Weekly Digest: 15 January 2018
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  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.
It was submitted on behalf of the defendant that, but for the EAW, he would have remained on qualifying bail and would have received credit to be set against his final sentence. It was therefore argued that he should have his sentence adjusted to take account of the days spent on remand awaiting extradition and that a failure to do so would lead to a real injustice. The Court of Appeal, at paragraphs  – , gave the following reasons for declining to amend the defendant’s sentence:
- Parliament made policy choices in approving the regime in the Criminal Justice Act 2003 and had also made it clear that time spent on remand in cases unrelated to the case under consideration should not prima facie warrant any adjustment to the sentence. The cases where the statutory regime did not ensure justice should therefore be rare.
- The situation in the instant case was by no means exceptional. It was not unusual for a defendant to be on remand in relation to one serious charge in circumstances where he would otherwise have been on qualifying curfew in relation to some other, less serious, charge. Where the more serious charge was discontinued, credit was not normally given in relation to sentence on the second charge.
- The time spent on remand pending extradition was for matters which were unrelated to the instant proceedings. During that period, the defendant was generating some credit which he could have set off against any sentence imposed in Italy. There was a lack of clarity about the reasons why he did not seek to have his bail revoked at that point in time. He argued that his legal representatives had made an error in failing to be alert to the point. The court held that this failure did not amount to such conspicuous injustice that it should modify an otherwise lawful sentence where there had been no error on the part of the judge. At the time, there had been no disadvantage to the defendant since he had been building up credit to use in the extradition process or against a sentence in Italy. The injustice only arose when the EAW was withdrawn, seemingly unexpectedly.
- All processes, including criminal sentencing processes, had to have finality attached to them. An injustice was not perpetrated every time a legal representative argued that if they had been better informed, different arguments would have been advanced during mitigation. The system did not ordinarily allow a second bite of the cherry. The instant case therefore did not meet the test of exceptionality.
R v Bourke  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.
The defendant and the victim had been in a relationship that was characterised by the excessive consumption of alcohol which fueled frequent and often violent arguments. On the evening of the offence, the defendant called the police and ambulance services, and told them that he had stabbed the victim with a knife during an argument. She had multiple stab wounds to her neck, stomach and back. He said that the victim had struck him first. Both the defendant and the victim had been drinking heavily.
The defendant was 46 years old with six previous convictions. The pre-sentence report had found a clear pattern of domestic violence established over the course of seven years against the victim; that the domestic violence was linked to alcohol misuse; and that the victim had also been violent towards the defendant. The judge found that the offence fell within category 1 with a range of 9-16 years and a starting point of 12 years. He concluded that there were features relating to culpability and harm which aggravated the starting point which meant that he had to move “quite some way” up the range. He found that the defendant was dangerous, took a starting point of 15 years and imposed a sentence of 10 years’ imprisonment, with an extended licence period of five years. It was submitted on behalf of the defendant that the starting point of 15 years was manifestly excessive, that there was insufficient evidence to warrant the finding of dangerousness, and that an extended sentence should not have been imposed.
The Court of Appeal allowed the appeal. Whilst the defendant’s intoxication was an aggravating factor, the associated medical condition was a mitigating one (he suffered from alcohol dependency syndrome). Whilst previous convictions were an aggravating factor, the absence of any recent relevant convictions was a mitigating factor. The violence perpetrated by the defendant was an aggravating factor but the fact that the victim might have used violence against him was a mitigating factor. Each of those factors had been recognised by the judge. There was no reflection, however, of that balancing in his conclusion that the starting point had to be raised significantly. The definition of a category 1 offence included “sustained or repeated assaults on the same victim”. Care was needed to avoid double counting. Nevertheless, the ferocious and sustained nature of the attack should have led to some increase from the starting point. The appropriate starting point was 13-and-a-half years
The Court of Appeal concluded that was nothing wrong in principle with the judge’s starting point that he could find dangerousness on the basis of a single incident. The judge then identified what he saw as the defining feature of the offence, the infliction of multiple stab wounds to a vulnerable victim who had been rendered helpless. He found that if the defendant was in a future relationship and re-commenced drinking the facts indicated that he would pose a significant risk of committing further serious specified offences to his partner which would lead to death or serious injury. He had been entitled to draw that conclusion, which echoed the pre-sentence report’s findings. The judge had not erred in finding that the defendant was dangerous
The court observed that the judge had not specifically addressed the question of whether an extended sentence was appropriate. There were substantial differences between a determinate and an extended sentence regarding the point in time for automatic release and the intervention of the Parole Board to govern release prior to the date of automatic release. When a court was considering whether a dangerous offender should be subject to one or the other, those differences had to be taken into account. In the instant case, the Court of Appeal concluded that the ferocity of the attack and the number of stab wounds inflicted, the locations of the wounds which were spread all over the victim’s body, the defendant’s persistent alcoholism, and the judge’s conclusion that he was a risk to others all indicated that release should be subject to Parole Board supervision. That pointed towards an extended sentence. The Court of Appeal held, however, that an extension period of the maximum five years was not warranted. The custodial period of his sentence represented time in which the defendant’s conditions could be addressed in a manner that would reduce the future risk and served to limit the need for such a long extension period. Taking into account the defendant’s guilty plea, the court concluded that an appropriate sentence was a term of nine years’ imprisonment, with an extended licence period of three years.
