6KBW Blog

17 March 2019

Weekly Digest: 18 March 2019

This week’s Digest considers three judgments from the Court of Appeal (Criminal Division).  First, in R v Coker the court considered whether the leading criminal law textbooks were correct that the offences of supplying and of offering to supply controlled drugs could be offered as alternatives on a single charge. Secondly, R v Toner addressed whether under the post-2016 Criminal Procedure Rules historic offences and recent offences should be prosecuted on the same indictment or severed. Thirdly, in R v Williamson the court considered whether a sentence for causing grievous bodily harm with intent was unduly lenient where the trial judge had relied on exceptional features to move the case down from category 1 to category 2 of the sentencing guidelines.

R v Coker [2019] EWCA Crim 420

The judgment of Gross LJ, dated 28 February 2019, is available here.

The appeal turned on the correct interpretation of the offences of supplying and offering to supply controlled drugs contrary to sections 4(3)(b) and 4(3)(c)of the Misuse of Drugs Act 1971 (“the Act”), and whether it was permissible for the trial judge to direct the jury under an “either/or” direction that section 4(3)(c) could be used as an alternative when only section 4(3)(b) was included on the indictment. The Court held that the two sections could not be so used. They created separate offences, and the relevant paragraphs in both Archbold (2019) and Blackstone’s (2019) needed revising to reflect this.


R v Toner [2019] EWCA Crim 447

The judgment, available here, was handed down by Bean LJ on 15 March 2019.

The appeal concerned the correct interpretation of the 2016 Criminal Procedure Rules r.3.21(4): should a trial judge order an indictment be severed where historic offences and recent offences were being prosecuted under the same indictment? The Court held that r.3.21(4) gave trial judges a wider discretion than previously, removing the technical barriers to joinder of counts separated by a number of years. The test is now that where the evidence on one count would be properly admissible on the other as evidence as bad character, the two can be prosecuted on the same indictment. The appeal was dismissed.

Esther Schutzer-Weissman appeared for the Appellant.


R v Williamson [2019] EWCA Crim 259

Judgment, available here, was handed down by Holroyde LJ on 7 February 2019.

D, after discovering the theft of his cannabis crop that he had started to cultivate to help cope with the loss of his wife, sought revenge on the man he thought responsible, Mr Ramshaw. Ramshaw suffered life-threatening injuries. D was sentenced on the basis of his written guilty plea to 4 years’ imprisonment for causing grievous bodily harm with intent. The Attorney General referred the sentence to the Court pursuant to section 36 of the Criminal Justice Act 1988 as unduly lenient. The Court allowed the appeal. While there were a number of significant mitigating factors, the trial judge had erred in not giving due weight to the aggravating factors of the attack. The Court substituted a sentence of 6 years 9 months’ imprisonment.

Paul Jarvis appeared for the Attorney General.



Spring Statement: Justice spending down by over 50% in 13 years


Knife and weapon offences reach highest level since 2009


A former British soldier faces murder charges over the killing of two people on Bloody Sunday in Londonderry in 1972


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Karl Laird
Karl Laird
13 March 2019

Court of Appeal considers approach to entrapment defence

In Syed [2018] EWCA Crim 2809 the Court of Appeal restated the approach that ought to be taken when a defendant applies to stay proceedings as an abuse of process on the basis that he was lured into committing criminal offences by agents of the State.  In doing so, the court considered whether the principles enunciated by the House of Lords in the leading case of Looseley [2001] UKHL 52 are compatible with Article 6(1) of the European Convention on Human Rights (“Article 6(1)”).


The applicant, Haroon Ali Syed, pleaded guilty before HHJ Topolski QC to the preparation of terrorist acts contrary to s. 5(1) of the Terrorism Act 2006 and was sentenced to life imprisonment with a minimum term of 16 years and 6 months. Between 13 April 2016 and the applicant’s arrest on 8 September 2016, Security Service officers posing as “Abu Yusuf”, communicated with the applicant via social media.  The Crown’s case was that during these online conversations, the applicant engaged in what he believed to be the purchase of weapons, a bomb, and target research for an attack in the UK.  The Crown placed reliance upon: (1) a schedule of the online communications between 13 April 2016 and 6 September 2016, running to 876 entries; (2) meetings between “Abu Yusuf” and the applicant on 29 May 2016 and 1 September 2016, together with a 40 second sound recording of the 29 May meeting and an audio recording of the September meeting; (3) the applicant’s application to his bank for a loan on 9 August 2016, which he told “Abu Yusuf” was for the purpose of buying weapons; (4) the applicant’s comments to police officers when he was arrested, that the password for his phone was “ISIS.  You like that?”.  Importantly, the Crown did not rely on any material that was subject to PII, nor did it rely upon any ex parte material in support of its response to any of the arguments advanced on behalf of the applicant.

The defence case was that the applicant had been targeted and groomed online by three named individuals.  These individuals had actively sought to entice the applicant into radical Islam and put him in touch with a role player i.e. “Abu Yusuf”.  The applicant was addicted to violent video games and, when he participated in the online conversations, he neither regarded it as a real plan nor had any intention of committing a terrorist act.  An application was made under s. 8 of the Criminal Procedure and Investigation Act 1996 (“CPIA”) for disclosure relating to the undercover operation.  The Crown stated that there was nothing further to disclose.  The applicant invited the judge to superintend the process and, at the applicant’s request, an ex parte hearing was held.  No further disclosure was ordered.

The applicant applied to the judge for a stay of proceedings and/or for the evidence of the conversation to be excluded pursuant to s. 78 of the Police and Criminal Evidence Act 1984.  He did so on the basis that the offence was brought about by state agents and that he had therefore been subject to entrapment.  In what the Court of Appeal characterised as an impressive ruling, HHJ Topolski QC refused both of these applications.  In doing so, his Honour treated the burden of proof as being on the applicant to demonstrate that he had been lured into committing a criminal offence by agents of the state.

The applicant applied for leave to appeal on the following grounds:

  • The relevant English law on entrapment is derived from Looseley rather than Article 6(1).
  • The jurisprudence of the European Court of Human Rights (“the Strasbourg jurisprudence”) on Article 6(1) now enjoins a different approach to entrapment.
  • The judge applied the common law test in declining to stay proceedings and/or exclude the evidence of the online communications.
  • Had the judge applied Article 6(1), the outcome would or, at least, arguably could, have been otherwise.
  • Applying s. 2 of the Human Rights Act 1998 the judge was prima facie obliged to apply Article 6(1).
  • Looseley remains binding as a matter of domestic law until overturned by the Supreme Court.
  • The Court of Appeal should (a) grant leave to appeal; (b) dismiss the appeal; (c) certify a point of law of general public importance, pursuant to s. 33(2) of the Criminal Appeal Act 1968; (d) grant or refuse leave to appeal to the Supreme Court, which was in a position to consider the continued correctness of Looseley and the safety of the conviction.
  • The applicant’s guilty plea did not prevent such a course from being followed.

The Court of Appeal’s judgment

Dismissing the application for leave to appeal, the Court of Appeal (Gross LJ, William Davis and Garnham JJ) restated the principles which apply when a stay is sought on the basis that the defendant has been lured into committing crimes by agents of the state.  As a preliminary point, the court accepted that the defendant’s guilty plea did not preclude him from now appealing on the issue of a stay. Turning to entrapment, the court stated that the rationale for the recognition of the doctrine of entrapment derives from two principles, namely that the integrity of the court must be maintained and that the purity of the administration of justice must be preserved.  The elements relied upon in considering whether to grant a stay must be linked to the rationale for the doctrine.  The court quoted extensively from Looseley, in which Lord Nicholls observed that the investigatory technique of providing an opportunity to commit crime was intrusive and should not be applied in a random fashion.  Nor should it be used for random “vitue testing”.  In what has become an influential paragraph, his Lordship stated that a useful guide to the meaning of “state-created crime” was to consider:

“… whether the police did not more than present the defendant with an unexceptional opportunity to commit a crime.  I emphasise the word ‘unexceptional’… (emphasis added).”

Lord Nicholls stated that the court must have regard to all the circumstances of the case, including the reason for the particular police operation.  Whilst having reasonable grounds for suspicion is one way good faith may be established, it is not always essential. His Lordship stated that sometimes suspicion may be centred on a particular place, and that random testing may be the only practicable way of policing a particular activity. Reference was made to the leading Strasbourg case of Teixeira de Castro v Portugal (1999) 28 EHRR 101 and it was held that English law was compatible with the principles enunciated by the Strasbourg court.  In relation to whether the subject of the undercover operation must be suspected of committing an offence, Lord Hoffmann in his opinion stated that the requirement of reasonable suspicion does not necessarily mean that there must have been suspicion of the particular person who committed the offence.  His Lordship stated that it was legitimate for the police to provide an opportunity for the commission of an offence which is taken by someone to whom no suspicion previously attached.  The suggestion that the Strasbourg case law dictated a different approach was rejected as depending upon an “excessively literal and technical analysis of some of the language used by the court”.

In the Court of Appeal’s analysis of the most recent Strasbourg jurisprudence, it observed that the Strasbourg court appeared to have held that the burden of proof is on the state to prove that there was no entrapment, provided the defendant’s allegations are not wholly improbable.  In Ramanauskas v Lithuania (2010) 51 EHRR 11 the Strasbourg court also stated that undercover techniques must be kept within clear limits and that a conviction based upon such techniques is acceptable, provided adequate and sufficient safeguards against abuse were in place.  The Strasbourg court also observed that a crucial factor is whether the investigation was “essentially passive”. These points were echoed in Bannikova v Russia (2010) 18757/06, in which the Strasbourg court stated that it would rely on whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence.

Pulling the threads together, the Court of Appeal held that, with the possible exception of the burden of proof, Looseley remains compliant with the requirements of Article 6(1).  The court arrived at this conclusion for the following reasons:

  • The rationale underlying the common law approach and the Strasbourg court’s approach is essentially the same. It involves the integrity of the criminal justice system and the principle that the ends do not necessarily justify the means. The use of undercover techniques does not, of itself, violate the right to a fair trial.  The right to a fair trial must not, however, be sacrificed on the grounds of expediency.
  • Working definitions of entrapment are essentially the same in both approaches. To the extent there are distinctions, they are not material.
  • Efforts to contrast meaningful distinctions between the two approaches on the basis of an unduly literal reading of the language of judgments are misplaced and to be discouraged. When the Strasbourg court referred to state agents acting in an “essentially passive” manner, it could not be taken to mean that they were to be confined to being passive observers only.  Such an analysis would be wholly unrealistic. Whilst it is necessary to guard against random virtue-testing, this does not necessarily require the state to have grounds for suspecting a particular individual.
  • There is no material conceptual difference between the requirements for proper disclosure in English law and the Strasbourg jurisprudence. The fact that s. 7 of the CPIA placed the prosecutor under a continuing duty of disclosure is an important safeguard.

In respect of whether the Strasbourg jurisprudence places the burden of proof upon the prosecution, the Court of Appeal stated that it was not clear from the relevant cases the extent to which this is in fact the position.  The court stated that, since there was no entrapment on these facts, further exploration of this issue would have to await a case where it was necessary for the decision. The court also stated that, since no point was taken below as to whether the undercover operation mounted against the applicant was properly authorised or supervised, this precluded the issue from being raised at the appellate stage.  Applying the principles on entrapment to the facts of the case, the Court of Appeal concluded that the online communication between the applicant and “Abu Yusuf” conveyed the “irresistible inference” that he already had it in mind to commit an offence before contact was ever made with the undercover officer.  There was nothing, said the court, to call into question the good faith of the Crown or to suggest that this operation constituted an example of random “virtue-testing”. There was therefore not even an arguable case of entrapment on the facts.  The Security Service officer had done no more than provide the applicant with an “unexceptional opportunity” to commit the crime and had maintained an essentially passive role throughout his interaction with the applicant.  For example, the applicant had made the loan application without any prompting from “Abu Yusuf”.

