6KBW Blog

In March 2018 the Appellant was convicted of three counts of unlawfully obtaining personal data contrary to s.55. He had worked for a tenancy management organisation in Islington. The London Borough of Islington had concerns about the organisation’s safeguarding of children and vulnerable young people in the area, and commissioned an investigation. The report arising out of this investigation was disclosed by the appellant to 83 individuals, including his local MPs. The report included personal data.

At trial, the Appellant contended under s.55(2)(b), (c) and (d) of the DPA 1998 that he had acted in the reasonable belief that he had the right to disclose the data, that he had the consent of the Council, and that disclosure was justified as being in the public interest. The judge at first instance held that the plain wording of s.55(2) conferred a legal burden on the defence. He declined to “read down” the subsection so as to attain an evidential burden.

The Appellant now argued that (i) ordinary principles of statutory construction led to the imposition of a legal burden; and (ii) if the position was uncertain, the ambiguity should be resolved in his favour, this being a criminal case. There was also well-established House of Lords authority that the section should be read-down to ensure a Convention-compliant outcome.

The court held that, as there was no decided case directly on this point, it could derive only limited assistance from jurisprudence. The correct construction must turn primarily on close linguistic analysis of the provision which, as a criminal statute, must be narrowly interpreted in the interests of a defendant. The court allowed the appeal on a number of different grounds, including: (i) Parliament had chosen an unusual wording in s.55(2) – “subsection (1) does not apply to a person who shows” rather than the more usual “it is a defence to prove that”; (ii) the matters set out in the different defences are not always constituent elements of the offence, and so they only come into play if a defendant raises them (Parliament clearly intended that, once raised, it is then for the Information Commissioner to disprove that matter to the criminal standard); (iii) there are strong policy reasons against legal burdens of proof, as an accused may be convicted where a reasonable doubt may exist; and (iv) this is not an archetypal regulatory offence involving strict liability. Mens rea is an essential elements of the offence, which suggests that Parliament did not intent to impose criminal consequences unless a defendant proved on the balance of probabilities facts which can be judged objectively.

The appeal was allowed. As a matter of statutory construction, s.55(2) imposed only an evidential burden on the defendant to prove to the probabilistic standard the facts comprising defence. It was therefore not necessary to consider whether the provision had to be “read down” to comply with article 6 ECHR.

Under Article 10 ECHR freedom of expression enjoys a privileged status in a democratic society, and freedom of political expression particularly so. It extends to protect activity that others may find shocking, disturbing or offensive. Section 5 of the 1986 Act has to be read in the context of Article 10. While there is not and cannot be any universal test for resolving when speech goes beyond legitimate protest, any interference with freedom of expression on the grounds of a threat to public order must be strictly justified.

The DPP is empowered by sections 6 and 23 of the Prosecution of Offences Act 1985 to take over and discontinue private prosecutions at his discretion. He should do so if the usual two stage Full Code test, set out at section 4 of the Code for Prosecutors, is not met. His decision to take over and discontinue is amenable to challenge by judicial review but only on conventional public law grounds. These will succeed only in “exceptionally rare circumstances”.

In June 2017, four days after the fire at Grenfell Tower, Mr Ali had addressed a rally at a pro-Palestinian protest. He repeatedly suggested that Israel was a “terrorist state responsible for the murders of Palestinian men, women and children”. He also stated that Zionists were responsible for the murder of the people in Grenfell. The Metropolitan Police decided that there was insufficient evidence to offer a realistic prospect of success with a prosecution, the CAA brought a private prosecution, and in June 2018 the CPS wrote to the CAA to say that they were taking over the trial and discontinuing the prosecution.

The court agreed with the CPS that some of the words Mr Ali used with respect to the fire at Grenfell Tower may well have caused distress to some of those who heard them, but that alone did not meet the threshold of section 5. Similarly, his accusations that the Rabbis on the Board of Deputies had “blood on their hands” and that they “agree with the killing of British soldiers” were not abusive within the meaning of section 5. The court held that the conclusion of the CPS that a section 5 charge would probably not succeed was perfectly rational and, therefore, lawful.

Factual background

Mr El Sheik is believed to be detained by Kurdish forces in northern Syria. He is accused of terrorist activities as a member of ISIS. He is one of the so-called Beatles. The US authorities are contemplating seeking his surrender from Syria to America for prosecution for offences that might carry the death penalty. There has been a UK police investigation. The Home Secretary decided to provide MLA to the US authorities which might be used in such a prosecution, without requiring an assurance that the death penalty would not be imposed in the event of conviction.

Submissions

The claimant advanced five grounds in support of the argument that the decision of the Home Secretary was unlawful: (i) it is unlawful under a combination of the common law, the 1998 Human Rights Act, and customary international law for the Home Secretary to exercise his powers under the royal prerogative to provide MLA which might facilitate the imposition of the death penalty or substantially contribute to the risk of its imposition; (ii) the decision is flawed by a series of misdirections and failures to have regard to relevant conditions; (iii) the decision is inconsistent with the Government’s policy of unequivocal opposition to the death penalty, and thus unlawful; (iv) the decision violates the Claimant’s rights under the ECHR (not her son’s rights, it being recognised that he is outside the jurisdiction of the ECHR); and (v) the provision of MLA breaches the Data Protection Act 2018.

Conclusion

The court dismissed the claim. On ground (i), the Home Secretary was exercising powers under the royal prerogative, but the common law has not evolved to recognise the rights and duties set out in the 1998 Act but without the limitations expressed therein. Further, Article 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not necessarily prohibit the death penalty. On ground (ii), the Home Secretary did not misdirect himself. He was under no obligation to accept any of the partial assurances offered by the USA. On ground (iii), there was nothing unlawful in the Government adopting a policy which permits an exception to seeking assurances. On ground (iv), the Claimant’s rights under Articles 3 and 8 are not violated by the provision of MLA to the US authorities. On ground (v), to the extent that the provision of MLA includes “personal data” relating to the Claimant’s son, the Data Protection Act 2018 does not prohibit its transfer to the US.

He replaces Lord Sumption, who retired from the Supreme Court on 9 December 2018.

The full piece can be found here.

Ministers argue that short jail terms are less effective at cutting reoffending than community penalties. Prisons minister Rory Stewart stated that such sentences were “long enough to damage you and not long enough to heal you”.

The full piece can be found here.

The appellant, who suffered from a learning disability with associated memory deficiency, problems with articulation, and confusion, 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. The victim, who suffered from dementia and was doubly incontinent, sustained injuries including 6-8 cm vaginal tear, which it was the prosecution case was caused by the appellant. There was no direct evidence, but the prosecution relied heavily on a joint statement from the medical experts who agreed that the injuries were at least consistent with forceful penetration by a penis or penis-sized object, and the fact that there was no evidence that the victim had been injured before she was alone with the appellant in her room. The appellant, who was treated as a normally-functioning adult, gave evidence and was cross-examined. The appellant challenged his conviction on two grounds: (1) inadequate consideration had been given at trial to his learning disability; and (2) the joint statement by the experts on the victim’s injuries was flawed and of no real assistance to the jury, and, consequently, alternative explanations for those injuries were never properly explored.

The appeal was allowed, and the conviction quashed. Regarding the appellant’s second ground, although the joint statement put before the jury was not as helpful as it could have been, the Court was not persuaded that it should accept fresh medical evidence, which advanced the theory that the victim’s injuries were caused in the hospital, as it did not provide a ground for allowing the appeal (s. 23(2)(b) Criminal Appeal Act 1968 (“the 1968 Act”)). Further, there was no reasonable explanation for the failure to address this issue at trial (s. 23(2)(d) of the 1968 Act). The first limb of the appellant’s argument on appeal, however, did provide grounds for allowing the appeal. The fresh psychological evidence which the appellant sought to adduce met the tests in s. 23 of the 1968 Act. That evidence made it clear that the appellant would have had difficulty in dealing with the leading questions put to him in cross-examination and that might have left the jury with a false impression. Although the circumstances in which new medical and psychological evidence could be successfully deployed many years after a trial in order to challenge a conviction were likely to be very rare, the highly unusual circumstances of the instant case meant that the appellant’s conviction could not be regarded as safe.

Staff at the applicant’s (S) college were concerned he was being radicalised and held extremist views. On a messaging forum, security service officers role-played like-minded individuals. In subsequent messages, S referred to detonating a bomb in a crowded London area. Without this chat material there would have been insufficient evidence to proceed with the prosecution against S for preparing terrorist acts. S applied to have the chat excluded and/or to stay the proceedings as an abuse of process, arguing in particular that he had been entrapped into committing the offence. The judge rejected those submissions and S pleaded guilty and was sentenced to life imprisonment. S appealed against the judge’s ruling, on the grounds that the common law on entrapment, as derived from Attorney General’s Reference (No. 3 of 2000) [2001] UKHL 53 (R v Loosely), was no longer compatible with article 6 ECHR and the ECtHR jurisprudence. As such, the continued application of Loosely should be clarified.

The appeal was refused. Regarding the compatibility of Loosely with article 6 ECHR, the Court reviewed both the common law entrapment cases and the ECtHR jurisprudence on the issue (see [67] – [90] and [91] – [106] respectively) and found that it remains compatible. A number of points became clear. First, the rationale for the law was the same at common law and in the ECtHR jurisprudence: there was a balance to be struck between the need for intrusive policing techniques and the right to a fair trial. Second, the definitions were essentially the same in both approaches. Third, the ECtHR’s reference to state agents acting in an “essentially passive” manner did not mean that they were confined to being passive observers only. There was a difference between the state presenting the individual with an unexceptional opportunity to commit a crime and the state punishing an individual for a crime which it itself had instigated; the former was compliant with article 6, while the latter was the mischief at which the entrapment doctrine was aimed. Similarly, the ECtHR’s emphasis on reasonable grounds for suspicion that the suspect would commit the offence at the commencement of the undercover operation was present in the common law approach. Suspicion of a particular individual was not always necessary; a particular locality or activity, including a chatroom, could come under a bona fide investigation. Fourth, there was no material difference in the obligations on the prosecution regarding disclosure in both approaches.