R v Parsons  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  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.
The defendant was 49 and was convicted of possessing indecent images of children. The material involved 172 category A moving images of a child, 7 category B moving images of a child; 2 category C moving images of a child, 144 extreme images and 602 extreme moving images portraying a person performing an act of intercourse or oral sex with an animal and one prohibited image (namely an indecent cartoon image of a child). The appellant admitted that having initially encountered indecent images and movies involving children by accident, whilst searching for adult pornography, he searched for, downloaded and stored material involving children using the “emule” peer to peer internet sharing network. He accepted that he gained sexual gratification from such images and also from images involving animals. He was assessed as being highly sexually preoccupied. He only worked two days a week and spent the rest of his time watching films and pornography. His lifestyle was isolated and revolved around his computer.
In relation to the SHPO, the judge’s view was that the defendant was unlikely to make much of a recovery until he started living a ‘real life’ rather than an online life. To achieve this, the judge considered he should be prevented from using or having access to a computer, except in a public place such as a public library or under the supervision of the police or a probation officer as part of the community programme.
Allowing the appeal, the Court of Appeal observed that in Smith the court expressed general disapproval of blanket bans on internet access and use. The importance of the internet for everyday living had increased considerably since that decision. It was an integral part of social life and commercial transactions, and it was very much encouraged in dealings between an individual and government departments or local authorities. 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
The court also observed that monitoring software could be used. Installation generally required that a device be under the administrative control of a corporate network or that physical and administrative access was provided to the device in question. The software should be updated regularly and tested for compatibility with new versions of operating systems. Given the administrative burdens imposed by installations and the realities of police time and resource constraints, the following approach should be taken: the trigger for installing monitoring software should be notification by the offender to the police of their acquisition of a computer or device capable of accessing the internet. The device should have the capacity to retain and display the internet use history and the offender should be prohibited from deleting it. The device should be made available immediately on request for inspection by the police and the offender should be required to allow any such person to install risk management software if they chose to do so. The offender should be prohibited from interfering with or bypassing the normal running of any such software. The court held that this was a workable and proportionate solution to the questions raised by monitoring software.
If the judge wishes to impose a prohibition on the defendant using cloud storage, the vice against which a prohibition should be targeted was therefore not the default or automatic use of cloud storage but the deliberate installation of a remote storage facility, specifically installed by an offender without notice to the police and which would not be apparent from the device and not intrinsic to the operation of any such device. Any prohibition on encryption software fell to be considered against the realities of the devices available for everyday legitimate use. A prohibition had to be targeted and aimed at the installation of encryption or wiping software on any device other than that which was intrinsic to its operation
The Court of Appeal concluded that the guidance in Smith remained generally sound and should continue to be followed. In certain specific areas, the court observed that developments in technology and changes in everyday living called for an adapted and targeted approach. That was especially so in relation to risk management monitoring software, cloud storage and encryption software
Assaults on Emergency Workers (Offences) Bill 2017-19 (Second Reading)
This Bill, available here, makes provision about offences when perpetrated against emergency workers, and persons assisting such workers; to make certain offences aggravated when perpetrated against such workers in the exercise of their duty; to require persons suspected of certain assaults against such workers which may pose a health risk to provide intimate samples and to make it an offence, without reasonable excuse, to refuse to provide such samples; and for connected purposes.