The court refused the application for leave to appeal, concluding that there was no arguable case of entrapment on the facts and no arguable case that there is any material difference between the approach in Looseley and the Strasbourg jurisprudence.


As Lord Steyn stated in Latif [1996] 1 WLR 104, the issue of whether the defendant would have committed the particular offence of which he was convicted but for the conduct of state agents poses the “perennial dilemma” of how to draw the dividing line between acceptable and unacceptable police conduct.  The difficulty lies in identifying conduct which is caught by such imprecise words as “lure” or “incite” or “entice” or “instigate”.  The fundamental question is how much of a causal nexus there must be between the defendant’s commission of the offence and the conduct of the state agents.  The delineation between acceptable pro-active conduct and unacceptable “virtue-testing” is difficult to draw with any degree of precision.  The Court of Appeal’s judgment in Syed highlights the contextually sensitive nature of this enquiry. The court’s judgment is helpful in clarifying that the approach taken by the House of Lords in Looseley, in which focus was placed upon whether the defendant was presented with an “unexceptional opportunity” to commit an offence, is compliant with Article 6(1).  As the court recognised, it would be unhelpful to take on overly literal approach to the Strasbourg jurisprudence.  Doing so would, for example, preclude police officers from posing as children on online chatrooms in an effort to uncover those who have a sexual interest in children. Such an approach would be untenable, as it would hinder law enforcement efforts to an unacceptable degree.  As the Court of Appeal recognised, what characterises the approach taken by both domestic courts and the Strasbourg court is flexibility.  For example, failure to have reasonable grounds to suspect the subject of the undercover operation does not necessarily mean that it would be entrapment to present him with an unexceptional opportunity to commit a crime.  The touchstone appears to be whether the state agents played a passive role.  If so, there will be no entrapment.  This is also a question of degree, which highlights the futility of attempting to draw bright lines in this area.

There is an important point that provides the foundation for the Court of Appeal’s conclusion that the process which led to the defendant’s conviction was Article 6(1) compliant.  In Edwards and Lewis v UK (2005) 40 EHRR 24, the applicants contended that they had been the victims of entrapment. Crucially, the trial judge – who decided the issue of entrapment – had seen evidence, withheld from the defence but on which the prosecution relied in the course of a PII heading.  The Strasbourg court found a violation of Article 6(1) on the basis that the procedure adopted by the trial judge to determine the issue of entrapment had paid insufficient attention to the requirements to provide adversarial hearings and equality of arms.  The Strasbourg court accepted that the right to disclosure is not absolute, but stated that the rights of the defence must only be restricted to the extent that this is strictly necessary.  In this case, however, the Crown did not rely on any evidence that was withheld from the defence; there was no PII hearing and no reliance was placed on any ex parte material.  Edwards and Lewis was a case decided before the House of Lords established the governing principles and safeguards which apply to PII hearings in H [2004] UKHL 3.  It is therefore possible that the Strasbourg court would take a different approach today to the one that was taken in Edwards and Lewis.  The emphasis the Court of Appeal placed on the fact there was absolute parity in this case strongly suggests that, in future, the Crown ought to evaluate carefully whether to rely upon ex parte material in a case involving an undercover operation.  Unless this is strictly necessary, compliance with Article 6(1) would appear to demand parity between the prosecution and defence.

As the Supreme Court recognised in Horncastle [2009] UKSC 14, the supranational nature of the Strasbourg court and the fact that English criminal procedure differs so significantly from that in other signatories to the Convention means that there are times when the court pays insufficient regard to how the principles it articulates would apply in the UK.  This is not one of them, however, as there is a convergence between Strasbourg law and domestic law.  There is one respect in which they different, however, namely the burden of proof.  As the Court of Appeal recognised, the Strasbourg court’s case law on this issue is far from clear.  It would therefore have been wrong for a domestic court to pre-empt a conclusive determination from the Strasbourg court on this issue. The Strasbourg court will have to provide clarification, however, which means that this will not be the last time the Court of Appeal has to consider whether domestic law on entrapment conforms with Article 6(1).

Duncan Penny QC and Alison Morgan QC acted for the CPS.

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11 March 2019

Weekly Digest: 11 March 2019

This week’s Digest considers six judgments, one from the Supreme Court and five from the Court of Appeal (Criminal Division). In Konecny, the Supreme Court considered whether an individual who had been convicted in absentia, but with an unqualified right to a re-trial upon such an application, was to be classified as being ‘accused’ with the meaning of s. 14(a) of the Extradition Act 2003 or ‘unlawfully at large’ under s. 14(b) for the purposes of considering the ‘passage of time’ bar to surrender. In R v Squibb Group Ltd, the Court of Appeal (Crim) heard an appeal against sentence and against conviction relating to offences under the Health and Safety at Work Act 1974. In R v Blight the court considered how to assess the value of items salvaged from wrecks in the context of a conviction for fraud. In R v Connor the court was asked whether a Sexual Offences Prevention Order that prevented the appellant from accessing the internet was workable. The issue in R v Wilkinson was whether it was a defence to a conviction upon breach of a non-molestation order that the order itself was unlawful. In R v D the court considered, in the context of a trial for council tax fraud, whether D was under a legal duty to notify her local authority of her residence in a property.

Konecny v District Court in Brna-Venkov, Czech Republic [2019] UKSC 8

The judgment, available here, was handed down by Lord Lloyd-Jones on 27.02.19.

The issue in this case was whether an individual who had been convicted in absentia, but with an unqualified right to a re-trial upon such an application, was to be to be classified as being ‘accused’ with the meaning of s. 14(a) of the Extradition Act 2003 or ‘unlawfully at large’ under s. 14(b) for the purposes of considering the ‘passage of time’ bar to surrender. The court unanimously held that such an individual is to be classified under s. 14(b) and thus that it is only the passage of time since the conviction that is to be considered when considering the passage of time bar.


R v Squibb Group Ltd [2019] EWCA Crim 227

The judgment, available here, was handed down by Leggatt LJ on 26.02.19.

This was an appeal against conviction and sentence for offences contrary to the Health and Safety at Work Act 1974 for failing to ensure the health and safety of both its employees and those not employed by the appellant. The appellant appealed on three grounds against conviction, all of which were rejected by the court; the jury’s verdicts were not inconsistent, and nor could the judge be faulted for the way in which he directed the jury. The appeal against sentence, however, was allowed; medical evidence showed that the risk of harm was extremely low in this case and there was no justification for the judge categorising the seriousness of the harm as so great.


R v Blight [2019] EWCA Crim 280

The judgment of Leggatt LJ, dated 12 February 2019, is available here.

In this possibly unique case, citing no previous authorities, two wreck divers were convicted of fraud through a dishonest failure to disclose the information that they had taken possession of a wreck. Blight was convicted of two counts of fraud. Ingham was convicted of four counts of fraud and an additional offence of possessing criminal property. On appeal both men argued that the appropriate measure of loss could only be calculated by taking into account what fees and award they would have received, and the legitimate owners of the items would have had to pay them, had the two of them salvaged the wreck legitimately. The appeal was dismissed; the correct figure for the assessment of the harm caused by the fraud was the value of the items salvaged.


R v Connor [2019] EWCA Crim 234

The judgment, available here, was handed down by Thirlwall LJ on 26 February 2019.

The appellant sought an extension of time to appeal the terms of a Sexual Offences Prevention Order (‘SOPO’) and for permission to appeal the terms of the order. He had been convicted of a number of counts of voyeurism, possession of extreme pornography, and possession of an indecent photograph of a child, and sentenced to a total of 16 months’ imprisonment. He was also given a SOPO which severely restricted his access to the internet. The appeal was allowed. The terms of the order were unworkable and it was not the fault of the appellant that the appeal was out of time. The order was varied to better reflect the appellant’s situation while allowing for the protection of the public.


R v Kirby [2019] EWCA Crim 321

The judgment, available here, was handed down by Singh LJ on 21 February 2019.

The case turned on whether it was a defence to a conviction of breach of a non-molestation order, given to the appellant by the High Court, that the original applicant for that order had no standing to do so. The appellate court held that it was not a defence; the non-molestation order stood as a court order and had to be obeyed until and unless it was revoked.

Dan Pawson-Pounds appeared on behalf of the Crown.


R v D [2019] EWCA Crim 209

The judgment, available here, was handed down by Davis LJ on 5 February 2019

In 2008 D told her local authority that she had moved out of her house, leaving only her tenant, and so applied for a 25% single person council tax discount. The prosecution case was that she was and always had been since 2008 resident in the property and was engaged in council tax fraud. The prosecution sought to argue a specific count that D was guilty of fraud for dishonestly failing to notify the local authority of her continued residence. However, the Court held that no such duty to notify the local authority existed. The appeal was dismissed.




Lord Chancellor dismisses CBA’s Crown Court concerns


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Crown Courts obstructed by further IT failures


Compensation boost for crime victims who lived with attacker



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Beware, lest your cause be criminal

Recent decisions of the Supreme Court and Court of Appeal have clarified the definition of a ‘criminal cause or matter’ for the purpose of section 18(1) of the Senior Courts Act 1981. Practitioners instructed to challenge a judicial review determination in a case arising from, or connected with, criminal proceedings may wish carefully to examine these decisions to avoid pursuing an incorrect avenue of challenge which would lead to the dismissal of their appeal for want of jurisdiction.

Section 18(1) provides: ‘No appeal shall lie to the Court of Appeal – (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter…’. The effect of this provision is that the Court of Appeal has no jurisdiction to entertain an appeal in a ‘criminal cause or matter’, except where specifically provided for, such as in cases of contempt of court or in applications for habeas corpus. An appeal in such a case would need to proceed directly to the Supreme Court upon the High Court certifying that a question of law of general public importance is involved in the decision (section 1 of the Administration of Justice 1960).

Recently, the Supreme Court considered the definition of ‘criminal cause or matter’ in R (Belhaj) v Director of Public Prosecutions [2018] 3 WLR 435.  The issue in the appeal was whether judicial review proceedings, which sought to challenge a decision by the Director of Public Prosecutions not to prosecute, were ‘proceedings in a criminal cause or matter’within the meaning of section 6(11) of the Justice and Security Act 2013.

The Court held that the expression ‘proceedings in a criminal cause or matter’ includes proceedings by way of judicial review of a decision made in a criminal cause according to their ordinary and natural meaning, and nothing in the context or purpose of the legislation suggests a different interpretation (Lord Sumption, §15). Such a cause would include a challenge to a decision to prosecute or not to prosecute, or an extradition case.

Subsequently, the Court of Appeal (Civil Division) in McAtee v. Secretary of State for Justice [2018] EWCA Civ 2851, held that a challenge by an individual to the operation of his licence conditions was a criminal cause or matter and accordingly the Court did not have jurisdiction to entertain it. The Court (Leveson PQBD, Davis LJ and Lewison LJ) explained (at §41) the key principles to be derived from the decision of the Supreme Court in Belhaj ,as follows: 

‘(1) For the purposes of s. 18 of the Senior Courts Act 1981 a broad meaning is to be given to the phrase “criminal cause or  matter”.

(2) The phrase applies with regard to any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises.

(3)  A decision on a matter which is collateral to the exercise of criminal jurisdiction will not necessarily be a decision in a “criminal cause or matter.”

(4)  A “matter” is wider than a “cause.”

(5) It is necessary to focus on the nature and character of the underlying litigation in which the matter arises.

(6)  Judicial review is not to be regarded as inherently a civil proceeding. It depends on the subject matter whether or not it is so in any given case.’