In this particular case, there was no arguable case of entrapment. S had made contact with someone he thought was sympathetic to terrorist violence. His words conveyed the irresistible inference that he already had a plan in mind. From then onwards there was at least a reasonable suspicion that he intended to commit an offence. The role-players had not gone beyond offering S an unexceptional opportunity to commit the crime. They remained responsive, while S had been determined and committed in planning an attack.

Further, at the heart of S’s application had been the submission that the burden of proof in such a case was on the respondent. The ECtHR approach suggested that, where there was an arguable incitement allegation, the burden of proof was on the state to disprove incitement. The judge had applied the English approach and found that S had not proved an abuse of process. That approach could be supported under the ECtHR jurisprudence on the basis that S’s entrapment allegation was not arguable, so no burden arose on the state. Even if there had been a burden on the state, the court was satisfied that it was not arguable that the role-players had gone beyond providing an unexceptional opportunity for committing the offence. Therefore, whether there was in fact a difference between the two approaches was immaterial for S’s case.

The appellant was convicted of a number of sexual offences and sentenced to 21 years’ imprisonment. The counts on the indictment material to this appeal were two counts of rape contrary to s. 1(1) of the Sexual Offences Act 1956; it was alleged by the prosecution that penetrated MR, who was aged 15 – 16 at the time, on two occasions, ejaculating inside him on one of them. The indictment stated that the first offence had taken place between June 1992 and June 1993 and the second between June 1991 and June 1993. The appellant appealed, having been granted the appropriate extension of time, against conviction on the basis that those two counts of rape should have been charged as buggery pursuant to s. 12(1) of the 1956 Act, as opposed to under s. 1(1) of the 1956 Act. Accordingly, the appellant also sought to challenge his sentence.

The appeal against conviction was allowed. The Crown conceded that the offence under s. 12(1) of the 1956 Act should have been charged but invited the court to substitute guilty verdicts of buggery contrary to s. 12(1) for the appellant’s quashed convictions pursuant to Court’s power under s. 3 of the Criminal Appeals Act 1968 (“the 1968 Act”). The Court declined to do so; in their judgment, this was not a case where a conviction for buggery could be substituted as “[r]ape of a woman by a man does not ‘ordinarily involve’ an allegation of buggery by a man of another man” ([29]). Thus, the power under s. 3 of the 1968 could not be exercised, as substitution required that “the jury must have been satisfied of facts which proved him guilty of the other offence” (s. 3(1) 1968 Act). The Court also invited counsel to address them on the issue of whether, in those circumstances, a retrial should be ordered. However, the Court was precluded from making such an order by s. 7(2) of the Criminal Justice Act 1968, since the appellant would have to be charged for a different offence to that with which he was originally charged, and the appellant could not on the indictment for rape been convicted of buggery.

The appeal against sentence, in light of the Court’s conclusion on the appeal against conviction, was also allowed and the appellant’s prison term reduced to 18 years. A more substantive challenge to the sentence itself on the basis that the one imposed was manifestly excessive and the Sexual Harm Prevention Order (SHPO) imposed by the judge, however, was rejected; in the Court’s view, the appellant had engaged in a course of conduct against young men and, in light of that, the sentence originally imposed was justified. Further, the judge was entitled to include that a SHPO was necessary.

On 9 January 2015, the appellant pleaded guilty to one offence of exposure contrary to s. 66 of the Sexual Offences Act 2003. The magistrates made a conditional discharge order for three years. On 24 July 2017, having pleaded guilty to an offence of possession of a class A drug with intent to supply, the appellant was sentenced to three years’ imprisonment and re-sentenced to two months’ imprisonment for the offence of exposure, to be served concurrently with the sentence for the drugs offence. After that sentence, at a further hearing, the appellant was informed that, when he was resentenced in July, he should have been told that the notification requirements of Part 2 of the 2003 Act now applied. On 6 December 2017, a certificate was issued under s. 92 of the 2003 Act in respect of the s. 66 offence; it certified that the date of conviction was 9 January 2015 and the words “re-sentenced 24.07.17” were inserted. The appellant challenged the notification requirements, contending that they did not apply in cases where a person is re-sentenced to imprisonment for breach of a conditional discharge, sought to challenge the certificate, and the sentence of two months’ imprisonment as manifestly excessive.

Notification Requirements

The appellant was not subject to the notification requirements when he was sentenced in January 2015 to the conditional discharge; para. 33 of schedule 3 to the 2003 Act provides that the notification requirements apply in the case of an offender aged 18 or over if convicted of the s. 66 offence and either (a) the victim was under 18 (which was not the case here); or (b) if the offender was dealt with in a particular way, inter alia, if sentenced to a term of imprisonment (none of which applied here). The reporting requirements did, however, arise, when he was resentenced in July 2017; a conclusion which flowed from the terms of s. 132 of the 2003 Act, read with ss. 80 and 82.

Jurisdiction of the Court of Appeal (Criminal Division)

The Court confirmed that an appeal does not lie against the statutory application of the notification requirements as the notification requirements apply by operation of law. If the sentencing court does nothing more than inform the offender of any notification requirements, that is not a ruling capable of being appealed (R v Longworth [2006] 1 WLR 320, [20] and [32]).

The appeal against sentence

The offence was described as a ‘childish, stupid act’ ([33]). In the Court’s view, the offence did not cross the custody threshold and was manifestly excessive and as such was quashed. The practical consequence of the quashing of the sentence was that the appellant was relieved of the reporting requirements. There was no need to challenge the certificate as allowing the appeal did not result in the conclusion that the certificate was unlawfully issued.

The appellant, having been acquitted of murder, was convicted of manslaughter; his two co-accused were both convicted of murder. The victim was stabbed to death near his university halls. The appellant and the co-accused had gone looking for the victim and found him with a group with friends. When it came to blows between the groups, the appellant punched a member of the opposition group. He then returned to his car while the co-accused chased the victim, who was eventually fatally stabbed. Both co-accused then returned to the appellant’s car and drove away. The prosecution case was that the appellant acted as part of a joint-enterprise with his co-accused and that this was a planned attack carried out in a determined fashion, using violence that escalated. At trial, the appellant’s counsel invited the trial judge to direct the jury that they must be sure that he knew that a knife was being carried by a co-defendant in order to convict him of manslaughter, as use of a hidden knife would have been a supervening act absolving the appellant of all liability. The judge rejected this argument, acceding to the prosecution’s submission that, if a defendant takes part in a joint enterprise to do some harm to their victim and the victim dies as a result of the use of a weapon that the defendant was unaware of, he would nevertheless be guilty of manslaughter. The appellant appealed against conviction, arguing that there was evidence before the jury that one or both of the co-defendants had, unbeknownst to the appellant, carried a weapon to the scene and then used it aggressively; thus it was only fair that the jury had the opportunity of concluding that the use of a knife took the event beyond the scope of a joint venture absolving him of liability.

The appeal was dismissed. After an analysis of previous authority, the Court concluded that the state of the law after Jogee [2016] UKSC 8 was that the significance of knowledge of the weapon was reduced so that it impacts as evidence going to proof of intention, rather than being a pre-requisite liability for murder. On the facts which must have been found by the jury in this case, the appellant took the risk that the others involved in the joint-enterprise with him would go further than to inflict ‘some harm’. Consistent with the principles identified in the authorities and the modern approach to knowledge of a specific weapon, there was no reason to distinguish a case where the victim is kicked to death or killed with weapon either that is picked up off the ground or brought by the principal to the scene. Whether there was an evidential basis for an overwhelming supervening event “which is of such a character as could relegate into history matters which would otherwise be looked on as causative rather than mere escalation which remained part of the joint enterprise is very much a matter for the judge” ([41]). In this case, the concept of joint enterprise was explained in a way that did not attract any criticism.

The president of the Supreme Court has said the judiciary needs to be more diverse so that the public feel that those on the bench are genuinely “our judges” rather than “beings from another planet”.

The full piece can be read here.

According to a study by a justice thinktank, the sharp decline in the use of community sentences is owing to a breakdown of trust between judges, magistrates, and the probation service after privatisation. Since 2011 there has been a 24% fall in the number of non-custodial imposed in England and Wales whereas Scottish judges are shown to use them more frequently.

The full piece can be read here.

A report by Transform Justice has shown that hundreds of children arrested by police are being locked up before trial by “risk-averse” judges, who often see them as gang members. The research, the first of its kind in almost a decade, paints a picture that children are seen as “mini-adults”, with the result that many are remanded into custody with serious consequences.

The full piece can be read here.

Factual background

The appellant had been convicted of an offence of wilfully neglected her mother in respect of whom she was the donee of an enduring power of attorney (‘EPA’). At the time of her death her mother was malnourished, seated upright in her own urine and faeces, and had not changed her clothing for many, many months. Her overall appearance suggested that she had not received any attention for over a year. The appellant was a 41-year old solicitor of good character and was described by a senior partner as having particular empathy for the elderly while at work. She specialised in issues relating to mental capacity and dealt with other people’s powers of attorney. In 2006 her mother had granted her an EPA.

At trial the prosecution submitted that, under the strict requirements of s.44(1)(b), there was no need for the prosecution to prove that the mother lacked capacity or that the defendant reasonably believed that she lacked capacity. It was enough that the mother had been ill-treated or wilfully neglected. The trial judge acceded to this submission, stating that on the face of the legislation there was no need for either a lack of capacity to be known or believed by D, nor that there had been a finding elsewhere on the balance of probability that incapacity existed.