Magistrates’ Courts (Freezing and Forfeiture of Terrorist Money in Bank and Building Society Accounts) Rules 2017/1290
This instrument creates court rules to underpin the operation of paragraphs 10Q –10Z7 in Part 4B of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001 (as inserted by section 40 of and Schedule 4 to the Criminal Finances Act 2017) which make provision for the freezing and forfeiture of bank or building society accounts, where those accounts contain funds which derive from or are intended to be used for the purposes of terrorism. The Rules come into force on 31 January 2018 and are available here.
Magistrates’ Courts (Detention and Forfeiture of Terrorist Assets) Rules 2017/1296
This instrument creates court rules to underpin the operation of paragraphs 10A –10P in Part 4A of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001 (as inserted by section 39 of and Schedule 3 to the Criminal Finances Act 2017) which make provision for the seizure, detention and forfeiture of terrorist assets. These provisions build on existing powers in Part 1-4 of Schedule 1 to ATCSA to seize and forfeit terrorist cash. The Rules come into force on 31 January 2018 and are available here.
The Proceeds of Crime Act 2002 (Administrative Forfeiture Notices) (England and Wales and Northern Ireland) Regulations 2017 SI 2017/1223
These regulations set out the giving of an account forfeiture notice by a senior officer under section 303Z9 and the giving of a cash forfeiture notice under section 297A of the Proceeds of Crime Act 2002. The Regulations amend the Administrative Forfeiture of Cash (Forfeiture Notices) (England and Wales) Regulations 2015 SI 2015/857 and the Administrative Forfeiture of Cash (Forfeiture Notices) (Northern Ireland) Regulations 2016 SI 2016/70. The Regulations come into force on 31 January 2018 and are available here.
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
These make similar provisions in relation to the giving of cash and account forfeiture notices under paragraph 5A(6) and paragraph 10W(2) of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001. These Regulations also come into force on 31 January 2018) and are available here.
The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) (Amendment) Order 2017
This amends the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 to include two new types of investigations – detained property investigations and frozen funds investigations in Part 8 of the Proceeds of Crime Act 2002 (POCA). The two new types of investigations support the new powers to forfeit listed items and funds in building society or bank accounts in Chapters 3A and 3B Part 5 POCA. The 2015 Order applies the PACE provisions with modifications for search and seizure warrants obtained in confiscation, money laundering and detained cash investigations. The 2017 Order extends these modifications to the search and seizure warrants obtained in the new investigations. The amendments in relation to frozen funds investigations come into force on 31 January 2018; the amendments in relation to detained property investigations come into force on 16 April 2018. The Order is available here.
David Gauke appointed Lord Chancellor and Secretary of State for Justice
David Gauke has been appointed Lord Chancellor and Secretary of State for Justice in the latest Cabinet reshuffle. He is the first solicitor to be appointed to the role
The full piece can be read here.
UK Justice Secretary seeks legal advice over John Worboys’ release
The Justice Secretary, David Gauke, is seeking legal advice on how to prevent the release of the serial sex attacker John Worboys following mass public outcry, the Conservative party chairman said. Brandon Lewis said Gauke, who became Justice Secretary in last week’s cabinet reshuffle, was taking advice on whether to launch a judicial review into the Parole Board’s decision to release the black-cab rapist John Worboys after less than 10 years. “The Secretary of State for Justice will be doing everything he can to make sure this man stays behind bars,” Lewis told BBC1’s Andrew Marr Show, amid reports that Cabinet ministers privately warned Gauke that the decision to release Worboys could be unlawful because of an apparent failure to consult victims.
The full piece can be read here.
Brexit bill leaves a hole in UK human rights
A human rights deficit will be created by the government’s EU withdrawal bill, leaving many different groups in society without adequate protection, leading civil rights bodies warn in a letter published in the Observer. The organisations spell out profound concerns that a raft of rights will be jettisoned with no adequate replacement once the bill becomes law and the UK leaves the EU.
The full piece can be read here.