Weekly Digest: 8 January 2018
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  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.
In conjoined appeals, D1 appealed against his conviction for murder, having been diagnosed with post-traumatic stress disorder at the time of the offence. D2 sought permission to appeal against her conviction for murder and against a life sentence with a minimum term of 19 years’ imprisonment. At the time of the offence, D2 was suffering from personality disorder with anti-social and emotionally unstable personality traits. In considering the conjoined appeals, the Court of Appeal took the opportunity to consider the proper interpretation of s. 54(3) of the Coroners and Justice Act 2009.
The Court of Appeal, in a judgment delivered by Hallett LJ, stated that the potential relevance of mental disorder to each of the elements of the partial defence of loss of control is fact specific. It depends on the nature of the defendant’s disorder, the effect it has on the defendant and the facts of the case.
The final element of loss of control requires the jury to consider whether a person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, might have acted in the same or a similar way to D. Section 54(3) elaborates that the term “in the circumstances of D” is a reference to “all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint”. The court held that the wording of s. 54(1)(c) was clear:
“in assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If, and in so far as, a personality disorder reduced the defendant’s general capacity for tolerance or self-restraint, that would not be a relevant consideration. Moreover, it would not be a relevant consideration even if the personality disorder was one of the “circumstances” of the defendant because it was relevant to the gravity of the trigger. Expert evidence about the impact of the disorder would be irrelevant and inadmissible on the issue of whether it would have reduced the capacity for tolerance and self-restraint of the hypothetical ‘person of D’s sex and age, with a normal degree of tolerance and self-restraint’”.
If the mental disorder has a relevance to D’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3) and the jury will be entitled to take it into account as one of D’s circumstances. The court emphasised that it will be necessary to identify “with some care” how the mental disorder is said to be relevant as one of D’s circumstances. The court also emphasised that it must not be relied upon to undermine the principle that the conduct of D is to be judged against ‘normal’ standards, rather than the abnormal standard of an individual defendant. The court explicitly rejected the argument that if a disorder is relevant to the gravity of the qualifying trigger, and evidence of the disorder is admitted in relation to the gravity of the trigger, the jury would also be entitled to take it into account in so far as it bore on D’s general capacity for tolerance and self-restraint. Whilst the disorder would be a relevant circumstance of the defendant, it would not be relevant to the question of the degree of tolerance and self-restraint which would be expected by the hypothetical person referred to in s. 54(1)(c). The example given by the court of when a mental disorder may be a relevant circumstance is where it is relevant to the gravity of the qualifying trigger. Given that loss of control and diminished responsibility may be pleaded together as alternatives, the court emphasised that the law does not ignore a metal disorder that, through no fault of D’s, renders him unable to exercise the degree of self-control of a ‘normal’ person.
Applying this interpretation to the appeals, D1 was a decorated soldier in the Polish army and a veteran of the Afghanistan war. He was diagnosed as suffering from PTSD. The attack on V was triggered by V’s comments about the Polish army. When D1 tried to change the subject V slapped him on the back of the head and said to him in Polish, “Pour some vodka, cat (or kitten)”, a derogatory term used to refer to fresh recruits to compare them with more established older soldiers. He asked V not to talk that way and told him that he had greater knowledge because he had served in Afghanistan. V flew into a rage and accused D1 and people like him of going to Afghanistan to make money, rape women, and shoot children. D1 lost his temper and attacked V, killing him. The Court of Appeal held that the PTSD could not be relevant to D1’s general capacity for tolerance and self-restraint. Although he did not use the word PTSD, the trial judge directed the jury to assess V’s words and conduct against the background of the relationship between V and D1 and D1’s personal circumstances. In fact, the court stated that the trial judge had been overly generous to D1, as he did not direct the jury to ignore the PTSD insofar as it bore on his general capacity for tolerance and self-restraint.
D2 was diagnosed as suffering from Emotionally Unstable Personality Disorder. She had anti-social and emotionally unstable personality traits and, at the time of the killing, she had an abnormal mental state, i.e. an intense anger related to her personality. The judge directed the jury to take into account all of D2’s circumstances, such as the death of her abusive step-grandfather, the break-up of her relationship with her boyfriend and the threat of eviction, but he expressly directed them to ignore the evidence that D2 was suffering from EUPD which may have made her less able to exercise tolerance and self-restraint than a person of her age and sex. The Court of Appeal, in upholding the judge’s direction and refusing leave, rejected the argument that a distinction exists between a “general” capacity for tolerance and self-restraint from the ability to exercise self-control in the face of particular circumstances. If D2’s condition was as bad as the defence claimed, the court stated that she could have pleaded diminished responsibility.
R v K  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
The appellant first came into contact with the complainant via Facebook in February 2012. Later that month they met twice in person. Five months later, the complainant alleged that the appellant had raped her during their second meeting. In August, a former girlfriend of the appellant alleged that he had raped her the second year. The appellant and the first complainant exchanged a number of Facebook messages after the alleged rape. These included a message the appellant sent to the complainant apologising for something. The complainant had deleted 29 Facebook messages sent and received after the alleged rape took place. The appellant was convicted of the rape of the first complainant and acquitted of the rape of the second.