Discussion

On appeal the appellant argued, first, that s.44(1)(b) should only apply to registered EPAs. The appellant had never registered her EPA. Secondly, she argued that in order to reflect the mischief which s.44 was designed to address s.44(1)(b) should be read as if it required the prosecution to prove the lack of capacity requirement in relation to the donor of the EPA. The respondent submitted that the mere fact that the appellant was the donee of her mother’s EPA was enough to trigger a duty on her not to ill-treat or wilfully neglect her mother.

The court rejected ground 1. Paragraph 2(1) of schedule 4 to the 2005 Act provided an express definition of an EPA which did not include a requirement for registration. However, the court accepted ground 2. The genesis of s.44 lay in earlier statutory provisions criminalizing the neglect and ill-treatment of those suffering from mental disorder and the perceived need to extend the reach of those provisions, but only in relation to incapacitated persons. After discussing the Law Commission’s 1995 report Mental Incapacity, the Lord Chancellor’s 1997 Consultation Paper, and the 1999 Government policy statement, all of which led into the 2005 Act, the court found that there was no suggestion that there was any perceived need to extend the new provisions of the 2005 Act to the ill-treatment or neglect of those with capacity. The court further invoked the rule in Pepper v Hart [1993] AC 593 to adduce evidence from the readings of the Mental Capacity Bill that the Bill was intended to protect and support people who lack mental capacity.

The court also noted that, unusually in English law, the s.44 offence imposes criminal liability for an omission (wilful neglect). The interpretation of s.44 advocated by the respondent could potentially have represented a significant policy departure from the criminal law’s traditional approach. Had Parliament intended this result, it would have made this clear through unambiguous language.

Conclusion

The appeal was allowed. Despite the evidence which suggested that, at a minimum, the appellant should have believed her mother to lack mental capacity in matter of personal welfare, the judge’s failure to direct the jury in this regard was fatal to the safety of the conviction.

The defendant had attempted to rob his victim as she was out walking late at night in Sheffield after an argument with her partner. In the course of the robbery he stabbed her six times, in two separate episodes. When the police arrived the defendant accused the victim’s partner of carrying out the attack, whereupon the partner was arrested. The victim suffered life-changing injuries.

The judge was sure that there had been two episodes of stabbing,that this was a sustained and repeated attack on the victim, that the underlying intent was robbery, that the injuries were serious, and that there was higher culpability given the use of a weapon. The attack was not premeditated and the defendant had no previous convictions. The judge placed the offending with category 1 of the guideline which, for an adult, have a starting point of 12 years’ custody. The defendant had experienced significant trauma and violence at home. The judge concluded that a custodial sentence of five years’ detention at Oakhill Secure Training Centre, as recommended by the pre-sentence report, would be appropriate. It would avoid the defendant going into a young offenders institution. He did not consider the dangerousness provisions of the 2003 Act engaged.

The appellate court agreed that this was a category 1 offence, and the judge’s starting point for the sentence could not be faulted. However, even apart from the evidence from the defendant’s school and social worker detailing his propensity for violence, the stabbing incident itself provided a strong foundation for a finding of dangerousness. It demonstrated a prolonged determination to cause really serious harm and was disturbingly aggressive. The defendant’s troubling history further suggested that the attack was an extreme manifestation of an underlying pattern of behaviour. The court therefore found him dangerous, and imposed an extended sentence comprising a custodial element of five years and an extension period of three years.

Factual background

In early 2001 Michael Parker hosted a party. One of his guests was found dead in the swimming pool. The death was treated as suspicious, but the investigation closed inconclusively before the end of 2001. It was subsequently re-opened in 2006, after which Mr Parker was arrested. However, the officer intended to effect the arrest was delayed in traffic, so the actual arresting officer did not himself have reasonable grounds to suspect Mr Parker of committing an offence. Mr Parker argued that under O’Hara v Royal Ulter Constabulary [1997] AC 28 this made the arrest unlawful and that as such he was entitled to substantial damages, valued in the order of £2.4 million, on the basis that he was re-establishing his career following from the publicity surrounding the death and the arrest.

The judge at first instance agreed, and rejected the submission of the Chief Constable that Mr Parker was entitled to only nominal damages on the basis that he could and would have been arrested lawfully by another officer who did fulfil the O’Hara criteria. The judge found that, had he not been unlawfully arrested by the officer that did arrest him, he would have been unlawfully arrested by another of the officers present on that day who similarly did not have the requisite information to form reasonable beliefs. The Chief Constable appealed. Mr Parker also appealed, on the grounds that there were no reasonable grounds for any arrest in the first place.

Discussion

The Chief Constable submitted that the judge at first instance failed to ask whether Mr Parker could and would have been detained had the officers acted lawfully. The court accepted that this was the correct test to be applied – in calculating damages, the counterfactual to be assessed had to consider what would have happened had the law been followed. The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not be committed, but that position must include the scenario where the procedure was correctly followed. This was where the judge at first instance had erred, by considering that Mr Parker would have been unlawfully arrested by another officer, rather than lawfully arrested by the designated officer who would have fulfilled the O’Hara principles.

This reasoning reflected the actual loss suffered by Mr Parker as a result of the unlawful arrest. Assuming there were reasonable grounds to suspect Mr Parker of committing an offence, and a reasonable belief in the necessity of the offence, the judge at first instance was wrong to conclude that he remained entitled to substantial damages.

On the facts, such a belief was reasonable as the evidence met the necessary low threshold, even though the re-investigation was closed without any further steps being taken. Mr Parker’s submissions, focusing on the material and attempting to undermine it piece by piece, were flawed in that they ignored its cumulative effect.

Conclusion

The judge at first instance was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, had things been done as they should have been done, lawful arrest would have been effected. The appeal was allowed and Mr Parker entitled to nominal damages only.

Ministers will allow increases in local taxes to help fund an additional £970m in police funding for 2019, though there are fears that the money will only be able to fund new officers and fighting crime after extra pension costs and the costs from inflation.

The full piece can be found here.

Drug dealers are encouraging children as young as 11 to become Spice mules with gifts such as trainers, mobile phones and bikes.

More details can be found here.

The appellants, Mr Blevins (B), Mr Roberts (R), and Mr Loizou (L), were convicted of public nuisance contrary to common law. Their convictions arose out of their conduct in protesting against the authorisation to Cuadrilla by the Oil and Gas Authority to begin hydraulic fracking to explore for shale gas at a site just off the Preston New Road, the A583, near Blackpool. They sat on top of the cabs of lorries containing drilling equipment for between two and half and three days with the result that the carriageway of the road was blocked. B and R were sentenced to 16 months’ imprisonment and L to 15 months. They appealed against those sentences on the grounds that they were manifestly excessive.

The Court allowed the appeal; the sentence they considered should have been imposed was a community order with a significant requirement for unpaid work. At the time of the hearing, however, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. In light of that, the only appropriate sentence was a conditional discharge for two years. The Court rejected the appellants’ primary submission that an immediate custodial sentence was never appropriate for a non-violent crime committed as part of a peaceful protest by reference to the observations of Lord Hoffmann in Margaret Jones [2006] UKHL 16 (at [89] et seq.). They did, however, conclude that the custody threshold had not been crossed in respect of the appellants’ conduct, having regard to the good character of these appellants and the underlying motivation for their criminal behaviour, even taking into account the widespread disruption caused; the judge’s conclusion that the appellants were likely to offend again was flawed.

The appellant pleaded guilty to a single count of fraud by abuse of position; he had, while employed as Head of Digital at a company called Alison at Home, diverted company funds to a friend of his and to himself. The appellant benefited in the sum of £51,450. The basis of that plea was that the appellant promised to make payment by way of compensation in the sum of £51,450. The appellant was sentenced to a term of imprisonment and at the same time ordered to pay that sum as compensation. Some 5 months later, there was a final confiscation hearing at which the parties agreed a benefit figure of £77,343 and an available amount of £18,545.65; a confiscation order was made in that amount and, at the request of the Crown, it was to be paid by way of compensation. The substantive issue in this appeal was what the consequences were for failing to comply with s. 15(2) of the Proceeds of Crime Act 2002 (“POCA”), which provides that, if confiscation proceedings are postponed, the court must not in the intervening period make certain sorts of financial orders, including compensation orders.

The appeal was dismissed. Although the Crown conceded that an initial compensation order in sentencing should not have been imposed, in the Court’s view it did not render it a nullity. The Court made reference to R v. Paivarinta-Taylor [2010] EWCA Crim 28, which concerned the provisions of s. 72A(9) of the Criminal Justice Act 1988, a section materially similar to s. 15(2) POCA. At para. [42] of Paivarinta-Taylor, Sweeney J said that in such circumstances “Parliament did not intend that the imposition of a fine before making a confiscation order should not render the fine itself invalid, nor did it intend that the Court could no longer proceed to consider the making of a confiscation order, and nor did it intend that the resultant order should be invalid”. In its judgment, the Court considered those observations equally applicable in the context of POCA. The Court rejected the contention that Paivarinta-Taylor could be distinguished and that there were any other grounds on which the compensation order should be varied. There was no danger of liability in this case as the Crown had made an undertaking it would not seek to enforce the confiscation order in such a way that the appellant could be liable for more than the £51,450 originally promised.

Max Hill QC, the new DPP, says that the CPS cannot sustain further cuts because digital technology is imposing heavy additional workloads on its lawyers. In his first appearance before the justice select committee Max Hill QC admitted that problems over disclosure had led to a fall in the number of rape and sexual offences charges.

The full piece can be read here.