The Court in McAteee emphasised (at §47) that where this particular jurisdictional issue arises, a careful individual appraisal remains necessary by reference to the circumstances of each case.  The Court also underlined (as had Lord Sumption in Belhaj (at §20)) that it is not the law that just because the underlying proceedings are criminal in nature then any decision or step thereafter taken which has some sort of connection with those criminal proceedings is necessarily of itself a criminal cause or matter.

As for Mr McAtee’s appeal, the Court held that it was clearly a criminal cause or matter. The fact that Mr McAtee was seeking a declaration of incompatibility did not of itself mean that the case was not criminal: he was seeking a declaration in the hope of effecting a change to the licence provisions to which he was subject. To focus solely on the relief sought would depart from the requirement to focus on the underlying subject matter. The licence provisions were not simply to do with the administration of the sentence; both the licence and the licensing regime were a fundamental part of the sentence imposed by the judge. Mr McAtee was challenging the legality of an aspect of his sentence and he only had standing to do so because he was subject to the licence regime as part of his sentence. Thus, the subject matter of both the underlying proceedings and the judicial review claim was criminal.

It is clear that the Courts will be approaching the question of whether an appeal is a ‘criminal cause or matter’with renewed stringency in light of the decisions in Belhaj and McAtee. It may not be safe for practitioners to assume – without careful consideration of these judgments and the facts of their particular case – that there is a safe route to the Court of Appeal for challenges with a criminal flavour, even if in previous instances the Court has accepted jurisdiction.

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24 February 2019

Weekly Digest: 25 February 2019

This week’s Digest considers four judgments from the Court of Appeal (Criminal Division). In R v Cheeseman the court considered whether the householder defence was available to a soldier who stabbed a fellow serviceman in their army garrison. The question in R v Towers was whether the appellant’s conviction for joint enterprise murder caused a substantial injustice in the aftermath of the Supreme Court’s judgment in R v Jogee. In R v Yaryare the court on an Attorney General’s reference was asked whether two sentences for attempted murder were unduly lenient . Finally, in R v Fulton, the court considered whether a money launderer could be said to have benefitted personally from the approximately £20 million he laundered through his firm’s account.

R v Cheeseman [2019] EWCA Crim 149

The judgment of Lord Burnett of Maldon CJ, dated 13 February 2019, is available here.

The appellant was prosecuted for attempted murder and wounding with intent after stabbing a fellow serviceman in their Army accommodation. At a court martial the Board acquitted him of the former and convicted him of the latter. In this appeal against his conviction he argued that he could rely on the self-defence “householder defence” contained within section 76 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”). The appellate court held that while the judge at court martial had erred in law in dismissing the householder defence, this did not make the conviction unsafe, as the appellant did not genuinely believe that it was necessary to use force to defend himself.


R v Towers & Anor [2019] EWCA Crim 198

Judgment, available here, was handed down by Sir Brian Leveson P on 20 February 2019.

Towers, Hawkes and Curtis were convicted of murder and wounding with intent in 2007. Towers was sentenced to a minimum term of 13 years, and Hawkes 16 years. Curtis was sentenced to life imprisonment with a minimum term of 17 years. The Criminal Cases Review Commission referred the murder conviction of Towers to the court on the basis of the change in the law brought about by R v Jogee [2016] UKSC 8 and R v Johnson [2016] EWCA Crim 1613. The sentence of Hawkes was also referred on the basis that the trial judge failed to give credit for the relevant number of remand days. This was not disputed. Towers’ appeal against his murder conviction was dismissed; it was open to the jury to conclude that he had the requisite intention to cause serious harm, and so the substantial injustice test set down by R v Johnson was not met.


R v Yaryare & Anor [2019] EWCA Crim 78

Judgment was handed down by Davis LJ on 25 January 2019.

The Attorney General referred two cases to the court on the ground that the sentences were unduly lenient. Both offenders, Yaryare and Hassan, were convicted in October 2018 on a number of counts of unlawful violence, public disorder and attempted murder arising out of a number of violent incidents in central Leicester. Yaryare was sentenced to thirteen and a half years for the attempted murder while Hassan received thirteen years. The court upheld the Attorney General’s reference with respect to Yaryare only, substituting a sentence of seventeen and a half years.


R v Fulton [2019] EWCA Crim 163

Judgment, available here, was handed down by Thirlwall LJ on 15 February 2018.

The appellant was convicted of conspiracy to disguise, convert or transfer criminal property contrary to s1(1) of the Criminal Law Act 1977. He was sentenced to four and a half years’ imprisonment and made subject to a confiscation order in the sum of £104,228, to be paid within six months. He appealed against that confiscation order on the grounds that he had not benefited from his criminal conduct. The appeal was dismissed; while the appellant had no legal interest in the account through which he laundered the money, his criminal conduct meant that he could be said to have obtained the money and so benefited from it.



Shamima Begum to appeal to Special Immigration Appeals Commission


Councils call for powers to tackle ‘lawless’ shisha bars


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David Perry QC
Tom Williams
David Perry QC and Tom Williams
20 February 2019

Casement and Capitol Hill: on grammar

July 1916. Britain is at war. The detonation of 19 charges buried in mines dug by British tunnelling units under the German trenches has recently marked the beginning of a battle on the banks of the Somme. In London, two figures steal across Chancery Lane and into the Public Record Office. Once they have dusted off two rolls of medieval parchment, they pore over the faded Norman French with a magnifying glass. Three words in particular obsess them: ‘ou par aylors’ (in English, only two: ‘or elsewhere’).


Sir Roger Casement, born in Dublin in 1864, fights against human rights abuses whilst working for the Foreign Office in the Congo and the Amazon Basin; increasingly disillusioned with the British Empire, his commitment to Irish nationalism grows in fervour. After the outbreak of war, he encourages Irish prisoners of war in Germany to join an Irish brigade, funded and armed by the Germans. In the early hours of 21 April 1916, three days before the Easter Rising, he steps off a U-boat in County Kerry; shortly afterwards, he is arrested, brought to the Tower of London, and stands trial for treason before Lord Reading CJ and Avory and Horridge JJ: R v Casement [1917] 1 KB 98.

At trial, the defence submit that the indictment does not disclose an offence known to English law, or, alternatively, that there is no evidence before the jury that could prove the offence with which Casement is charged. The relevant part of the Treason Act 1351 (25 Edw 3 St 5 c 2) provides that a person is guilty of treason if he is:

‘… adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere’

There is no question that Casement has been ‘adherent to the King’s enemies’: that much is clear. The difficulty is whether he can be guilty of the offence if he did so ‘elsewhere’—on German soil. The confidence the commas in the statutory language give the modern reader is illusory, as Lord Reading CJ identifies:

‘I have looked at a number of copies, reproductions of this Act, in the revised statutes and elsewhere … and I have found that the commas vary in almost every case; and apparently, according to the interpretation that the author wished to give, he has inserted the commas. You can take up some authors and you will find the commas that make it so plain that you wonder that there can be any dispute about it; you can take up another which makes “aiding and comforting” run on to the “elsewhere” without a comma. So I think we have to start with this, that commas have no place in the discussion before this Court.’

Lord Reading CJ reiterates in his judgment that ‘we must construe these words … without reference to commas or brackets, but merely looking to the language’. He concludes that ‘giving to them aid and comfort’ should be read as a parenthesis; that ‘or elsewhere’ applies to adhering to the King’s enemies; and that Casement can be guilty of the offence in law. He finds authority for his view in Sir Matthew Hale and William Hawkins; in the wording of the Treason Act 1543 (35 Hen 8 c 2); and, more recently, in Mulcahy (1868) (Willes J, obiter) and Lynch [1903] 1 KB 444 (Lord Alverstone CJ, although with no reasoned ruling).

After being directed in those terms by Lord Reading CJ, the jury convict Casement of treason. He is sentenced to death. He appeals. In the course of argument before five judges in the Court of Criminal Appeal, there is the following exchange between Casement’s counsel and Darling J:

Sullivan: Has your lordship the Third Institute before you?  

Darling J: No. I have a print of the statute. My brother Atkin and I have been to the Record Office, and we have read the original of this statute in Norman French, and, more than that, we have compared it. 

Sullivan: Compared it with the reproduction?  

Darling J: No, compared it with the Parliamentary Roll of the same date, which probably was written rather before it; and we carefully observed the writing and the punctuation, if that is worth anything.’

Darling J explains that he and Atkin J (later Lord Atkin) have found no brackets or commas in the Norman French. It is no surprise, incidentally, that there are no brackets: they have not yet been invented. When they come into use, parentheses will at first be inverted, the text they book-end will usually be underlined, and they will sometimes known by the name given to them by Erasmus )lunulae: little moons(.

The two King’s Bench judges have, though, found what they call ‘transverse lines’ in the manuscript: on the parliamentary roll, one such mark is found before ‘or elsewhere’; the statute roll, they explain, is less clear, as in this version there is a physical break in the fabric of the parchment before the ‘or’, a crease caused (Darling J surmises) from nearly six centuries of folding. Atkin J observes that a line must be equivalent to a comma. Serjeant Sullivan responds:

‘I submit you cannot draw any inference from punctuation. The whole matter will have to be determined without any theory as to punctuation arising from a fortuitous circumstance which is not the same in the two rolls, and, at all events, when your lordships are dealing with a penal statute, I humbly submit that crimes should not depend on the significance of breaks or of commas. If a crime depended on a comma, the matter should be determined in favour of the accused, and not of the Crown.’

Lawrence J’s acerbic and off-the-cuff response to Serjeant Sullivan is that if he were able to ‘give an intelligible reading to the words disregarding them, then that might be so’.

The court does not ask to hear from the Attorney General, F.E. Smith. The appeal is dismissed: and so it is said that Casement is hanged by a comma. Strangely, notwithstanding Darling and Atkin JJ’s clandestine inspection of the parchment rolls, there is no reference to the transverse lines their efforts uncover anywhere in the judgment. Instead, the Court of Criminal Appeal’s opinion broadly follows Reading CJ’s reasoning; concludes that as a matter of principle the King’s subject ‘is the King’s liege wherever he may be’; and confirms that they would not ‘cavalierly’ set aside the learning of Sir Matthew Hale, William Hawkins, or even the sometimes-maligned Sir Edward Coke.


20 January 2009. Capitol Hill, Washington. The temperature is still sub-zero. Barack Obama is taking his inaugural oath on a velvet-covered Bible, first used at Lincoln’s inauguration in 1861, held in the (gloved) hands of his wife, Michelle. Chief Justice Roberts (against whose confirmation Obama voted four years earlier) is administering the oath. The two men trip over each other’s words. Although it is not clear whose fault this is, there is no doubt that the ‘faithfully’ in the wording stipulated by the Constitution ends up in the wrong place.

Steven Pinker wonders whether the movement of the adverb from its hallowed constitutional position is Roberts’ ‘inner copy editor’ taking over, as the oath splits a verb (‘will faithfully execute’): in Pinker’s view, this convention (more usually restricted to splitting infinitives) is no more than ‘a thick-witted analogy to Latin’, and ‘there is not the slightest reason to interdict adverbs’ in this way (‘Oaf of Office’, New York Times, 21 January 2009).

Whatever the reason for it, the view of constitutional scholars is that such an error does not, in fact, particularly matter:

(1) Article I of the Twentieth Amendment provides that Obama became president at noon (a development which followed the transfer of power of Herbert Hoover to Franklin D. Roosevelt in the midst of the Great Depression: the consensus was that it took far too long).

(2) The oath had gone wrong in the past, with the incoming president in question promising (with a hint of unintended irony) to ‘maintain’ rather than ‘protect’ the Constitution, with no attempt to correct it in a second ceremony (Hoover again: he had, though, been led astray by Chief Justice Taft).

(3) Although Article II of the Twentieth Amendment requires the oath to be taken before the new president ‘enter on the Execution of his Office’, an earlier president (George Washington, this time) delayed it to give his eighteenth-century congressmen the time to travel to New York City.