The deleted messages showed that, although there was a gap in the exchange of messages between the appellant and the complainant after the alleged rape, the messaging resumed. The deleted messages included a request by the appellant for the complainant to resend him her telephone number, and the complainant supplying it and ending her message with kisses. The deleted messages also provided the context for the appellant’s message of apology which, in the context of the edited bundle, could have been construed by the jury as him apologising for something that had happened between them. The unedited messages undermined the complainant’s account and supported the appellant’s version of events.
The Court of Appeal admitted the new messages pursuant to s. 23 of the Criminal Appeal Act 1968. The court held that the full Facebook message exchange provided very cogent evidence both in relation to the truthfulness and the reliability of the complainant. Applying the approach in Pendleton  1 WLR 72, the court was satisfied that the further evidence raised a reasonable doubt as to whether the appellant would have been convicted has it been before the jury. The conviction was therefore unsafe and was quashed.
Fox v Germany  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.
An extradition request was made by a EAW issued by the Public Prosecutor’s Office of Frankfurt am Main, Germany and certified by the NCA. The appellant argued that section 12A had not been complied with, as the competent authorities in Germany had not made a decision to charge or try the appellant. Hamblen LJ observed that in Puceviciene v Lithuanian Judicial Authority  EWHC 1862, Lord Thomas CJ set out the purpose for which section 12A was introduced in the following terms:
“73. … The mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody whilst the alleged crime continued to be the subject of lengthy investigation without decision to charge and try having been made. It was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction. The application of the provisions of section 12A secures that the requesting judicial authority will be in a position to get on immediately with the next step in its prosecution process as soon as the requested person is surrendered. The purpose of section 12A is served by confining it to the issues it actually raises.”
The appellant contended that the only the court was competent to make the decision to try and that this did not occur until it decided to open the main proceedings. It was submitted on behalf of the respondent that the earlier case of Din v Germany  EWHC 475 (Admin) was authority for the proposition that a decision to try could be made by the public prosecutor prior to the issue of any indictment.
In concluding that the Public Prosecutor’s Office was a competent authority for the purpose of section 12A, Hamblen LJ cited Puceviciene in which the court stated that a decision to try is “a decision where the relevant decision-maker (who may be a police authority, prosecutor or judge under the relevant procedural system) has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made”. His lordship gave the following reasons for the court’s conclusion:
(1) Although both EAW1 and EAW2 were issued during the “investigation stage” of the proceedings, it was clear that this stage is not limited to investigatory matters.
(2) During the “investigation stage” the public prosecutor may move for the issue of a domestic arrest warrant and then an EAW. The purpose of seeking a person’s arrest may be “for the purpose of conducting a criminal prosecution”, as was stated to be the case in both EAW1 and EAW2.
(3) Arresting someone for the purpose of a criminal prosecution suggests that a decision has been made to bring a prosecution against that person– i.e. to charge and try that person.
(4) Such an arrest may also be for the purpose of “pre-trial detention”, as was stated to be the case in EAW2. Arresting someone for that purpose suggests that a decision has been made to have such a trial.
(5) The evidence of the appellant’s German lawyer was that before moving for an arrest warrant the Public Prosecutor must have “strong suspicion” based on the evidence gathered that the person has committed the identified offences.
(6) It was rightly accepted that moving for an arrest warrant involves at least a decision to charge.
(7) There was an “absence of anything else in this case” – indeed it was accepted by the appellant’s German lawyer and was accepted by the appellant that the public prosecutor has made a decision to try the appellant.
(8) The preferring of an indictment was clear evidence that a decision to try had been made. That is done during the investigation stage and it is done by the public prosecutor. Before preferring an indictment, the public prosecutor must have made a decision to do so. As stated in Puceviciene, a decision to indict shows “beyond doubt” that “decisions to charge and to try had been taken”.
(9) In relation to EAW1 the further information provided explains that the only reason that “the charge could not be brought yet” (i.e. the indictment could not be preferred) was that the appellant was not available (i.e. the decision to bring the charge/prefer the indictment had been made but was prevented from being brought into effect by the absence of the appellant). As stated in Puceviciene, “that the prosecutor was going to charge and try [the appellant] when he could find him and conclude the procedures” shows “he had made the relevant decisions”.
(10) One would expect a decision to try to be made by a judicial authority which is competent to make that decision.
(11) The public prosecutor is a judicial authority for the purposes of the EAW. The EAWs state that the judicial authority issuing the warrant is the public prosecutor and that the warrant has been issued by “a competent judicial authority”.
(12) There is no provision in the German Criminal Code which states that the public prosecutor is not competent to make a decision to try.
(13) Once a decision to try has been made and an indictment preferred the matter will go to trial unless the Court decides otherwise.
(14) A decision to try may be made even though it has not been formalised, even if it is conditional and even though investigations may be continuing.
(15) As stated in Din at , the trial process commences at the “interim stage” after the indictment has been preferred. At that stage, the only decision to try is that which has been taken by the Public Prosecutor.
(16) If the decision to open the main proceedings was to be regarded as the decision to try this would mean that the decision to try is not taken until long into the trial process. One cannot have a trial process prior to a decision to try having been made.
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