Two former Tesco executives accused of masterminding a fraud that triggered the biggest financial crisis in the supermarket’s history have been cleared of fraud after a judge ruled that the case was “so weak” it could not go before a jury.

The full piece is available here.

The High Court has been told that the “corrupt and illegal practices” of the Vote Leave campaign in the 2016 referendum undermined the validity of the UK’s decision to leave the EU. The claimants in the matter contend that these must have consequences. Judgment on the application has been reserved and is expected this week.

The full piece can be heard here.

A coroner has expressed concern over the care given in prison to a man, Mohammed Saeed Alim, born Nick Riley, serving a sentence for a botched terrorism attack, who was found hanging in his cell.

The full piece can be read here.

If an offender is considered dangerous under the provisions of the Criminal Justice Act 2003 (“CJA”), a judge may impose an extended determinate sentence (“EDS”) upon them pursuant to s. 226A or 226B CJA. Pursuant to s. 246A CJA, an offender serving an EDS becomes eligible for parole after they have served two-thirds of the appropriate custodial term. Offenders serving other determinate sentences become eligible for parole after half of their sentence.

The judge imposed an EDS on the appellant for 10 counts of rape. The custodial term was 21 years and the extension period four years. The appellant sought judicial review of that sentence on the basis there was no justification for the difference in treatment in relation to eligibility for parole. He claimed that this was unlawful discrimination within Article 14 ECHR, combined with Article 5 (the right to liberty). Article 14 prohibits discrimination on any ground such as sex, race or “other status”. The claim was dismissed by the High Court but a certificate was granted permitting a leap-frog appeal to the Supreme Court.

The Supreme Court, by a 3-2 majority, dismissed the appeal. It was agreed that the right to apply for early release comes within Article 5. As to Article 14, there were two issues: (i) whether the different treatment of the appellant fell within the meaning of “other status”; (ii)(a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (ii)(b) whether there is an objective justification for the difference in treatment between the categories of prisoners.

On (i), considering all the relevant case law and bearing in mind that the grounds within Article 14 are to be given a broad meaning, the Court held by a majority that the difference in treatment of EDS prisoners in relation to early release is within the scope of Article 14. On (ii)(a), again by a majority, the Court considered that EDS prisoners are not in an analogous situation to other prisoners. Different sentences regimes had to be considered as different entities and therefore those serving under different regimes are not in analogous situations. On issue (ii)(b), even if they were in analogous situations a majority held that the difference in treatment could be objectively justified as the aim of the EDS provisions, which includes public protection, is legitimate and the regime is neither arbitrary nor unlawful.

Lord Carnwath dissented on issue (i) on the basis that the difference of treatment of EDS prisoners is not attributable to some status for the purpose of Article 14, such the provision is not applicable. Lord Mance and Lady Hale dissented on issue (ii). As for (ii)(a), they held that EDS prisoners were in an analogous situation to other prisoners serving either determinate sentences or discretionary life sentences as the essence of the right in question in all cases is liberty. As Lady Hale put it, for all three categories of prisoner the most important question from their point of view is “when will I get out?” Regarding (ii)(b), both held that there is no justification for the difference in treatment and hence would have allowed the appeal. In their view, there was no justification for insisting an EDS prisoner stay in prisoner longer where a discretionary life sentence prisoner, who is likely to be more dangerous, would be considered for release after half of what would have been an appropriate determinate sentence.

The appellant submitted that during his examination-on-chief the judge intervened in a manner more akin to that of prosecution counsel. The judge was said to create an intimidating and inhibiting atmosphere which prevented the appellant from telling his story freely. He also asked the appellant about an incident which had been ruled inadmissible in evidence, and summed up in a way that drew upon and enhanced the arguments of the prosecution. The Crown submitted that while the interventions were unfortunate they did not make the conviction unsafe. The Court cited the core authorities on the law before stating that the test was whether there was a real risk that the jury was materially impeded from considering the prosecution and defence cases fairly and reaching a just verdict on the evidence.

The appellant’s submissions centred on four complaints: (i) the judge intervened during the appellant’s examination-in-chief to attempt to pin down the nature of the appellant’s relationship with the complainant; (ii) the judge warned the appellant that he could not attack the character or credibility of the complainant or put forward evidence of his own good character; (iii) the judge wrongly criticised the appellant in front of the jury for not discussing the complainant’s previous sexual behaviour that night, despite having himself made a ruling that this was not admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999; (iv) in his summing up the judge dismissed the defence’s case and amplified the prosecution’s, for example by emphasizing the location and nature of the complainant’s bruising

The Court held that there was no force in complaint (i). The judge was unsubtle in his questioning but not unfair. On (ii), the warning was appropriate because it was in the defendant’s own interests for him to know that if he did attack the complainant’s character then his previous convictions could be placed before the jury. On (iii), the Court agreed that the effect of this intervention was to make the appellant look evasive for no good reason. Having first asked the appellant about an episode which he ought not to have been asked about, the judge then made it look as though the appellant was to be criticised for not having mentioned it before. However, while the judge clearly over-stepped his role, he did not prevent the appellant from getting across his account and did not interfere with the account of the critical events in the period when he was alleged to have raped the complainant. Counsel for the appellant accepted that it would be difficult to argue that judicial intervention by itself had a material effect on the trial. Finally, on (iv), the Court held that the judge’s summing up, though again slightly inappropriate in its portrayal of the evidence, was not fundamentally unbalanced. It was not unfair for the jury to be reminded of the weaknesses in the appellant’s case.

The appellant’s offending involved frauds against a company called Sheaf Power Ltd. By impersonating the Chairman of that company fraudsters persuaded the financial controller of that company to transfer money to five different individuals, including the appellant. The appellant pleaded guilty to transferring the money, totalling £15,000, out of his account knowing that the money was not his. He played no role himself in stealing or defrauding the company but could offer no explanation as to how the money came into his account. The victim personal statement of the company’s managing director stated that as a result of the fraud one employee had been made redundant, the financial controller had resigned, and the then managing director had died of a heart attack caused by stress. The appellant was sentenced to two-and-a-half years’ imprisonment under a Category 5 sentence for offences involving sums of £10,000 to £100,000. He appealed.

On appeal, the appellant submitted that the judge at first instance took too high a starting point for the sentence. He had a sentence in mind, before credit for the late guilty plea, of three years. This is at the very top end of a Category 5 sentence, despite the £15,000 sum involved falling significantly nearer the bottom of that range than the top. The appellant’s culpability was also minimal.

Under the guidelines for a Category 5B offence the correct starting point of a sentence for a fraud involving £50,000 is eighteen months. The Court held that eighteen months also formed the correct starting point for the sentence in this case, despite the relatively low value of the fraud. The evidence of real harm justified taking a higher starting point than the simple value would suggest, but not as high as the judge at first instance did. The appellant could also point to significant mitigating factors. The proper sentence after trial was therefore around sixteen months’ imprisonment, revised down to thirteen months after the application of the 15% credit for the late guilty plea.

The appeal was allowed. The sentence of two-and-a-half years’ imprisonment was quashed and substituted with a sentence of thirteen months’ imprisonment.

The first appellant submitted that he had admitted assault at an early stage and been prepared to plead to common assault. He had further admitted this during his evidence. He submitted that the evidence of the victim supported this being no more than an assault, and CCTV footage was also consistent with it being assault. In these circumstances the judge should have left an alternative count of assault to the jury. The other appellant submitted that, as the case against him was that he was a secondary party to his friend’s actions, if the conviction against his friend was unsafe then so was his. He argued that the jury had been faced with a stark choice of either letting them get away with violence on the street or interpreting what they saw on the CCTV footage as an attempted robbery involving both appellants.

The court held that this alternative verdict of assault was not borne out on the evidence CCTV footage showed a prolonged incident. A verdict of assault would not have done justice to the gravity of the case which was alleged to have been both defendants demanding the victim’s property from the outset. The judge was not obliged to leave the alternative count to the jury. The court also noted that neither counsel raised this issue with the judge before or during his summing-up.

Lord chancellor David Gauke has welcomed the arrival of the ‘big four’ professional services firms (Ernst & Young, Deloitte, PWC, and KPMG) to the legal market, hailing it as providing ‘additional choice for consumers’.

The full piece can be found here.

The House of Commons Justice Select Committee has asked the Ministry of Justice to answer several questions about the implications of Brexit on the justice system by 10 December – the day before MPs vote on the deal Theresa May has agreed with EU leaders.

The full piece can be found here.

US President Donald Trump’s former lawyer Michael Cohen has admitted he lied about a Trump property deal in Russia during the 2016 election. He said he did so out of loyalty to Mr Trump.

More details can be found here.

The appellant was convicted for the gross negligence manslaughter of Shane Wilkinson (SW) and three counts alleging breaches of ss. 7 and 37 of the Health and Safety at Work etc Act 1974 (“the 1974 Act”). SW was a labourer on a building site, of which the appellant was construction site manager. SW was standing at the end of an L-shaped trench, which had been dug for the purposes of laying drainage, when the trench collapsed, burying him. The prosecution case at trial was that the accident was entirely foreseeable and preventable and had been caused by the gross negligence of the appellant; the trench was dug vertically and was unsupported and, as such, was an obvious risk about which the appellant either knew or should have known. The judge, when rejecting a submission of no case to answer on the basis that there was no evidence that the appellant knew about the trench, had replied ‘he should have’: this formulation was included in the written route to verdict. The appellant appealed against his conviction on the limited grounds that, on the basis of the ratio in R v Honey Rose [2017] EWCA 1168, he could not have been convicted if he did not know the trench was being constructed in an unsafe manner but should have known.