Chief Justice Roberts, though, takes no chances: he re-administers the oath—correctly this time—in the Oval Office the following day. Roberts asks the new president if he is ready. Obama: ‘I am. And we’re going to do it very slowly.’


In law, grammar matters: it goes hand in hand with clarity, instils confidence, and mitigates the dangers of unintended ambiguity. Both Casement and the incident on Capitol Hill show, though, that grammar is not the same thing as arid pedantry: as the Oxford English Dictionary explains, grammar is ‘the whole system and structure of a language’. Darling J was careful not to appear to found the decision in Casement on a recondite punctuation mark, although history remembers it otherwise: as a case of capital importance decided on a comma. Similarly, remaining on the safe side on Capitol Hill means adhering carefully to the grammar of the Constitution, even if its language may (on one view at least) disclose a grammatical infelicity.

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17 February 2019

Weekly Digest: 18 February 2019

This week’s Digest considers three judgments. In R v D the Court of Appeal considered the definition of a foldable pocketknife under section 139(2) of the Criminal Justice Act 1988, while in R v LG  the same court assessed whether sentences passed for historic sex crimes should have taken into account the appellant’s relative youth at the time of the offences. Finally, in Douherty v The Chief Constable of Essex Police, the High Court considered whether a County Court judge should have adjourned proceedings for a young appellant to seek legal representation for his committal hearing despite the appellant’s expressed wish to continue unrepresented.

R v D [2019] EWCA Crim 45

The judgment of Simon LJ, handed down 15 January 2019, is available here.

At trial the defendant was charged with having an article with a blade or a point in a public place without lawful excuse, contrary to section 139(1) of the Criminal Justice Act 1988. The article in question was a foldable cut-throat razor. The judge held that it was excluded from section 139(1) by sections 139(2) & (3), which create an exemption for folding pocketknives with a cutting blade of less than 3 inches. The prosecution appeal was successful. The razor was not a pocketknife.


R v LG [2019] EWCA Crim 109

The judgment of Simon LJ, handed down on 16 January 2019, is available here.

The appellant was convicted of 14 historic sexual crimes against two young girls. The sentence passed included custodial periods of 12 years consecutively for the offences against each victim, so 24 years custody in total, with an extended licence period of two years. He appealed against his sentence. The appeal was allowed to the extent that some further reductions should have been made given that the appellant himself was under 18 at the time of many of the offences. The Court substituted a sentence of 18 years.


Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55

Judgment was handed down by Davies LJ on 30 January 2019.

The appellant appealed as of right against an order committing him to prison for 28 days, suspended for a period of 12 months, for breach of an injunction. He had represented himself at the committal hearing. The appeal was allowed. The judge had failed to adjourn the proceedings to permit the appellant to obtain legal aid and representation, advise the appellant of his right to remain silent, warn him of the risk of self-incrimination, and permit him to find representation to enable proper mitigation to be made on his behalf.



Supreme Court opens applications for new President and Justices


ISIS bride asks to return to the UK


Chair of the Criminal Bar Association demands more support for women barristers




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Simon Ray
Simon Ray
13 February 2019

UK Anti-Corruption Strategy - one year on

What action has been taken since the launch of the UK anti-corruption strategy in 2017? Simon Ray discusses the ‘year one update’ reviewing progress so far and considers what developments practitioners can expect to see in 2019.

What has been the impact of the strategy so far?

The strategy was launched in 2017. It is a five-year plan (2017–22) designed to provide a framework to guide the government’s anti-corruption policies and actions. The ‘year one update’ is the first published review of the progress achieved by the strategy.

The aims of the strategy are wide in scope and the update provides a review of six key topics and objectives:

  • reducing the insider threat in high-risk domestic sectors
  • the UK as an international finance sector
  • the promotion of integrity across the public and private sector
  • reducing corruption in public procurement and grants
  • improving the business environment globally
  • work with other countries to combat corruption

The update acknowledges that:

‘2018 has been primarily about laying the groundwork for the action we are planning to take…Work has been scoped, operational and delivery plans devised, resources secured, infrastructure put in place and personnel hired. The impact and effectiveness of this will not be known for some time…’

That said, among the prospective aims and objectives cited in the update, it is possible to identify certain tangible developments—for example:

  • in 2018 and for the first time in ten years, the Financial Action Task Force assessed the UK and found that the UK has the strongest anti-money laundering and counter terrorist finance controls of any country assessed to date
  • the Serious Fraud Office’s (SFO) funding model was reviewed and its core funding was increased from £34m to nearly £53m per year. In addition, the SFO will continue to have access to reserve and ‘blockbuster’ funding
  • as part of the goal of achieving greater transparency over who owns and controls companies and other legal entities, the Registration of Overseas Entities Bill was published in draft in July 2018. The Bill will establish a public register of beneficial ownership of overseas legal entities owning UK property. The Bill is due to be introduced to Parliament in 2019 with a view to establishing the register in 2021
  • a multi-agency team (including the National Crime Agency (NCA), the Financial Conduct Agency, HMRC, City of London Police, Crown Prosecution Service (CPS), Home Office and the SFO) is designing and building the new National Economic Crime Centre (NECC). The appointment of a Director General of the NECC is expected early in 2019
  • since the coming into force of the relevant parts of the Criminal Finances Act 2018, three Unexplained Wealth Orders (UWOs) have been granted. The first, in February 2018, related to two properties worth more than £22m. A UWO requires a person who is politically exposed or is reasonably suspected of involvement in, or being connected to a person involved in, serious crime to explain the nature and extent of their interest in particular assets and explain how those assets were obtained

Of particular interest to criminal law and asset recovery practitioners may be the announcement that in 2018, the UK became the ‘first and to date only country in the world to introduce new principles on governing compensation to overseas victims of bribery, corruption and other economic crime’. The update cites a case study of a Civil Recovery Order involving Chad and states that:

‘In 2018 we introduced the Compensation Principles Agreement between the CPS, the NCA and the SFO. This establishes a common framework to identify cases where compensation is appropriate and to ensure swift action in such cases to return funds to the affected countries, companies or people… [in 2018] the SFO successfully obtained a civil recovery order to the value of £4.4m which represented the proceeds of corrupt deals in Chad. Subject to a potential appeal, [the Department for International Development], which is already investing in humanitarian programmes in Chad, is looking at how the money can best be returned for the benefit of the people of Chad.’

What have been the challenges to progress?

In his foreword to the update, the Prime Minister’s Anti-Corruption Champion, John Penrose MP, acknowledged the need, ‘…perhaps, to reset the UK’s public anti-corruption debate, which currently focuses more on the extreme wealth and superficial glamour of international money-laundering, at the expense of equally serious but grittier threats, for example from criminals trying to corrupt public officials or win contracts through bribery’.

Not mentioned in the update, but potentially linked, is the difficulty that the prosecuting agencies have sometimes encountered in persuading juries in this jurisdiction to convict in cases involving allegations of historic overseas corruption. It is impossible to divine a general theory to cover all such cases, but a perceived remoteness of the criminality in geography and time may play a part. If the UK’s commitment to remaining ‘in the vanguard…’ of an international commitment to anti-corruption is to be backed by effective domestic enforcement, finding a way to speed up the time it takes to investigate and make charging decisions in corruption cases would be a very positive development.

The update does acknowledge, implicitly at least, the tension between combatting overseas corruption and allowing UK companies to remain competitive abroad. In August 2018, the Prime Minister announced an initiative to strengthen support to UK companies, ‘so that they can operate and succeed with integrity’. The new Business Integrity Initiative is ‘designed to provide new practical guidance to help companies overcome barriers to doing business in frontier markets, including guidance on dealing with requests for bribes and human rights issues in supply chains’.

What is the impact of Brexit on progress in this area?

To state the obvious, the impact of Brexit remains to be seen. The report optimistically states that, ‘Brexit gives us the unique opportunity to position ourselves as a place to do business with integrity’. The conclusion to the review of ‘the UK as an international finance centre’ observes that, ‘the integrity of the UK as a global financial centre is essential to our long-term reputation and prosperity, especially as we become an independent trading nation’. The aim is to attract, ‘high-quality investment to the UK as we are increasingly seen to be a reputable place to do business’. The challenge may be in maintaining these aims in the face of post-Brexit demands to reduce regulation.

In addition, it is not yet clear what will replace the current framework for judicial and law-enforcement cooperation within the EU.

What are the priorities for 2019 and what developments can practitioners expect to see?

The update lists the following as priorities for 2019:

  • prosperity—pressing the case that combatting corruption is critical to a nation’s prosperity
  • increasing the UK’s hostility to illicit finance and beneficial ownership
  • strengthening the evidence base for anti-corruption
  • continuing to secure a more ‘joined-up’ and strategic approach to tackling corruption in critical domestic public sectors (prisons, borders, policing, defence and local government)
  • international partnership

Practitioners can expect to see the continued and increased use of UWOs, an increased emphasis on company beneficial ownership transparency both in the UK and abroad, and perhaps an increase in enforcement action against what have been described elsewhere as ‘professional enablers’ of financial crime and money laundering.

This article was first published on Lexis®PSL Corporate Crime on 18 January 2019.

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12 February 2019

Weekly Digest: 11 February 2019

This week’s Digest considers five judgments, four of the Court of Appeal (Criminal Division) and one of the Divisional Court. R v A considered the extent to which time spent on remand in local authority accommodation can be taken into account when passing sentence; in R v Smythe, the Court considered an appeal against sentence imposed for offences of causing or allowing physical harm to a child; the issue in
R v Briddle was whether the lack of an intermediary rendered the appellant’s conviction unsafe; the Court in R v Maxwell considered an appeal against sentence imposed for an offence contrary to s. 20 of the Offences Against the Person Act 1861; and, finally, in R (Lyons) v CCRC, the Divisional Court considered whether the CCRC was right to refuse to refer the claimant’s convictions to the Court of Appeal.

R v A [2019] EWCA Crim 106

The judgment, available here, was handed down on 06.02.19 by Mr Justice Sweeney.

The issue in this case was the extent to which time spent on remand in local authority accommodation under s. 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 could be taken into account when passing sentence in light of the fact that the amended s.242(2)(b) of the Criminal Justice Act 2003 referred only to time spent on remand under s. 91(4). The Court held that the only way that such credit could be awarded was for it to be included in the calculation of sentence, there being no power to compel the authorities to give credit for time spent on remand or qualifying curfew under s. 91(3).


R v Smythe & Anor [2019] EWCA Crim 90

The judgment, available here, was handed down by Lord Justice Simon on 25.09.18.

The issue in this appeal was whether sentences of 8 years imposed on the appellants for an offence contrary to s. 5 of the Domestic Violence, Crime and Victims Act 2004 were manifestly excessive. The Court allowed the appeal, substituting a sentence of 6 years’ imprisonment, on the basis that the judge had erred in applying sentencing guidelines that were not in force at the time of sentencing and, in addition, the sentences imposed were manifestly excessive in the circumstances.


R v Biddle [2019] EWCA Crim 86

The judgment, available here, was handed down by Lady Justice Hallett on 22.02.19.

The issues in this appeal were whether the trial judge had erred in (i) not allowing an intermediary to be present for the benefit of the appellant throughout the whole trial and (ii) giving an adverse inference direction pursuant to s. 35 of the Criminal Justice and Public Order Act 1994 on account of the appellant’s failure to give evidence. The appeal was dismissed; this was not one of the rare cases where an intermediary was required for the whole trial and there was nothing to suggest that there was a causative link between the lack of an intermediary and the decision not to give evidence.


R v Maxwell [2019] EWCA Crim 130

The judgment, available here, was handed down by Mr Justice Burbidge on 25.01.19.

