rejmanski [2017] EWCA Crim 2061

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

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

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

 

R v K [2017] EWCA Crim 2214

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

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

 

Fox v Germany [2017] EWHC 3396 (Admin)

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

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

 

In the news

More terror offences to be covered by unduly lenient sentence rules

 

John Worboys recommended for release

 

Ignoring women’s needs in custody breaches their rights

 

Huge sums spent on consultants to help deliver digital courts 

 

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19 December 2017

Weekly Digest: 20 December 2017

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

 

 

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

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

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

 

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

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

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

 

General News

Amber Rudd announces new national economic crime centre for UK

 

Scotland Yard carry out urgent review after rape trial collapses

 

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

 

Number of children penalised for knife possession rises 16%

 

British soldiers breached Geneva convention in Iraq

 

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11 December 2017

Weekly Digest: 11 December 2017

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

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

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

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

  

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

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

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

Victoria Ailes appeared on behalf of the interested party

  

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

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

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

Michael Bisgrove appeared on behalf of the interested party

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

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

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

 

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

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

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

 

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

 

In the news

The Lord Chief Justice holds his annual press conference

 

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

 

Council of Europe accepts UK compromise on prisoner voting rights

 

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4 December 2017

Weekly Digest: 4 December 2017

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

 

R v. RJ [2017] EWCA Crim 1943

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

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

 

R v. Daley [2017] EWCA Crim 1971

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

Other News

Lord Steyn died last week, aged 85

Security clampdown at the Hague after Praljak suicide

Man jailed for murdering toddler stepson 50 years ago

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

Scottish politicians to ask ECJ if UK can stop Brexit

 

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26 November 2017

Weekly Digest: 27 November 2017

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

 

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

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

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

 

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

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

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

 

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

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

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

 

Kroslak v Slovakian Judicial Authority (2017), unreported

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

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

 

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

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

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

 

R v Endris Mohammed (Birmingham Crown Court 20.11.17)

The full sentencing remarks of Gilbart J are available here.

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

 

In The News

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

 

Regulator calls for better scrutiny of drugs testing

 

Assisted dying bill passes Victoria’s Upper House

 

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

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19 November 2017

Weekly Digest: 20 November 2017

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

 

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

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

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

 

R v Fletcher [2017] EWCA (Crim) 1778

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

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

 

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

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

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

Martyn Bowyer was instructed for the Respondent.

 

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

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

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

 

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

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

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

 

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

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

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

 

In the news 

Lord Hutchinson of Lullington obituary

 

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

  

Serious Fraud Office charges two Unaoil executives with bribery

 

Calls for radical reform of Scottish system for rape prosecutions

 

Tagging scheme hit by fresh delays

 

 

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13 November 2017

Weekly Digest: 13 November 2017

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

R Mohammed Khaique Zaman [2017] EWCA Crim 1783

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

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

 

R Travis Green [2017] EWCA Crim 1774

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

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

 

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

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

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

 

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

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

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

 

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

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

The full remarks are available here.

 

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

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

The full remarks are available here.

 

In the news

UK prosecutors destroy Assange emails

 

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

 

Facial recognition cameras used at Remembrance Sunday Service

 

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

 

 

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6 November 2017

Weekly Digest: 6 November 2017

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

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

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

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

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

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

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

 

Michalak v General Medical Council [2017] UKSC 71

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

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

 

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

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

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

 

R v Chapman [2017] EWCA Crim 1743

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

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

Louis Mably QC appeared on behalf of the Crown

R v Lewis [2017] EWCA Crim 1734

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

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

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

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

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

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

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

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

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

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

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

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23 October 2017

Weekly Digest: 23 October 2017

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

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

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

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

 

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

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

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

 

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

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

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

 

Armes v. Nottinghamshire County Council [2017] UKSC 60

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

Home Office consultation: Offensive and dangerous weapons new legislation

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

 

Other news

Cherif Bassiouni dies (22 October 2017)

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

#metoo raises awareness (21 October 2017)

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

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

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16 October 2017

Weekly Digest: 16 October 2017

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

R v. The Crown [2017] EWCA Crim 1487

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

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

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

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

 

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

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

 

Other news

UK’s online terror policy could deepen support for Isis

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

The full article can be found here.

Dangerous drivers who cause death to face life sentence

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

The full article can be found here.

Harsher sentences proposed for repeat acid offences

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

The full article can be found here.

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

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

The full article can be read here.

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

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

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

The full article can be read here.

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9 October 2017

Weekly Digest: 9 October 2017

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

Mustafa Kiziltan v. Regina [2017] EWCA Crim 1461

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

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

 

Wang Yam v. Regina [2017] EWCA Crim 1414

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

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

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

 

R v. Mehmet Bala [2017] EWCA Crim 1460

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

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

 

Other news

Child on child sexual assaults soar, police figures reveal

New Court complex planned to bolster City of London post Brexit

Judge cleared of making inappropriate remarks in modern slavery case

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2 October 2017

Weekly Digest: 2 October 2017

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

R v Ray [2017] EWCA Crim 1391

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

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

 

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

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

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

 

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

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

 

Other news

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

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

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11 September 2017

Weekly Digest: 11 September 2017

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

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

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

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

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

Other News

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

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

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

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4 September 2017

Weekly Digest: 4 September 2017

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

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

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

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

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

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

 

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

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

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

 

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

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

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

 

Law Commission Consultation: Sentencing Code

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

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

Other news

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

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

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

 

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