The Court dismissed the appeal. According to the Court, the ratio in Honey Rose is that “[t]he question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach” ([26], citing Honey Rose at [80]). The evidence in this case regarding the manner in which the trench had been constructed and dangerous workmanship was evidence from which the jury could have concluded that the appellant had actual knowledge of the same, or otherwise adopted a wilful blindness to the excavation of what would necessarily be a deep drainage trench in unstable ground and therefore intrinsically dangerous. Thus, the factual matrix in this case was a question of when, not if; consequently, there was reasonable foreseeability of a serious and obvious risk of death to anyone near or in the trench. The facts of the case did not permit the appellant to argue that but for the collapse, no objective observer would have been aware of the risk.

This was an appeal by way of case stated from the Crown Court which raised the question of whether a police constable was acting in the execution of his duty when he was assaulted by the appellant. The facts, as found by the Crown Court, were as follows: three police constables on patrol in an unmarked vehicle spotted the appellant, who fitted the description of a person who might be carrying drugs or weapons, while cycling home. They asked the appellant to stop and, when the appellant failed to do so, PC Haroon, who was not exercising his power of arrest or stop and search, took hold of his arm; a fight ensued in which the other officers became involved. In the struggle, the appellant bit PC Dolling, who believed the other officers were trying to detain the appellant, and had tried to restrain the appellant’s arm in the belief he might be reaching for a weapon. The appellant was charged under s. 89(1) of the Police Act 1996 of assaulting each of the three constables in the execution of his duty; he was only convicted of the offence in relation to PC Dolling. The appellant submitted on appeal that a police constable who assists in an unlawful detention is himself acting unlawfully, even if the PC’s proximate purpose in using force is to prevent a breach of the peace or the commission of a crime. Thus, the argument went, the Crown Court was not entitled to find that PC Dolling was acting in the execution of his duty.

The Court rejected that submission, holding that the Crown Court was entitled to find as it did. On the facts found, PC Dolling reasonably believed that the appellant might be about to use force which was excessive and which would constitute an unlawful assault, even if the attempt to detain him was itself unlawful. Whether a police officer is acting lawfully and in the execution of his duty depends on the reasonable beliefs and intentions of the officer; it does not depend on the knowledge or beliefs of the defendant. On this basis, the Crown Court was entitled to find that PC Dolling was acting in the execution of his duty when he was assaulted by the appellant.

There are two further matters to note about the Court’s judgment in Dixon.

First, the Court highlighted the tension between two authorities referred to by the appellant in argument – Cumberbatch v Crown Prosecution Service; Ali v Director of Public Prosecutions [2009] EWHC 3353 (Admin) on the one hand and Joyce v Hertfordshire Constabulary (1985) 80 Cr App R 298 on the other. Although it was not necessary to resolve the issue for the purposes of this case, the Court said that the “court in Ali may have been misled by [an] error in the report of Joyce” ([27]), such that the facts of both cases were not distinguishable but on all fours with one another.

Second, the Court highlighted that difficulties can arise in identifying when a police officer is acting in the execution of his duty and continued:

“[t]his underlines the importance of the point made by Donaldson LJ in Bentley v Brudzinski (1982) 75 Cr App R 217, 226, that prosecutors should consider making an alternative charge of common assault when they have reason to think that there may be an issue as to whether a police constable was acting in the execution of his duty but that the defendant may nevertheless be guilty of a common assault by reason of having used unjustified force. Unlike on a trial on indictment, magistrates at a summary trial have no power unless provided specifically by statute (e.g. section 24 of the Road Traffic Offenders Act 1988) to find an accused not guilty as charged but guilty of a lesser offence, even if (as in the case of common assault and assaulting a constable in the execution of his duty) the lesser offence is wholly encompassed within the offence charged. Unless, therefore, there is an alternative charge of common assault, a finding that a constable was not acting in the execution of his duty when assaulted by the defendant must lead to the defendant’s complete acquittal if the only offence charged is an offence under section 89(1) of the Police Act 1996.” ([34])

In a debate in parliament, Ann Coffey called for an independent inquiry into what she describes as ““the crisis engulfing the criminal justice system’s approach to rape cases”. The debate comes after the Guardian revealed in September that less than a third of prosecutions brought by the CPS against  young men result in conviction.

The full piece can be read here and an opinion piece on the topic, by Julie Bindel, co-founder of the law-reform group Justice for Women, here.

Lord Burnett of Maldon, giving evidence to a Commons select committee, said that the Courts of England and Wales are suffering from decades of neglect and need an injection of hundreds of millions of pounds for the repairs.

The full piece can be read here.

A retired lecturer who is paralysed from the neck down should, it has been argued, be able to preserve his dignity by choosing the time of his death. In an emergency appeal for permission to bring the case before the Supreme Court, it was contended that the Suicide Act 1961 is incompatible with human rights.

The full piece can be read here.

The appellant had been convicted of VAT fraud in 2007. Confiscation proceedings under Part VI of the Criminal Justice Act 1988 ensued and the appellant was ordered to pay around £16,000,000. In 2016, under section 80 of the 1988 Act, the CPS successfully applied for a receiver to be appointed to enforce the confiscation order against the appellant.

In June 2017 a court order was made amending the schedule to the 2016 receivership order to include certain pension policies in the appellant’s name. The appellant challenged that order. He case was that the pension policies have as yet no realisable value and that they will continue to have none for a number of years. That being so, he argued that they cannot represent ‘realisable property’ within the meaning of the 1988 Act.

The term realisable property, found in section 80 of the 1988 Act, is defined under sections 74 and 102 of that Act to include any property held by the Defendant and any property that the Defendant holds an interest in. The appellant, appearing in person, sought to rely on a number of authorities including R v Chen [2009] EWCA Crim 2669 to argue that pension policies should not count.

However, the Court pointed out that the issue in Chen concerned the policies’ worth rather than whether they were ‘realisable property’ at all. The present appeal was different. No issue arose as to either the value of the pension policies or the size of the confiscation order. Under the plain interpretation of the 1988 Act, pension policies clearly were included in the definition of realisable property. The appeal was dismissed.

The Claimant was sentenced to life imprisonment with a minimum term of 35 years custody after being convicted of joint enterprise murder in 2009. Though not present at the time of the murder he was found guilty of organising a planned robbery that resulted in the victim being battered to death in his own home, on the basis that he foresaw that as part of the robbery serious injury might be inflicted on the victim. The Claimant unsuccessfully pursued an appeal to the Court of Appeal in 2010. However, an error of fact in the reporting of that case stated that the Claimant had told the robbers “to simply threaten the deceased and not to hit him”. This was not true.

Subsequently, in 2016, the Supreme Court ruled that the law required intention, not merely foresight, on the part of a defendant before he may be property convicted. The trial judge in 2009 therefore unwittingly misdirected the jury. The Claimant applied to the CCRC to take on his case, but they declined. He applied to judicially review that decision.

The test for whether the CCRC should refer a case back to the Court of Appeal is laid down in section 13 of the Criminal Appeal Act 1995. The CCRC should not refer a case unless there is a real possibility that the conviction would not be upheld were the reference to be made. In R v Johnson [2016] EWCA Crim 1613 the Court of Appeal considered how section 13 should be applied to pre-Jogee joint enterprise cases. The Court held that a misdirection on this aspect of the law in itself will not make a conviction unsafe. The burden is on the applicant to show that a substantial injustice had been done, a high threshold, and to demonstrate that the change in the law would have made a difference to the verdict.

The Claimant submitted that a substantial injustice had been done. The plan for the robbery had been to not use violence; the victim’s resistance was unexpected. The fact that the victim produced a knife to defend himself could not be blamed on the Claimant. The Claimant accepted that the challenge to the CCRC’s decision had to be on traditional public law grounds, namely that the decision was irrational or that the CCRC had misdirected itself in law. The Claimant argued that the CCRC had indeed misdirected itself by relying on the decision in Johnson, when the actual test was laid down in section 13.

The Court rejected both of these submissions. There was no plan for the robbery to proceed without violence – rather, there was a plan to proceed and use violence only if need be. The reporting of the 2010 appeal was mistaken in stating that the Claimant advised against violence. The robbers carried weapons to the premises, the Claimant via telephone actively approved of and encouraged the beating of the victim, and the violence began early on in the evening. These all came together to make an extremely strong case for the necessary intent. There is no sensible basis on which the conviction could be regarded as unsafe, let alone a substantial injustice. There was no basis for concluding that it was irrational for the CCRC to reach the same view.

Secondly, there was nothing in the criticism of the approach to the law taken by the CCRC. Seeing as their task is to attempt to predict a real possibility of a successful appeal, they were bound to do so from the starting point of examining the legal approach which would be taken by the Court. That approach, the substantial injustice test, is laid down in Johnson. The Court declined to criticise or overrule the substantial injustice test, noting that it was explicitly approved by the Supreme Court in Jogee.

The application was dismissed.

The Supreme Court has said it will consider whether to hear an appeal from the UK government over a legal challenge to the Brexit process.

The European Court of Justice will examine later this month whether the UK can revoke Article 50 before 29 March 2019 if MPs vote to do so, but the Government wants to prevent the hearing from happening.

More details can be found here.

The draft withdrawal agreement, published last week, makes no mention of Europol and says the UK would be locked out of EU tools including the Schengen Information System (SIS II), European Arrest Warrant and European Criminal Records Information System (ECRIS) when the transition period ends.

The Police Federation, which represents 120,000 rank-and-file officers, said they had “no idea what the policing landscape will look like post 29 March 2019”.

More details can be found here.