The issue in this case was whether a sentence imposed for an offence contrary to s. 20 of the Offences Against the Person Act 1861, which had as its starting point a term beyond the guidelines, was manifestly excessive. The court dismissed the appeal; given the circumstances of the case, including the injury caused and other aggravating factors such as the offender being on licence at the time of the offence, the judge had been justified in going beyond the guideline range.


R (Lyons) Criminal Cases Review Commission [2019] EWHC 183 (Admin)

The judgment, available here, was handed down by Lady Justice Nicola Davies on 05.02.19.

The claimant challenged the refusal of the Criminal Cases Review Commission to refer two convictions, one for rape and one for sexual assault by penetration, to the Court of Appeal on the basis of new evidence. The challenge failed; the circumstances in which the Divisional Court would intervene in such cases as these were limited and, in this case, there was no clear error in the approach of the Commission which justified such an intervention.


Fury over MoJ ‘betrayal’ on legal aid at inquests


Nearly 65% of prisoners at women’s jail ‘show signs of brain injury’


No-fault divorce to become law 


University launches scheme to rehabilitate sex offenders


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4 February 2019

Weekly Digest: 4 February 2019

This week’s Digest considers four judgments, two of the Supreme Court and two of the Court of Appeal (Criminal Division). The first Supreme Court judgment addresses the legality of the compensation scheme under s. 133(1ZA) of the Criminal Justice Act 1988 where appellants’ convictions are successfully quashed (R (Hallam)), and the second considers declarations of incompatibility made by the Courts of Appeal in England and Northern Ireland in respect of the disclosure of minor criminal offending to potential employers (Gallagher). The issues in the Court of Appeal judgments were whether a trial judge had been right to accede to the respondent’s submission of no case to answer (Bush), and whether convictions for assault occasioning actual bodily harm and cruelty to a person under 16 should be quashed (Cooper).

R (Hallam) v Secretary of State for Justice [2019] UKSC 2

The judgment, available here, was handed down on 30.02.19. Lord Mance delivered the lead judgment.

The issue in this appeal was whether s. 133(1ZA) of the Criminal Justice Act 1988 – i.e. the provisions relating to compensation where a conviction is quashed – was incompatible with art. 6(2) of the ECHR. The appellant argued for its incompatibility on the basis that s. 133(1ZA) provided that compensation was only payable where the newly discovered evidence showed beyond reasonable doubt that they had not committed the offences for which they had been convicted. The appeal was dismissed by a majority. Considering the jurisprudence of the ECtHR, there was no logical basis on which s. 133(1ZA) was incompatible with art. 6(2) ECHR.


In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) [2019] UKSC 3

The judgment, available here, was handed down on 30.01.19.

The issue in this appeal was whether declarations of incompatibility made by the Courts of Appeal in England and Northern Ireland in respect of amended schemes requiring the disclosure of spent convictions, cautions or reprimands for comparatively minor offending should be upheld. The Supreme Court affirmed the declarations already made and made a further declaration of incompatibility in respect of another measure amending the schemes.


R v Bush and anor [2019] EWCA Crim 29

The judgment, available here, was handed down by Lady Justice Hallett DBE on 30.01.19.

The issue in this application was whether the judge had been right to accede to the respondents’ submission of no case to answer at trial. The application was refused. In light of the way that the prosecution had presented their case and given the evidence relied on by the prosecution, it was not arguable that the judge had erred or acted unreasonably in requiring the prosecution to present its case on the basis of the respondents’ knowledge of the unlawfulness or false accounting.

Sasha Wass QC, Esther Schutzer-Weissmann, and Vincent Scully were instructed by the Serious Fraud Office for the applicant.


R v Cooper [2019] EWCA Crim 43

The judgment, available here, was handed down by Davis LJ on 29.01.19.

The issue in this appeal was whether convictions for assault occasioning actually bodily harm and cruelty to a person under 16 years were safe. The court quashed the convictions. In relation to the cruelty count, the judge had erred in not properly particularising the elements of the charge when leaving the matter to the jury. Regarding the assault, the lack of tailored cross-admissibility direction by the judge rendered the conviction unsafe.


Mother of three-year-old is first to be convicted of FGM in UK


Crime figures: violent crime recorded by police rises by 19%


More than half of young people in jail from BME background


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Alex Du Sautoy
Alex Du Sautoy
31 January 2019

Are we there yet? Criminal liability in the era of driverless cars

Since the Motor Car Act 1903, the safety of our roads has been regulated largely through the criminal law. Drivers will incur criminal liability if they drive in an unsafe way, or if they evade the scheme of regulation and compensation (i.e. by driving without a licence or insurance).

What will happen, then, when drivers are taken out of the picture? As the technology advances, who should be responsible if a driverless car speeds? Or drives in a way that, had it been the result of a human driver, would be considered careless or dangerous? Or if a driverless car kills someone?

The advent of automated vehicles has been progressing at a pace that allows lawmakers to address these questions in anticipation rather than reaction. Yet as last year saw the first death involving a driverless car in Arizona, the time for reflection is running out.

The Automated and Electric Vehicles Act 2018, which has not yet been brought into force, envisages how civil liability will operate for automated vehicles. It includes a provision that, where an accident occurs as a direct result of software alterations prohibited by an insurance policy, or a failure to install software updates, the insured person is liable for any damage caused.

One might expect criminal liability to follow in a similar vein. The Law Commission’s on-going consultation (closing on 8 February 2019) envisages that, where a vehicle is driving itself, the human user will not be liable for any offences arising out of the automated driving. Instead, the entity responsible for the automated system will be subject to a series of regulatory sanctions. However, if the owner of the vehicle has failed to update software then the fault may lie with them. It is also suggested that, at least in the immediate term, every vehicle will still need a “user-in-charge” who is capable of taking over driving when necessary, bears the various obligations not related to the driving itself, such as reporting accidents, and is subject to the same rules on licencing and sobriety that would apply if they were driving the car.

The assignment of fault between the company that designed the system, the registered keeper of the car and the user-in-charge raises three issues of which legislators and practitioners will need to be mindful.

The first consideration concerns the practicalities of prosecution. If there is a question mark over the cause of a minor traffic offence – such as speeding or going through a red traffic light – then what ought to be a straightforward and relatively efficient prosecution may become increasingly complex and technical. It may need to be determined a) whether the car was in autonomous mode; b) whether the software was responsible for the speeding; and c) whether the owner ought to have updated the software and whether that update would have prevented the speeding. There may even be other issues raised by potential defendants, such as whether the software has been hacked, whether the roads or signs have been tampered with in a manner that tricks the software, or whether the user-in-charge ought to have realised the system was not functioning correctly and taken over. Aside from the changes to legislation, the courts and its users will all need to be ready for what could be an incredibly complex development. The need for proper case management in driving cases, as was highlighted in 2016 by Senior District Judge Riddle in R v Cipriani, could be tested to the extreme.

Moreover, for more serious offences, the Law Commission has raised the question of whether new corporate offences ought to be introduced where faults in an automated system result in death or personal injury. There is some concern that the current law on corporate manslaughter would not be fit for purpose. Moreover, will a new or any existing offence accommodate for those situations where, faced with a choice between two evils, an algorithm has been written to choose one injury or fatality over another? Can a jury be expected to decide if the choice to write the software in a certain way constituted manslaughter?

The second issue is effective deterrence. A human driver is heavily dissuaded from driving offences by the sanction of the points system, disqualification and further punishment. A financial penalty for a company whose software was faulty may not carry the same weight, and in practice the courts may not be all too willing to withdraw authorisation for that software to be used, if that would mean that consumers could no longer use an automated system on which they rely. There may need to be some thought on how best to compel companies to keep their software up-to-date and compliant with the ever-changing regulations governing all the country’s roads. The National Transport Commission of Australia has tentatively raised the possibility of imprisonment terms being available for ‘duty holders’ within the entities responsible for an automated system (see paragraph 8.2.2 of their policy paper), but that may not be realistic.

Developers may think twice about investing in this technology if their liability and legal expenses are going to be extortionate.

Finally, there is the need to encourage progress. If driverless vehicles will be, on the whole, safer than human-driven cars, then parliament will not want to introduce laws that prevent use and development of the technology. So, in ensuring that companies and users are sufficiently deterred from letting automated vehicles drive dangerously, Parliament will also need to strike a balance with the need to avoid excessive regulation likely to stifle progress. If a user-in-charge may obtain a criminal record by sitting in a driverless car whose software has not been updated, or if they are expected to pay close attention and take over if the software starts malfunctioning at all, they may conclude that it would be better to stick with human driving. Or similarly, developers may think twice about investing in this technology, or making it affordable, if their liability and legal expenses are going to be extortionate.

As the law tries to develop in step with the technology, it is an unenviable task to walk the line between effective protection of road-users in the short-term and the encouragement of a potentially life-saving innovation in the long-term. Whatever becomes of the Law Commission’s current project, there are likely to be many challenges ahead for criminal practitioners in road traffic law.

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28 January 2019

Weekly Digest: 28 January 2019

This week’s Digest considers three judgments: one from the Court of Appeal (Criminal Division) and two from the High Court. The first considers the defence afforded to police constables under section 10(3) of the Dangerous Dogs Act 1991. The second asks whether political protesters who blocked off two access roads to an arms fair are protected by Articles 10 and 11 ECHR. The third assesses whether a public law defence is available to a Defendant charged with breach of a Community Protection Notice.

R v PY [2019] EWCA Crim 17

The judgment, available here, was handed down Lord Burnett of Maldon on 22 January 2019.

A police dog, whilst being exercised by its police handler, attacked and injured a runner. At trial the Defendant handler relied section 10(3) of the Dangerous Dogs Act 1991 (“the 1991 Act”) which exempts a dog from being regarded as dangerously out of control if it is “being used for a lawful purpose by a constable”. The Judge allowed the defence. The prosecution appealed. A secondary question centred on section 58 of the Criminal Justice Act 2003, and whether notice to appeal and an acquittal agreement could be made via email. The court held that there was no reason why the requirements of section 58 could not be met by email and that section 10(3) could only apply when the dog was being used for law enforcement purposes. The appeal was allowed.

Louis Mably QC appeared for the Appellant.


DPP v Ziegler and ors [2019] EWHC (Admin)

The judgment of the court, dated 22 January 2019, is available here.

The question for the court in these conjoined appeals by way of case stated was whether the District Judge was entitled to dismiss charges brought against a group of protestors under section 137 of the Highways Act 1980 on the grounds that the defendants had a lawful excuse. The defendants had blocked off two approach roads to the Excel Centre on 5 September 2017 in protest at the biennial Defence and Security International arms fair. The court upheld the appeal for the first to fourth respondents, but held that it lacked jurisdiction to consider the DPP’s appeal in relation to the Fifth to Eighth Respondents.


Stannard v CPS [2019] EWHC 84 (Admin)

The judgment, available here, was handed down by Hickinbottom LJ on 23 January 2019.

This was an appeal by way of case stated in which the Appellant challenged his conviction for breach of a Community Protection Notice (“CPN”), on the grounds that the CPN included requirements that were unreasonably wide, and so neither necessary nor proportionate to address the risk he posed. The court held that this was not a valid defence. It is not for the District Jude to consider the validity or otherwise of the CPN; this should have been raised by way of an appeal against the CPN when first awarded.

Paul Jarvis appeared for the Respondent.