The Court in this case considered two cases that were not connected on the facts, but raised issues concerning the validity of the indictments uploaded by the prosecution onto the Court Digital Case System (“the CDS”) on which both appellants were convicted. In both cases the jury were put in charge, and returned a verdict of guilty on counts contained in an indictment uploaded to the CDS. After conviction, a court officer realised that the form of indictment used at trial differed from the indictment on which the appellant had been arraigned, in particular by adding one or more counts on which the jury had returned a guilty verdict, but in respect of which the applicant had not entered a plea. The prosecution had intended to apply to amend the indictment under s. 5 of the Indictment Act 1915, but had failed to do so.

Each appellant, while accepting that they were not prejudiced by these procedural irregularities, contended that the form of indictment on which they were tried was a nullity as the only valid indictment was the unamended original; accordingly, their convictions on the CDS indictments should be set aside or declared to be invalid. In particular, reliance was placed on R v. Leeks [2009] EWCA Crim 1612; [2010] 1 Cr App R 5 where a guilty plea to a count purportedly added to an indictment without amendment was held to be a nullity and was quashed.

The question was whether the form of indictment on which the trial proceeded had been ‘preferred’ within the meaning of s. 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (“the 1933 Act”), as amended by the Coroners and Justice Act 2009 (“the 2009 Act”), with the result that the draft indictments uploaded to the CDS became indictments “to be proceeded with accordingly”. The Court held that they were. The revised draft indictments had been preferred by being uploaded to the CDS in accordance with Rule 10 of the Criminal Procedure Rules and, in the absence of any objection before the commencement of proceedings made by the appellants under s. 2(6ZA) of the 1933 Act, there could be no objection made now.

A further issue raised by the appellants was whether the continuing existence of the original indictment somehow rendered the proceedings a nullity. The Court held that such an argument was wrong for two reasons: (i) an accused may have one or more indictment outstanding against him for the same offence (R v. Poole [1961] AC 223), all that is required is that the prosecution choose between them, as they did in this case; and (ii) that the applicants were not arraigned on the new indictment does not invalidate proceedings where the charges are disputed.

The Court emphasised that Leeks no longer represented the law and said the following about the modern practice about uploading indictments to the CDS:

“[t]he modern practice of uploading draft indictments onto the CDS, intended to be convenient for all parties and to improve efficiency, is capable of leading to confusion and serious error…. The risk of multiple versions and uncertainty as to which is the “true bill” is obvious. We emphasise that it is the duty of both prosecution and defence representatives to ensure that steps are taken to regularise the position as the case progresses and, in particular, that the form of indictment used at trial has received all necessary consideration. In that regard, it would also obviously be good practice for trial judges to enquire of counsel whether there were any outstanding issues in relation to the indictment before it is read before the jury at trial: whether that should be incorporated into a rule is a matter for the Criminal Procedure Rule Committee.”

Finally, one of the applicants sought leave to appeal against sentence on the ground the sentencing judge should not have imposed an extended determinate sentence. This failed; the circumstances of the offence – a sustained, premeditated attack on an ex-partner with ammonia – in itself justified a finding of dangerousness.

Virginia and Alan Shirt (VS and AS respectively) were convicted of conspiracy to defraud by making false representation contrary to s. 2(1) of the Fraud Act 2006. Two co-accused were on the indictment, but they pleaded guilty. The facts revealed that VS and AS had been party to an agreement to forge the will of VS’s sister’s partner, such that his property would devolve on VS’s niece. At trial, under s. 74(1) of the Police and Criminal Evidence Act 1984 (“PACE”), the trial judge allowed the prosecution to admit the co-accused’s pleas of guilty to the indictment. The defence case was that such evidence should be excluded under s. 78 PACE because of its prejudicial effect; it was said the admission of the evidence would have the effect of importing the complicity of the appellants in the conspiracy. The appellants appealed against their conviction on the basis that by not exercising his discretion under s. 78 PACE, the trial judge had rendered the proceedings unfair such that the appellants’ convictions were unsafe.

The appeal was dismissed. The Court acknowledged, as the judge did, that the introduction of such evidence would have raised difficulties for the defence on the issue of the genuineness of the will and the existence of a conspiracy, but it did not have a similar impact upon the other issues which the jury had to resolve; for example, the prosecution still had to prove that the appellants were a knowing party to the conspiracy and that they had acted dishonestly. These were the key issues which the jury had to decide to convict the appellants.

The applicants, Rahman (R), Ali (A), Hussain (H) and Aziz (AZ) were all convicted of an offence of engaging in conduct in preparation of terrorist acts, contrary to s. 5(1)(a) of the Terrorism Act 2006. The facts disclosed that all of them had been involved of the discussion of extremist Islamic ideology and, particularly, that a bomb, along with other dangerous paraphernalia, had been found in AZ’s car. The applicants’ advanced four grounds of appeal on this renewed application for leave to appeal against conviction:

• the trial judge should have discharged the jury at an early stage of the trial in light of the terrorist incident at Westminster Bridge on 22 March 2017 as thereafter a fair trial was not possible;
• the trial judge should have lifted the anonymity order which had been made in respect of two important prosecution witnesses as this deprived the defence of being able to properly test the credibility of that witness;
• the judge discharged one juror on the grounds of bias and, in those circumstances, he should have discharged them all, especially where other members of the jury had failed to report the bias of that particular juror; and
• the judge’s summing up of the evidence given by an important prosecution witness was unbalanced and unfair to the accused.

The Court refused leave to appeal and addressed the issues as follows:

• The discharge of the jury is a matter of the trial judge’s discretion and it was well established the Court would only interfere where the decision was wrong in law or beyond the ambit of decisions reasonably open to him. This was not such a case; the judge dealt with the incident expertly, directing himself correctly in law with reference to, inter alia, R v Abu Hamza [2007] 1 Cr App R 27 and, therefore, it was impossible to argue that the course he took was one which was not open to him. The result did not lead to an unfair trial; some four months had passed between the Westminster Bridge attack and the retirement of the jury and other terrorist incidents had happened in the intervening period, in respect of which the accused had taken no action.
• The test for lifting an anonymity order is found in s. 91 of the Coroners and Justice Act 2009. The issue in this particular case, on the applicants’ submission, was whether the anonymity orders had arguably prevented the applicants from making points which they would have otherwise been able to make, and whether their inability to make those points rendered the trial unfair. The Court held that the applicants had not been so prevented; the judge had directed himself correctly in law and considered all the relevant factors.
• The judge had, again, dealt expertly with the problem that arose. He was entitled, after making enquiries of the jurors who were involved in the incident which led to the discovery of juror 1’s bias, not to make further enquires of the jury and treat that breach of their duties as comparatively minor. Thus, there was no room for challenge.
• The judge had formulated a number of questions about the evidence of the prosecution witness in question for the jury, as he was entitled to do. On each occasion, he made it clear to the jury that it was a matter for them whether they wished to consider the question at all, and it was for them to determine what answer they gave to those questions. He did no more than assist the jury with questions they might want to ask. Again, there was no sufficient ground for impeaching the judge’s summing up.

Finally, the Court dealt with a renewed application by AZ for leave to appeal against sentence on the basis that the life sentence imposed on him was manifestly excessive and should be substituted for an extended determinate sentence. This application failed; while the Court recognised that the sentence was “a heavy one for the applicant” ([58]), the use of a bomb, the purpose of which was to kill, maim, and spread fear, could properly lead to a life sentence, as Kahar [2016] 2 Cr App R (S) 32 made clear. The judge had considered the extended sentence but was correct in his observation that it was impossible to predict when AZ would cease being a danger to the public. Accordingly, the life sentence was justified.

Proceedings against the respondent (E), who was charged on an indictment alleging assault by penetration and sexual assault, were stayed on the basis a fair trial would not be possible. E was alleged to have forced himself upon his two step-sisters, EC and R. It was said that E forced his way into EC’s pyjama bottoms and penetrated R with his fingers. At trial, the defence submitted that the case be stayed as an abuse of process of the court on the basis of a concession made by the prosecution that there had been a breach of duty by the police which led to the loss of material which might have supported E’s case. The breach of duty in question related to the police’s failure to seize EC’s phone. The prosecution sought leave to appeal against the terminating ruling of the judge on the basis that (a) there was no breach of duty, seeking to withdraw the concession, and, in any event, (b) it was still possible for E to have a fair trial.

The Court granted leave and allowed the appeal, ordering that proceedings in the Crown Court be resumed before a different judge. The application for leave fell to be considered pursuant, to the provisions of s. 67 of the Criminal Justice Act 2003, which as elucidated in R v. B [2008] EWCA Crim 1144 at [19] by Sir Igor Judge P, meant that “leave will not be given… unless it is seriously arguable… it was unreasonable for [the judge’s discretion] to have been exercised in that way”. It considered the following two points:

• The concession: Such a change of position would only be permitted in exceptional circumstances (R v.R [2015] EWCA Crim 1941). This was not such a case and, in the Court’s view, it was at least arguable that it was appropriate that the prosecution should make the concession.
• Fair trial: The proper approach on such issues was to consider whether the trial will be fair generally, which required an analysis of all the circumstances of the case, being, necessarily, a fact sensitive decision. The judge, in the Court’s view, took a decision that was not open to him. This was based upon (i) the undue weight which he had placed upon a single message between EC and her father, which did not mean it would be likely that material relevant to the offences would be on the device; (ii) the weight he had placed on the observation that a phone is a contemporaneous record of a young person’s life; and (iii) a direction to the jury appropriate to the facts of the case would have been effective.

Children may be most at risk of being stabbed as they make their way home from school, according to new research published in the wake of five fatal stabbings in a single week in London.

A report by doctors at The Royal London Hospital – Europe’s leading major trauma centre – and Queen Mary University of London, published by the BMJ Open journal, reveals the frequency of knife-related incidents involving youngsters spikes between the hours of 4pm and 6pm on weekdays.

The full piece can be found here.