Justice Secretary suggests Parliament could be given free votes on some Brexit issues


Sceptical judges told: ‘We’re a long way from video hearings’


Corners may need to be cut to avoid burnout, President of the Family Division warns


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Paul Jarvis
Paul Jarvis
21 January 2019

Comment: R (Monica) v DPP [2018] EWHC 3508 (QB)

In R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (QB), the Divisional Court (Lord Burnett of Maldon LCJ and Jay J) refused a claim from ‘Monica’ for judicial review of the decision of the DPP not to institute criminal proceedings against Andrew James Boyling, who was himself an interested party to the claim.  ‘Monica’ is a pseudonym for a woman who entered into a sexual relationship with Mr Boyling at a time when he was a police officer masquerading as an environmental protestor.  The activities of Mr Boyling, and other police officers like him, are presently being considered by Sir John Mitting as part of the Undercover Policing Inquiry.  Monica claimed that she would not have agreed to have a sexual relationship with Mr Boyling had she known the truth and, her agreement having been procured by his deception, her consent to the sexual activity that had taken place between them had been vitiated.  The DPP refused to prosecute Mr Boyling for raping Monica, and she sought to challenge that decision before the Divisional Court.

No doubt much will be written elsewhere about the significance of Monica’s case to the circumstances in which the Divisional Court will interfere with a decision not to prosecute, and to the conditions that must exist before it can be said that deception on the part of one party to an act of sexual intercourse vitiates the consent of the other party.  This piece focusses on a different aspect to the decision, and that concerns the relationship between the offence of rape in section 1 of the Sexual Offences Act 1956 and the equivalent offence in its statutory successor, section 1 of the Sexual Offences Act 2003.  Section 1 of the 1956 Act made it a statutory felony for a man to rape a woman but it did not set out what the elements of rape were.  The 1956 Act also contained an offence in section 2 of procuring a woman, by threats or intimidation, to have unlawful sexual intercourse, and a further offence in section 3 of procuring a woman to have sexual intercourse by false pretences or false representations.  The section 2 and 3 offences were repealed when the 2003 Act came into force on 1 May 2004 and not replaced.

The Sexual Offences (Amendment) Act 1976 amended the 1956 Act in a number of important respects and provided the first statutory definition of rape, which included a requirement that the sexual intercourse must have taken place without the woman’s consent.  The 1976 Act did not define what ‘consent’ meant but in Monica, the Divisional Court saw no reason to suppose that it meant anything other than what the common law said it meant at the time the amendment was made (at [27]).   The claimant submitted that in R v Olugboja [1982] QB 320, the Court of Appeal had unshackled consent in section 1 of the 1956 Act from its common law moorings and allowed it to drift over areas previously reserved for section 2 and 3.  In other words, the claimant suggested that certain threats, intimidations, false pretences or false representations that would not previously have been relevant to the issue of consent under the common law now had to be considered under section 1 whereupon it would be a matter for a jury to decide whether the apparent consent of the woman had been vitiated by those threats etc.

The rape offence in the 1956 Act was amended again by the Criminal Justice and Public Order Act 1994 but without the insertion of a definition of consent. It was not until the 1956 Act was largely swept away by the 2003 Act that Parliament created a definition of consent in section 74 of that latter statute in these terms – “a person consents if he agrees by choice and has the freedom and capacity to choose”.  The claimant further submitted that the definition of consent in section 74 of the 2003 Act did no more than reflect the more sophisticated understanding of consent that followed on from the amendment to the 1956 Act that had been made by the 1976 Act.  In contrast, Mr Boyling argued that the introduction of section 74 fundamentally changed the law on consent and so it would be a mistake to assume that in 2003 Parliament had intended to do no more than codify the common law on consent as it existed at that time.

Of importance here, the Divisional Court found that there is “no decided case that holds in terms that the 2003 Act has made no difference to the notion of “consent”” (at [48]).  It followed that there was “at least room for argument” that the abolition of the offences in section 2 and 3 of the 1956 Act “may have widened the scope of the offence of rape”.  Although the Divisional Court was clearly not inclined to decide the point it did leave the door open to a submission in a future case that consent under the 2003 Act is different to consent under the 1956 Act and that is because (i) Parliament chose not to define consent under the earlier Act (and so it cannot be presumed that the definition in the 2003 Act reflects what Parliament understood consent in the 1956 Act to mean), and (ii) Parliament chose to retain sections 2 and 3 in the 1956 Act (and so Parliament presumably intended certain types of conduct to be caught by those offences and not by section 1, whereas under the 2003 Act there is no equivalent of the section 2 and 3 offences and so ‘consent’ in section 1 is left to do all the work).

This is significant and not just in the context of cases where the prosecution maintain that consent has been vitiated by fraud.  What about those cases where the prosecution allege the victim has been groomed, and thus she lacked the freedom to choose to have sexual intercourse with the defendant – see R v Robinson [2011] EWCA Crim 916 (a 1956 Act case); R v Ali (Yasir) [2015] EWCA Crim 1297, [2015] 2 Cr App R 33 (a 2003 Act case); and Freer, ‘Yes, no, maybe – recent cases on consent and freedom to choose’, Archbold Review, 2016, 1, 6–9.  There will be little difficulty accommodating this allegation in the 2003 Act because freedom is an element of consent, but would the position be the same under the 1956 Act?  Following Monica, there may just be an argument to say that the sort of considerations that arise in grooming cases, and which are relevant to consent under the 2003 Act, would not be relevant to consent under the 1956 Act because they fall more neatly into the section 2 and 3 offences. Or, to put it another way, where a person is apparently an enthusiastic participant in a sexual encounter, but the prosecution’s case is that that person lacked the freedom to choose to participate in that activity because she had been groomed, Parliament did not intend that consideration to undermine consent under section 1 of the 1956 Act with the result that the act of intercourse could not amount to rape but could, in theory, amount to an offence contrary to section 2 or section 3.  It remains to be seen whether and to what extent the Court of Appeal will engage with the argument in Monica about the scope of consent in the 1956 Act and the 2003 Act being potentially different, but there is certainly an argument there to be made in an appropriate case.

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21 January 2019

Weekly Digest: 21 January 2018

This week’s Digest considers three judgments: one from the Court of Appeal (Criminal Division) and two from the High Court. The first considers whether s.55(2) of the Data Protection Act 1998 has to be read down to impose an evidential burden on a defendant seeking to prove his or her defence. The second assesses whether the CPS unlawfully took over and discontinued a private prosecution brought by the Campaign for Antisemitism against a radical activist. The third asks whether it was lawful for the Home Secretary to assist the US in bringing prosecutions against ISIS terrorists which may lead to the death penalty.

Shepherd v The Information Commissioner [2019] EWCA Crim 2

The judgment of Jay J, dated 18 January 2019, is available here.

The case centred on the interpretation of s.55(2) of the Data Protection Act 1998 (“DPA 1998”): whether this imposes a legal or evidential burden of proof on the defendant, and, if the former, whether this is compatible with article 6 ECHR. Although the DPA 1998 has been repealed by the DPA 2018, the Information Commissioner asked the court to provide appropriate guidance on the new provisions. The appeal was allowed. Section 55(2) imposes no more than an evidential burden. A request for a re-trial was rejected.


Campaign against Antisemitism v Director of Public Prosecutions [2019] EWHC 9 (Admin)

The judgment, available here, was handed down by Hickinbottom LJ on the 9 January 2019.

The Campaign against Antisemitism (“the CAA”) challenged the decision of the DPP to take over and discontinue the CAA’s private prosecution of a Mr Ali for statements he made at a rally in Central London in June 2017. The CAA had sought to prosecute Mr Ali under section 5 of the Public Order Act 1986 (“the 1986 Act”) for using abusive words within the hearing or sight of a person likely to be caused distress. As a public law challenge the CAA had to prove that the DPP had acted irrationally. It was not irrational for the DPP to decide that the words used were not abusive. The claim was dismissed.


R (El Gizouli) v Home Secretary [2019] EWHC 60 (Admin)

The judgment, available here, was handed down by the Lord Burnett of Maldon CJ on 18 January 2019.

The issue raised in this judicial review was whether it is lawful for the Home Secretary to authorise mutual legal assistance (“MLA”) to a foreign state in support of a criminal investigation which may lead to prosecution for offences which carry the death penalty, without requiring an assurance that the prosecution would not seek the death penalty. The claimant is the mother of Mr El Sheik, who is believed to be detained by Kurdish forces in northern Syria; he is accused of involvement in acts of terrorism. The claim was dismissed; the Home Secretary had not acted unlawfully.



Lord Sales sworn in as newest Supreme Court judge


Prisons minister looks to scrap sentences of less than six months


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Lucy Organ
Rosalind Earis
Lucy Organ and Rosalind Earis
16 January 2019

Runaway companies: prosecuting a company in its absence

The jurisdiction to prosecute an individual in his or her absence is well established: the court must not proceed unless it is satisfied that the defendant has waived the right to attend, and that the trial will be fair despite the absence (see r.25.2 of the Criminal Procedure Rules 2015). The leading case of R v Jones [2002] UKHL 5 then sets out principles to take into account in deciding whether that test is met, and makes clear that the discretion to proceed in absence is one to be exercised with great caution.

But how do these provisions apply, if at all, to the prosecution of a corporate defendant in its absence? If a company does not cooperate with any prosecution, what shape might any trial take?

This is unlikely to arise in the case of a large company, with obvious concerns regarding reputational damage. However, smaller businesses, especially if they are no longer trading or would struggle to afford private representation, may be more tempted not to engage with proceedings.

Section 33 of the Criminal Justice Act 1925 sets out the procedure at arraignment where a corporate defendant fails to attend (emphasis added):

33 Procedure on charge of offence against corporation.

(3) On arraignment of a corporation, the corporation may enter in writing by its representative a plea of guilty or not guilty, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.

Unlike r.25.2 Crim PR 2015, section 33 appears to create a mandatory provision: that the trial shall proceed notwithstanding the absence of a representative for the company. Similar provisions for proceedings in the Magistrates’ Courts are found at section 46 and paragraph 3 of Schedule 3 of the Magistrates’ Courts Act 1980 – and they even explicitly override the absent company’s right to elect jury trial.

But does this oblige the court to go on to hear the full trial in absence, or simply to treat the defendant as if it had been arraigned and pleaded not guilty? It is suggested that the latter is correct, for two reasons – firstly, there is nothing to suggest that the requirement that the trial “shall proceed” equates to a requirement that it proceed to the bitter end. The word “trial” is not defined in the 1925 Act, but where it appears in other pieces of legislation it boasts varying definitions – for the purpose of custody time limits it begins when a jury is sworn (s.22(11A) Prosecution of Offences Act 1985); for the purpose of timetabling under s.77(3) SCA 1981 the trial begins upon arraignment; for the purposes of preparatory hearings the trial begins when that hearing commences (s.30 CPIA 1996). The “trial” in section 33 could therefore encompass decisions of case management and whether evidence can fairly be called against the defendant in its absence.

Secondly, the provisions of a 1925 Act should be read in light of more modern case law concerning the right to a fair trial, not least Jones itself and the requirement that the prosecution prove that the defendant knows of, or is indifferent to, the consequences of being tried in absence and without legal representation (see also R v OHare [2006] Crim LR 950). If a company is not voluntarily absent, a fair trial is unlikely to follow.

However, this reading should not tempt company directors to turn a blind eye to an impending prosecution. The words of Lord Bingham at p.12 of Jones set out the policy reasons underpinning the jurisdiction to proceed in absence:

 “Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist….If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against [any co-]defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.

The courts are unlikely to allow unscrupulous companies to kibosh any trial by simply not turning up.

These considerations must apply even more strongly to companies than to individuals, since companies cannot be “apprehended”, or indeed bailed, remanded in custody or generally shepherded into trial. The courts are unlikely to allow unscrupulous companies to kibosh any trial by simply not turning up.

So, assuming that the court finds that the trial can proceed in the company’s absence, does all of the evidence need to be called live?

The position is probably little different from that of a human defendant. Both the provisions of section 9 of the Criminal Justice Act 1967 and the overriding objective – in particular the requirement that evidence, whether disputed or not, be presented in the shortest and clearest way (r.3.2 (2)(e)) – allow for evidence to be read in appropriate circumstances.

Finally, as Martyn Bowyer has pointed out here, an absent company would probably escape an adverse inference direction if the trial did go ahead.




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Ailsa McKeon
Ailsa McKeon
10 January 2019

Without Rhyme or Reason: The Removal of Juries from Rape Trials

Ann Coffey MP recently gave a speech in Parliament seeking a wide-ranging inquiry into rape prosecutions.[1]  One of Ms Coffey’s proposals was that juries be removed from rape trials.  Increasing rates of acquittal, particularly of younger men, were said to suggest that jurors carry societal prejudices against sexual offence complainants into their deliberations.  The result, Ms Coffey asserts, is that predominantly female victims of sexual violence are being denied justice.

This is far from the first challenge to jury trials, nor will it be the last.  In that light, it is worth considering what mischief it is said removing juries will cure. A brief survey of several common law jurisdictions reveals three motivations for legislative exclusion of jury trials: the impact of adverse publicity; the risk of jury tampering; and the competence of jurors.

Adverse publicity is of greatest concern to defendants, who question in notorious cases whether their trials may be fair.  The prominence of the internet has caused increasing concern, as the passage of time no longer guarantees jurors will not be exposed to adverse press when a case comes to trial.  This concern influenced the rise of judge-alone trials in Australia.[2]  Despite the modern media landscape, however, jury trials for serious offences predominate.

In the UK, adverse media coverage is dealt with primarily by reporting restrictions under the Contempt of Court Act 1981.  Instead, jury tampering was the catalyst for judge-only trials, with ‘Diplock courts’ developing in Northern Ireland during the 1970s.[3]  Established under emergency powers, these juryless trials were only ever available for certain scheduled offences and have been in the process of being phased out since 2007.[4]  However, just a few years before, judge-alone trials had become possible across the UK pursuant to section 44 of the Criminal Justice Act (“CJA”) 2003, which  permits the prosecution to apply for a judge-alone trial where there ‘is evidence of a real and present danger that jury tampering would take place’ that cannot be ameliorated.  Section 46 CJA 2003 enables a judge to discharge a sitting jury and continue without them, if satisfied jury tampering has occurred.  Again, such trials are extremely uncommon

Of most relevance to Ms Coffey’s proposal is the third reason for excluding juries.  The purported inability of jurors to comprehend complex law and evidence led to the introduction of judge-only trials in New Zealand in 1979[5] and also played a role in Australia.[6]  The same imperative led to section 43 CJA 2003, permitting the prosecution to apply for ‘serious or complex fraud cases’ to be heard by a judge alone.  This was part of the fallout from the 2004/05 ‘Jubilee Line case’, which was abandoned after 21 months.[7]  Section 43 has in fact not been brought into force, arguably because its necessity has simply not been shown.  Two additional points may be made about that case: first, it was not the jurors’ lack of ability, but poor case preparation that brought the case to its knees.  Secondly, case management reforms commenced by Lord Judge, when Lord Chief Justice, are considered adequate by the judiciary to address the concerns that case raised.[8]

“What we certainly do not know is that jurors acquit rape defendants because of anti-victim bias”

The idea that all jurors are unable to consider a case fairly and impartially due to inherent societal prejudices is another species of complaint as to incompetence.  Some argue that such concerns are not founded in evidence, and view juries from a disparaging and elitist point of view.[9]  Unfortunately, mandatory secrecy means that we know very little about what goes on inside jury rooms.  What we certainly do not know is that jurors acquit rape defendants because of anti-victim bias.

Indeed, the purpose of having randomly-selected juries is to ensure verdicts are reached by broad cross-sections of society, from various walks of life, with distinct cultural and educational backgrounds, and different life experiences.[10]  While many may be aware of certain stereotypes around sexual offence complainants, it cannot be said that all view them in the same way and are inevitably biased.

More relevant, it seems, is that rape trials often depend on a ‘credibility contest’ between oral evidence of a defendant and a single complainant.[11]  Humans are in fact poor lie detectors and, research suggests, likely to be less confident in their judgment where they are in fact correct that someone is lying than when they are wrong.[12]  In these cases, then, jurors are faced with a very challenging task.

Adding to the jurors’ burden is the specialist language used in courtrooms and the emphasis during trial on oral advocacy and evidence.[13]  Of significant concern is a finding that jurors may not perceive oral evidence as ‘proper’ evidence, on which they can rely in reaching their decision.[14]  In general, jurors commonly report that they would appreciate greater guidance in how to approach their task.[15]

These factors do not point to an inherent incapacity among jurors to understand cases before them.  Rather, they suggest that those who are accustomed to working in courts are not sufficiently careful to ensure that juries do, in fact, understand.[16] Although Ms Coffey relies on recent research linking prejudice and acquittal, this is just one study.  Correlation and causation must also be carefully distinguished.

Research confirms that jurors approach their task and view its consequences seriously.[17]  If we operated on a balance of probabilities, many more convictions might follow because, on balance, a complainant may be believed. But that is not the standard by which criminal courts operate and jurors know it.  So it does not follow as Ms Coffey suggests that juries acquit because their prejudice causes them to disbelieve complainants.  On balance, a jury may find a complainant’s account credible, but simply not find this sufficient to make them sure that the defendant committed the offence charged.  It is an element of rape in particular that the defendant ‘does not reasonably believe that [the complainant] consents’.[18]  The defendant’s state of mind is something to which a complainant cannot directly attest, and the jury’s view on this says nothing about whether they believe her account.  Victims must be assisted by the court system and others to understand this.

All three motivations for removing juries suggest that judges are more robust and protected than others in society, and to some degree this is true. However, judges are still human and susceptible to societal influences.  One need not be conscious of a preconception to be affected by it.  At least among 12 jurors, subconscious biases may be voiced and debated.

In fact, despite their training and experience, it seems judges are no better equipped than laypersons at excluding extraneous information from their minds.[19]  Such matters need not only relate to the defendant – reliance may be sought, for example, on purported bad character or sexual history evidence with respect to the complainant or another witness in the case.  The judge will have to rule on this – but the jury will never know of it and will be able to reach their verdict untainted by such inadmissible material.

Given human frailties, it is therefore a strength of the jury system that its arbiters of fact and law are distinct

Ms Coffey’s proposal positions juryless trials as a silver bullet for victims, but there is no evidence that this will be the case.  Given human frailties, it is therefore a strength of the jury system that its arbiters of fact and law are distinct.  Of course, more research on juries, including an expected report from Professor Cheryl Thomas, is to be welcomed.  Until there is evidence that jury trials are an impediment to justice, we ought to be resistant to change. The availability to all of trial before a jury for serious offences remains an important facet of equality before the law and ought not to be arbitrarily restricted.


[1] See House of Commons Debates, 21 November 2018, Column 344-350WH <http://bit.ly/2QfA9q7>.

[2] Rebecca McEwen, John Eldridge and David Caruso, ‘Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury’ (2018) 22 International Journal of Evidence & Proof 124; Jodie O’Leary, ‘Inspiring or Undermining Confidence? Amendments to the Right to Judge Alone Trials in the ACT’ (2011) 10 Canberra Law Review 30, 32-33.

[3] Liz Campbell, ‘The Prosecution of Organised Crime: Removing the Jury’ (2014) 18 International Journal of Evidence & Proof 83; Louis Blom-Cooper QC, ‘Article 6 and Modes of Criminal Trial’ (2001) 1 European Human Rights Law Review 1.

[4] See Section 9, Justice and Security (Northern Ireland) Act 2007.

[5] Neil Cameron, Susan Potter and Warren Young, ‘The New Zealand Jury’ (1999) 62(2) Law and Contemporary Problems 103, 117.

[6] O’Leary (n2) 32.

[7] Sally Lloyd-Bostock, ‘The Jubilee Line Jurors: Does Their Experience Strengthen the Argument for Judge-Only Trials in Long and Complex Fraud Cases?’ [2007] Criminal Law Review 255.

[8] Ibid 259-66, 271; Robert F Julian, ‘Judicial Perspectives in Serious Fraud Cases: the Present Status of and Problems Posed by Case Management Practices, Jury Selection Rules, Juror Expertise, Plea Bargaining and Choice of Mode of Trial’ (2008) 10 Criminal Law Review 764, 766.

[9] See Lee Stuesser, ‘The Jury in Canada’ (2007) 90 Reform 51, 52.

[10] Julian (n8) 772; Peter McLellan, ‘Looking Inside the Jury Room’ (2011) [W] Bar News 64, 65.

[11] Michael Green, ‘Credibility Contests: the Elephant in the Room’ (2014) 18 International Journal of Evidence & Proof 28, 29, 34-35.

[12] Ibid 30.

[13] McClellan (n10) 65-67, 69-70.

[14] K Warner, J Davis and P Underwood, ‘The Jury Experience: Insights from the Tasmanian Jury Study’ (2011) 10 Judicial Review 333.

[15] Ibid; Stuesser (n9).

[16] Cameron, Potter & Young (n5) 118; McClellan (n10).

[17] McClellan (n10) 65; Warner, Davis & Underwood (n14).

[18] Section 1, Sexual Offences Act 2003.

[19] McEwen, Eldridge & Caruso (n2) 136-38; Green (n11) 33-34.

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7 January 2019

Weekly Digest: 2018 roundup

Welcome to the first Digest of 2019 – Happy New Year! This week’s edition collates the most recent judgments handed down by the Court of Appeal (Criminal Division) shortly before the Christmas break. There are five in total: Jones is an appeal against conviction based on fresh evidence; in Syed (Haroon Ali) the Court considered the compatibility of the law of entrapment and the ECHR; in TF an appeal against conviction was allowed as the offence charged on the indictment should have been buggery pursuant to s. 12(1) of the Sexual Offences Act 1956 rather than s. 1(1); Rawlinson deals with the technical issue of when the notification requirements under the Sexual Offences Act 2003 apply; and the issue in Ali Tas was whether the jury should have been allowed to consider whether the use of a weapon in a joint-enterprise was a supervening event that absolved the appellant of liability.

R v Jones [2018] EWCA Crim 2816

The judgment, available here, was handed down by Simon LJ on 21.12.18.

The appellant was convicted of an offence of sexual activity by a care worker with a person with a mental disability, contrary to s. 33 of the Sexual Offences Act 2003. He appealed against his conviction on two grounds: (1) that inadequate consideration had been given at trial to his learning disability; and (2) the joint expert statement was limited and alternative explanations for the victim’s injuries were not properly explored. The appeal was allowed and the conviction quashed on the basis that consideration at trial given to the appellant’s learning difficulties was limited and, as a result, the jury may have been left with a false impression following cross-examination of the appellant.


R v Syed (Haroon Ali) [2018] EWCA Crim 2809

The judgment, available here, was handed down by Gross LJ on 18.12.18.

The issue in this case was whether the common law of entrapment, as derived from Attorney General’s Reference (No. 3 of 2000) [2001] UKHL 53 (R v Loosely) was compatible with article 6 ECHR and ECtHR jurisprudence. The Court held that it was; the rationale under both approaches was essentially the same: striking a balance between the need for intrusive policing techniques and the right to a fair trial. As for the burden of proof on an application for a stay where incitement was alleged, ECtHR jurisprudence suggested that there was a burden on the state to disprove that allegation; because the applicant’s case in this issue was unarguable, that issue did not arise.

Duncan Penny QC and Alison Morgan appeared for the respondent.


R v TF [2018] EWCA Crim 2823

The judgment, available here, was handed down by Whipple J on 18.12.18.

The appellant was convicted of two counts of rape of a boy who was aged 15 – 16 at the time, among other sexual offences. The appellant appealed against his conviction on these two counts on the ground that they should have been charged as buggery under s. 12(1) of the Sexual Offences Act 1956 rather than rape under s. 1(1) of the same act. The appeal was allowed, and the convictions quashed; a substitution under s. 3 of the Criminal Appeals Act 1968 was not possible, as a conviction for rape did not ordinarily involve a conviction for buggery. Accordingly, the appellant’s appeal against sentence was also allowed to reflect the quashing of the two convictions, however a more substantive challenge to his sentence was not successful.