Republicans expanded their majority in the Senate, but the Democrats’ win means they can provide a legislative check on Trump’s presidency for the first time

More details can be found here.

Millions of people have fallen silent to remember those killed and wounded in conflict, as the nation commemorates 100 years since Armistice Day.

More details can be found here.

The appellant’s case relied on four particulars. Firstly, though in the absence of the jury, the judge made comments indicating to the appellant that he believed she was guilty. He told the appellant’s counsel in open court to give his client “robust advice” due to the strength of her evidence and it would be “too late to say anything realistic on her behalf once the jury returned”. The appeal court found that it was not appropriate for the judge to indicate his views. The appellant was in the charge of the jury. The judge’s role was to be a neutral umpire. By indicating that he had an adverse view of her case, she may have thought that because the judge had formed the view he had indicated she was not going to get a fair trial. It may also have weighed on her mind when she gave evidence and thereby been a handicap to the fair giving of that evidence.

Secondly, the judge withdrew bail and remanded the appellant in custody the night before she was due to give evidence despite the prosecution not seeking a remand. Hamblen LJ found this decision to be questionable, especially seeing as the appellant was given no time to make arrangements for the care of her 14-year-old daughter. The court also emphasized that this decision is likely to have reinforced an impression that the appellant was not going to get a fair trial and to have provided a further handicap to the fair giving of her evidence.

Thirdly, he berated the appellant’s daughter after requiring her to apologise to him for being rude the previous day. The transcript showed that he threatened to send her to the cells for facial reactions to the evidence, speeches or summing up. The appeal court found this deeply inappropriate.

Fourthly, when the appellant was giving her evidence the judge posed questions more akin to a cross-examination than clarification. The appeal court reiterated authority that particular care must be taken for judges to not intervene unnecessarily in examination in-chief. Such an intervention could negatively impact the jury’s view of the defendant.

The appeal court concluded that the overall impact of these matters may well have handicapped the appellant in the giving of her evidence, and thus that the appellant did not receive a fair trial. The conviction was set aside.

The Claimant, his family, and the victim’s family all live in Harrogate. The Claimant had been sentenced in July 2015 to six years’ imprisonment for manslaughter and six months consecutive for assault occasioning actual bodily harm. He was therefore due to be released at the halfway point, on 1 October 2018. The previous year his victim’s next of kin made representations to the NPS, arguing both that the Claimant might be subject to reprisals if he moved back to the area and that were he to encounter members of his victim’s family great emotional harm to them might result. They requested an exclusion zone comprising the whole of North Yorkshire. The NPS rejected this but accepted that Harrogate should be within the zone, pointing out that the victim’s partner worked at the hospital, was often required to travel outside the hospital on outreach work, did much of her shopping in Harrogate, and was in fear of seeing the Claimant. The NPS decided that the Claimant could only go to his family home with a set access route and set dates and times, as authorised by his probation officer.

The Claimant challenged this decision on two grounds. First, it was submitted that the NPS should have assessed his daughter’s best interests under s.11 of the 2004 Children Act. The judge rejected this as a misreading of the statute. Unlike s.1 of the Children Act 1989, in a case where a family court has to determine a question with respect to a child’s upbringing, s.11 of the 2004 Act does not necessarily make the child’s interests paramount, especially not in the present context. The NPS were right to enquire of the local children’s services if there was any reason why the Claimant should not go back to live with his daughter, but having established this, the NPS proceeded properly in assuming that a resumed family life was desirable and weighing this in the balance. There was no further dimension to be explored looking specifically at the Claimant’s daughter or wife.

Secondly, the judge noted that this was not a case where the daughter was barred from seeing the Claimant. They could both visit each other. The NPS has a wide margin of appreciation to set licence conditions for released prisoners, as well as extensive experience in doing so, and it was not the role of the court to interfere unless the decision was manifestly ill-founded. The Claimant was wrong to argue for the court to undertake a merits based assessment of the NPS’s decision. The NPS was right to consider both the low risk of a traumatic encounter coupled with the high probability of distress at such a prospect.

The application was dismissed. The Claimant’s conditions, including the exclusion zone, were upheld but would remain under review for the remaining three years and three months of his sentence.

The court agreed that in order to discharge the state’s obligations under Art 5(4) to a prisoner serving a sentence of IPP the Parole Board must review his detention a short time interval before the expiration of the tariff period. It is for the court to make its own decision as to the reasonableness of the length of that interval, without being restricted to a Wednesbury style review. A generally reasonable time period is 14 months.

The Claimant’s hearing was intended to be held in February 2016, 14 months after the last substantive review in December 2014. In the event a hearing was held on 22^nd June 2016, where a decision was made to defer until a later date. A final hearing was held on 22^nd March 2017. The period of deferral was about nine months and the eventual hearing took place about two years and two months after the previous substantive review.

Holroyde LJ held that this delay breached Article 5(4). A lack of resources is not a good enough reason to deprive an individual of their Article 5(4) rights. The Parole Board overshot its own guidelines for listing hearings by four months. The fact that the Claimant had admitted drug use prior to the 22^nd June 2016 hearing made it necessary to re-assess risks involved in releasing him, but was not a reason not to list a speedy hearing. The Claimant was entitled to damages to compensate him for the period from 1^st March to 22^nd June 2016.

Further, while the Claimant’s admission as to his drug use was a good reason for the Parole Board to agree to defer any further hearing on 22^nd June 2016, the eventual review in March 2017 was held too late. There was no assurance given to the Claimant that the review would be held before then, and so he could not have a legitimate expectation that this would be the case, however, the  communications between the parties were to the effect that a hearing would be listed in October 2016 or very soon after. The Claimant was entitled to recover damages for breach of his Article 5(4) rights between 1^st November and 22^nd March 2017. He was also entitled to damages to delayed liberty – had the review been held in October, as it should have been, it was probable that he would have been released.

The National Crime Agency is investigating Arron Banks and his Leave.EU campaign for alleged offences committed at the 2016 EU referendum. The watchdog said it suspected Mr Banks was not the “true source” of loans to the campaign and the money had come “from impermissible sources”.

The full piece can be found here.

The Head of Scotland Yard, Cressida Dick, was speaking after Sara Thornton, the chairwoman of the National Police Chiefs Council (NPCC), said officers should not have to deal with reports of misogyny, calling for them to focus instead on “core policing”.

The full piece can be found here.

Sir Philip Green is to make a formal complaint against the Labour peer who exposed him as the businessman at the centre of sexual harassment allegations. It has since emerged that the law firm Gordon Dadds, which is acting for The Daily Telegraph in the case, employs Lord Hain as a global and governmental adviser.

Sir Philip now intends to complain to parliamentary authorities that Lord Hain failed to disclose he had a financial relationship with the Telegraph’s lawyers.

More details can be found here.

Prosecutors and police are failing to investigate thousands of cases including fraud, rape and modern slavery efficiently because the required skills and resources are critically low, the outgoing director of public prosecutions has said in a newspaper interview that has sparked widespread anger.

More details can be found here.

The appellant (‘AG’) sought leave to challenge his conviction for murder on the ground that the trial judge failed to leave to the jury the defence of loss of control contained in s. 54 of the Coroners and Justice Act 2009 (‘the 2009 Act’). The facts of the case revealed that AG had killed the deceased by striking him repeatedly with a hammer at least 18 times. AG’s case at trial was that the deceased had attacked him first with a hammer without warning. AG gave evidence to the effect that he could only recall striking three blows and could not explain the extent of the deceased’s injuries.

At the conclusion of the evidence, the trial judge rejected the defendant’s submission that loss of control should be left to the jury; he concluded that there was insufficient evidence, even on an interpretation most favourable to the defendant, for the defence to be left to the jury. AG contended that the judge was wrong in his analysis. Although the judge ruled in favour of AG on the first component of the defence (i.e. D’s acts resulted from a loss of self-control: s. 54(1)(a) of the 2009 Act), the conclusion that there was not sufficient evidence of a qualifying trigger was erroneous. Further, as to the third statutory component – i.e. whether a person in D’s circumstances might have acted in the same or a similar way (s. 54(1)(c)) – this was a matter to be left to the jury and, therefore, not a matter for the judge.

The appeal was dismissed and the conviction found to be safe. Despite concerns regarding the judge’s approach when considering the first two limbs of the defence, the matter was settled against AG through the judge’s assessment of the third statutory component. Here, on the evidence, after the first three blows struck by AG himself, he had then repeatedly struck the deceased, a much older man, whilst he was lying on the ground in no position to resist. Moreover, the assault lasted some 5 minutes. This was more than enough to justify the judge’s conclusion that someone in AG’s circumstances would most probably not have acted in the same or a similar way. Further, the Court noted that the third component of the defence required just as rigorous an evaluation by the judge as the first two; it was not a matter for the jury (see Gurpinar [2015] EWCA Crim 178, [2015] 1 Cr App R 463).

This was a reference by the Attorney General (‘AG’) under s. 36 of the Criminal Justice Act 1988 to refer sentences passed on the offender (‘MC’) to the Court as being unduly lenient. The focus of the AG’s reference was on a sentence passed, at the same time as others for three further offences, in respect of a conviction for possessing a prohibited firearm contrary to s. 5(1)(aba) of the Firearms Act 1968, an offence for which MC received five years’ imprisonment. The firearm in question was a 9mm Parabellum English Browning High Power Mark 1 type which had been found, with MC’s DNA on it, in a loft hatch in the communal area directly outside MC’s front door. The firearm, although not in working order, was capable of being fired manually. What was more, MC had carried out research on how to restore the firearm to technical working order.