R v Rawlinson [2018] EWCA Crim 2825

The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 18.12.18.

This appeal raised a number of issues relating to the notification requirements under schedule 2 to the Sexual Offences Act 2003. The appellant was conditionally discharged and subsequently re-sentenced for an offence of exposure and sought to challenge the application notification requirements, the certificate issued subsequent to re-sentencing under s. 92, and the sentence itself. The appeal was allowed and the sentence quashed on the grounds it was manifestly excessive; the effect of such an order was that compliance with notification requirements, which had only arisen upon re-sentencing, was no longer required. The Court also confirmed it has no jurisdiction to hear an appeal against the statutory application of the notification requirements.

Paul Jarvis appeared for the respondent.


R v Ali Tas [2018] EWCA Crim 2603

The judgment, available here, was handed down by Sir Brian Leveson P on 21.11.18.

The appellant was convicted of manslaughter as part of a joint enterprise. The issue for the Court was whether the jury should have been allowed to consider whether the fact that a knife was used, apparently unbeknownst to the appellant, constituted an overwhelming supervening event absolving the appellant of liability. The appeal was dismissed; whether there was an evidential basis for an overwhelming supervening event was a matter for the judge to consider and, if appropriate, leave to the jury. In this case, the way that joint enterprise liability was explained was beyond criticism.


White and male UK judiciary ‘from another planet’, says Lady Hale


Decline in community sentencing based on probation privatisation



Rise in number of children held in custody before trial



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17 December 2018

Weekly Digest: 17 December 2018

This week’s Digest considers three judgments: two from the Court of Appeal (Criminal Division) and one from the Court of Appeal (Civil Division). The first asks whether the offence of ill-treatment or wilful neglect under s.44(1)(b) of the Mental Capacity Act 2005 requires the prosecution to prove that the victim lacked capacity; the second assesses whether a sentence of five years’ detention for a conviction of wounding with intent was manifestly excessive or overly lenient; and the third considers the correct approach for assessing damages following an unlawful arrest and false imprisonment where the arrestee would have been arrested lawfully had the correct procedure been followed.

R. v Kurtz [2018] EWCA Crim 2743

The judgment, available here, was handed down by Macur LJ on 10 December 2018.

The Registrar of Criminal Appeals referred this application concerning the scope of the offence created by s.44(2), read with s.44(1), of the Mental Capacity Act 2005. An offence is committed where a person (‘D’) ill-treats or wilfully neglects another person (‘P’) in the situation where under s.44(1)(a) D has care of P and P lacks or D reasonably believes that P lacks capacity; s.44(1)(b) D is the donee of a power of attorney created by P; or s.44(1)(c) D is a deputy appointed by the court for P. The question was whether under s.44(1)(b), like under s.44(1)(a), the prosecution must prove that the person alleged to have been wilfully neglected or ill-treated lacked capacity. The court held that this was the case, and as the judge had not directed that the appellant must have reasonably believed that P lacked capacity to look after herself the conviction was unsafe.


R. v T [2018] EWCA Crim 2464

The judgment of Lord Burnett of Maldon CJ, dated 7 November 2018, is available here.

The case in this cross-appeal centred on whether a fifteen year-old boy’s sentence of five years detention for wounding with intent was manifestly excessive for being located in the wrong part of the sentencing guidelines, overly lenient for not considering the dangerousness provisions of s.229 of the Criminal Justice Act 2003, or neither. The Court found that the judge at first instance was wrong not to consider the dangerousness provisions and substituted an extended sentence of eight years.


Parker v The Chief Constable of Essex Police [2018] EWCA Civ 2788

The judgment, available here, was handed down by Sir Brian Leveson P on 11 December 2018.

The Chief Constable appealed against damages flowing from the false imprisonment of Michael Parker, better known by his stage name Michael Barrymore. The case turned on how to construct the counterfactual and return Mr Parker to the position he would have been in had the tort not been committed. The court held that the correct counterfactual was to ask, though the arrest was unlawful, what the result would have been had the correct procedure been followed. He would have been arrested lawfully and so was not entitled to any substantial damages.




Increases in police funding for 2019 announced


Child aged 11 arrested for dealing Spice



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Rosemary Davidson
Rosemary Davidson
13 December 2018

Supreme Court: parole eligibility for EDS prisoners not discriminatory

Public law analysis: The Supreme Court in R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59, [2018] All ER (D) 142 has ruled that the extended determinate sentence (EDS) scheme, under which a dangerous prisoner becomes eligible for parole after two-thirds of the custodial  term rather than after half of the term, did not constitute unlawful discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR), combined with Article 5 (the right to liberty).  

What are the practical implications of the judgment?

Article 14 ECHR prohibits discrimination on any ground such as sex, race, etc or ‘other status’. The main aspect of the judgment likely to be of practical benefit to practitioners relates to the way in which the Supreme Court approached the question of ‘other status’. The respondent Secretary of State for Justice had argued that there must be some limit to the type of status that could fall within Article 14 ECHR, otherwise the requirement to demonstrate a status at all would be meaningless. Up until this case, that position had support in domestic law (see AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 4 All ER 1127; R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2006] 1 All ER 487; and R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 4 All ER 193).

In Stott, the majority decisions on this issue (Lady Black, Lady Hale, Lord Hodge and Lord Mance) took a wide approach to the question of status, finding that the status did not have to exist independently of the treatment complained of, and either doubting or rejecting the respondent’s ejusdem generis submission that ‘other status’ should be interpreted in line with the other characteristics listed in Article 14 ECHR.

It is likely to be easier for claimants to establish that they have an ‘other status’ for the purpose of Article 14 ECHR

The practical effect of the judgment in Stott is that it is likely to be easier for claimants to establish that they have an ‘other status’ for the purpose of Article 14 ECHR. Several of the majority decisions in Stott endorsed Lord Walker’s analysis in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 2 All ER 556 that the characteristics which fell within Article 14 ECHR were like a series of concentric circles: with the most personal innate characteristics being at the centre and requiring a high level of justification for differential treatment, and acquired characteristics (which are more concerned with what people do, or what happens to them, than with what people are) occupying the outer circles where differential treatment may be easier to justify. It follows that, while it may be easier to satisfy the ‘other status’ criterion under Article 14 ECHR, the more tenuous the status relied upon, the more difficult it will be to establish that any differential treatment was not justified.

Finally, there are two points that may be of practical interest to criminal practitioners. The first is in relation to the components of a special custodial sentence for certain offenders of particular concern (SOPC) under section 236A of the Criminal Justice Act 2003 (CJA 2003). Prior to Stott, the Court of Appeal had interpreted these sentences as being a new type of extended sentence where the court was required to determine the length of the sentence that was commensurate with the offence, and then add a year to the licence period (see for example R v Fruen [2016] EWCA Crim 561, [2016] All ER (D) 157 (May)). In Stott, Lady Black and Lord Hodge found that it was the overall sentence (the custodial term plus the licence period) that was required to be commensurate with the seriousness of the offence. The practical effect of this approach is that practitioners whose clients are at risk of an SOPC can argue for a shorter custodial term than was previously the case.

The second point of potential practical interest to criminal practitioners is the suggestion by Lord Hodge that there may be grounds for creating an exception to the principle in R v Round [2009] EWCA Crim 2667, [2009] All ER (D) 158 (Dec) that a sentencing judge should ignore any release provisions when considering the appropriate determinate sentence to impose. Lord Hodge envisaged that such an exception might apply where it was necessary to prevent injustice arising as between co-defendants as a result of being subject to different release regimes. For example, this might arise where two defendants were sentenced in respect of the same conduct but one received a life sentence, and the other was sentenced to an extended determinate sentence, such that their parole eligibility dates would be very different.

What was the background?

The appellant is a serving prisoner who was sentenced to an EDS under the CJA 2003, s 226A. His sentence comprised a custodial term of 21 years, and a four-year extension to his licence period. Under the release provisions contained in CJA 2003, s 246A, he will not be eligible to apply to the parole board for early release until he has served two-thirds of his custodial term. He argued that CJA 2003, s 246A was discriminatory and in violation of Article 14 ECHR, read together with Article 5, because other comparable prisoners serving life sentences or standard determinate sentences were eligible for early release (or at least to apply for early release) at the half-way point of their sentences. He sought a declaration of incompatibility under section 4 of the Human Rights Act 1998.

In February 2017, the Divisional Court had ruled that the appellant’s claim would have succeeded, but for the decision of the House of Lords in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 2 All ER 1 in which it was held that a prisoner serving a particular type of sentence did not have an ‘other status’ for the purpose of Article 14 ECHR. In view of the fact that, in Clift v United Kingdom (Application 7205/07), the European Court of Human Rights had taken a different view to the House of Lords and had found that the prisoner did have a relevant status, the Divisional Court in Stott granted the appellant a ‘leapfrog’ certificate enabling him to seek leave to appeal directly from the Supreme Court.

What did the Supreme Court decide?

The Supreme Court decided by a majority (Lord Carnwath dissenting) that the decision of the House of Lords in Clift was wrongly decided and that a prisoner serving a particular type of sentence (in this case, an EDS) did have an ‘other status’ within the meaning of Article 14 ECHR.

A different majority of the Supreme Court (this time, Lady Hale and Lord Mance dissenting) went on to disagree with the Divisional Court on the question of whether treating EDS prisoners differently from standard determinate and life sentence prisoners was justified. A key aspect of the majority reasoning was the conclusion that the Divisional Court in Stott was wrong to proceed on the basis that, like life sentences, standard determinate sentences were comprised of a penal element and a risk-based element. The majority in the Supreme Court held that the whole of a standard determinate sentence was imposed for the purposes of punishment. This undermined a key plank of the Divisional Court’s reasoning that the release provisions in an EDS amounted to an unlawful difference in treatment because it was the only sentence at which automatic release, or parole eligibility, did not arise at the half-way point.


Rosemary Davidson appeared with James Eadie QC and Jason Pobjoy for the respondent Secretary of State in this case.

This article was first published on LexisPSL on 13th December 2018

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12 December 2018

Weekly Digest: 12 December 2018

This week’s Digest considers two judgments of the Court of Appeal (Criminal Division). In the first, the Court considered whether sentences imposed upon individuals for public nuisance convictions arising out of a protest against fracking were manifestly excessive. In the second, the issue was whether failure to comply with s. 15(2) of the Proceeds of Crime Act 2002, i.e. not imposing financial orders on offenders where confiscation proceedings were suspended, rendered financial orders, if they were made, a nullity.

R v. Roberts and others [2018] EWCA Crim 2739

The judgment, available here, was handed down on 06.12.18 by Lord Burnett of Maldon CJ.

The issue in this appeal was whether the sentences imposed upon three individuals for public nuisance – they caused great disruption on the A583 in protesting against the authorisation to commence fracking – were manifestly excessive; two of the appellants had received custodial sentences of 16 months’ imprisonment and the other 15 months. The Court allowed the appeal; the custody threshold in this case was not crossed. The appropriate sentence would have been a community order with an unpaid working requirement. In this case, as the appellants had already spent 3 weeks in custody, the court imposed two-year conditional discharges on each.


R v. Sachan [2018] EWCA Crim 2592

The judgment, available here, was handed down on 09.11.18 by Butcher J.

The issue in this appeal was whether a compensation order, made before confiscation proceedings were commenced and contrary to s. 15(2) of the Proceeds of Crime Act 2002, was rendered a nullity. The Court held that it was not, following the reasoning of a different constitution of the Court in R v. Paivarinta-Taylor [2010] EWCA Crim 28, Parliament could not have intended that either the initial compensation order or the resultant confiscation order were a nullity.


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