For the AG, attention was drawn to the following in MC’s case: (1) the firearm was a genuine firearm which was capable of being fired manually; (2) the firearm was intended to be restored to working order by MC; (3) it was a firearm for which MC could have had no lawful use; (4) MC had a number of previous convictions, including previous convictions for serious violent offences and the commission of offences while on bail. Further, public policy considerations applied because of the prevalence and gravity of crime concerning the possession and/or use of firearms.

The Court found that the sentence was unduly lenient and that the AG had been right to focus his complaint on the firearm offence. Adopting the approach set out in Avis [1998] 1 Cr App R (S) 420, the following points were clear: first, the firearm was genuine, it could be fired and MC had researched how this might be done; second, the firearm had been secreted in a loft to which MC had access as and when he wished; third, it was clear MC intended to make use of the firearm for criminal purposes; fourth, MC had an extremely poor criminal record. Thus, the starting point should have been not less than eight years. Taking into account the 12% discount on sentence to which MC was entitled – as opposed to the 28% he had been given by the judge in the Crown Court – the appropriate sentence was one of 7 years on the firearm count.

The appellant (‘JL’) pleaded guilty at the earliest opportunity to an offence of neglecting a child; she was sentenced to a term of sixteen months’ imprisonment. A co-accused (‘SR’), JL’s partner, also pleaded guilty and received the same sentence. The victim was the couple’s baby son. Both JL and SR had taken drugs and drunk alcohol on the night of the incident. It was JL’s understanding that the baby, under SR’s supervision, was going to stay with friends and she was present as an overnight bag was packed. That did not happen; SR instead took the baby with him into the bed which he shared with the appellant, despite there being evidence that both had been warned about the risks of taking a small baby to bed.

JL appealed against her sentence on two grounds: (1) a starting point of two years had been too high in the circumstances and did not properly reflect her culpability; and (2) any custodial sentence should have been suspended. As for (1), the Court agreed that there should have been some distinction between JL and SR. JL’s culpability was significantly lower: she had not been party to the decision to keep the baby at home overnight nor had she taken the child to bed. Furthermore, she appeared to have been unaware that the child was in bed with her. This justified the imposition, taking into account her previous good character and obvious remorse, of a sentence of twelve months’ imprisonment.

Regarding (2), the Court was of the view that the sentence should have been suspended. JL did not pose a risk or danger to the public and rehabilitation was a prospect. Of particular significance in this case was the position of JL’s other three children. With a view to R v Petherick [2013] 1 Cr App R (S) 116, the Court was satisfied that significant weight should be given to the position of JL’s children. The judge’s sentencing remarks did not reveal consideration of those issues. Thus, the Court decided the sentence should be suspended, with a Rehabilitation Activity Requirement attached to that order.

The appellant was convicted of manslaughter, for which he received a term of 12 years’ imprisonment. He was also convicted of another count of conspiracy to pervert the course of justice; a one-year concurrent sentence was imposed on that count. A co-accused (‘LO’) was convicted on the conspiracy count and was sentenced to a term of 18 months’ imprisonment. The appellant and LO were in a relationship in which LO had given birth to two children. There were doubts about the true paternity of the children, but nevertheless the appellant was described as behaving ‘nobly’ (see [4]) as the father of both. The older child stopped breathing in the morning of 16 September 2014 at just 11 weeks old. A post mortem revealed the cause of death had been an injury consistent with baby shaking or a sudden impact on a soft surface. The appellant’s account of events was that the child had collapsed and he had accidently banged the child’s head on the side of the cot after he slipped on a changing mat.

The appellant appealed against sentence on the basis that 12 years was manifestly excessive; the appeal was allowed and a sentence of 8 years’ imprisonment was substituted, with the concurrent sentence on the perversion count standing. The Court’s attention had been drawn to two authorities which suggested that the sentence in this case was manifestly excessive: Burridge [2011] 2 Cr App R (S) 27, [2010] EWCA Crim 2847 and Attorney General’s Reference No 125 of 2010 (Draper) [2011] 2 Cr App R (S) 97. In the former, the Court had substituted a conviction for manslaughter for one of murder and imposed a sentence of 10 years’ imprisonment; the victim was an eight-week-old baby. In the latter, a four-month old baby was shaken to death. In that case, there had been both lies told to the authorities and a previous incident of violence against the child. Against the background of a plea of guilty at the first opportunity, the Court increased the sentence to one of five years. While the Court in this case appreciated that the judge had the benefit of presiding at the appellant’s trial, this was a case, as the judge had found, akin to those where the father had shaken the child out of exasperation, heedless that harm might be caused. Thus, the sentence did not reflect the culpability of the appellant and was ‘significantly’ too long (see [30]).

Healthcare behind bars is so poor in some prisons that offenders die because staff do not respond properly to medical emergencies, the Care Quality Commission says. Mental health services for the 40% of inmates who have psychological problems are particularly weak.

The full piece can be read here.

Two takeaway workers have been found guilty of manslaughter after a teenager with a nut allergy died after eating one of their meals. On Friday, Mohammed Abdul Kuddus, 40, the takeaway’s owner, and Harun Rashid, 38, alleged to be the manager, were found guilty of manslaughter by gross negligence.

The full piece can be read here.

This was a reference for a preliminary ruling under Article 267 TFEU from the High Court of Ireland. The request concerned the interpretation of Article 50 TFEU and of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework Decision’). RO is the subject of two EAWs issued by the courts of the United Kingdom and contended that, in light of the uncertainty regarding the UK’s exit from the European Union, it cannot be guaranteed that the rights which he enjoys under EU law will, in practice, be capable of enforcement thereafter. Therefore, he ought not be surrendered. He identified the following areas of EU law that might be engaged:

1. the right to a deduction of a period spent in custody in the executing Member State, provided for in Article 26 of the Framework Decision;
2. the so-called ‘specialty’ rule, the subject of Article 27 of the Framework Decision;
3. the right limiting further surrender or extradition, the subject of Article 28 of the Framework Decision; and
4. respect for the fundamental rights of the person surrendered under the Charter of Fundamental Rights of the European Union (“the Charter”).

Accordingly, the High Court made a reference to the CJEU for a preliminary ruling concerning the circumstances in which and the extent to which a requested member state is required by EU law to decline to surrender the person who is the subject of an EAW to the UK ([26]).

The Court answered the question as follows:

“Article 50 TEU must be interpreted as meaning that mere notification by a Member State of its intention to withdraw from the European Union in accordance with that article does not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union.”

Factual background

The appellant was born in Guinea and entered the UK clandestinely on a fake passport. On 3 December 2004 he claimed asylum. Following his entry into the UK he became addicted to drugs and was convicted of multiple offences of robbery and theft. An order for his deportation was made in 2011 but in 2013 the appellant made a fresh claim for asylum on the basis that he was stateless. He argued before the First-tier Tribunal that he wished to return to Guinea and had done everything he could to establish his nationality, but had faced insuperable obstacles on both fronts. The judge did not accept this evidence. The appellant had made no effort to contact any of his friends or family in Guinea, nor the college at which he studied, nor any agency such as the Refugee Council or Red Cross. On the contrary, the judge found that the appellant had been remarkably inactive in establishing his nationality and so could not be considered to be stateless. The appellant appealed to the Upper Tribunal on the basis that the judge had applied the incorrect standard of proof, unsuccessfully, and then to the Court of Appeal.

To what standard must an asylum seeker establish that he is stateless?

The appellant, supported by the UN High Commissioner for Refugees, argued that the standard to be applied to stateless persons should be the same as applied in refugee cases, such that statelessness must be established ‘to a reasonable degree’. Lord Kitchin noted that although the 1954 Convention defines the term stateless person in Article 1(1) it says nothing about how states are to determine whether a person is stateless. This may be contrasted with the Refugee Convention. The court agreed that the UNHCR Handbook is persuasive authority, and could find no fault with the approach taken by the Upper Tribunal in consulting it.

Further distinctions between refugee and statelessness applications arise out of the practical hurdles faced by both classes of individuals. It is very hard for refugees to establish anything more than a reasonable degree of likelihood that they will be persecuted if returned to the country of their nationality, and the consequences of an error may be very severe. In contrast, there are a number of steps stateless persons can take to prove their status without risk of harm, such as gathering evidence as to their identity and residence and making applications to their embassy. The appellant and the UNHCR submitted that the 1954 Convention must be interpreted in light of its human rights and humanitarian objectives, not least because of the serious impact of statelessness. Lord Kitchen agreed, but held that these did not absolve the appellant from attempting to prove his status given the ease with which such steps might be taken.

After finding support for this reasoning in the authorities, Lord Kitchin ruled that a person claiming to be stateless must take all reasonably practicable steps to gather together all documents and other material which evidence his or her identity and residence. The applicant ought also to apply for nationality of the state with which he or she has the closest connection. If the applicant comes up against a brick wall, then the adjudicator will decide whether the applicant has established statelessness on the balance of probabilities. If it is a case where it would not be reasonable to expect the applicant to take this course the Secretary of State will assist the applicant by making enquiries on their behalf, but there is still no reason why the issues cannot be decided on the balance of probabilities.

Conclusion

The appeal was dismissed; it was not necessary to consider the second ground of appeal.

In November 2017 a District Judge had ordered the appellant to be extradited to Lithuania. The Divisional Court had stayed this order in May 2018 due to the conditions in Lukiskes remand prison in Lithuania. The Lithuanian Prosecutor General’s Office had since given assurances that the appellant would (i) be guaranteed a minimum space allocation of no less than 3 metres per person, (ii) spend a maximum of 10 days on remand, and (iii) be held in the refurbished parts of the prison.

The appellant made three submissions. First, it was apparent that Lithuania considered the entirety of Lukiskes compliant with the ECHR, when the court had determined the opposite; secondly, the appellant might be held in Siauliai prison where there was less evidence about cell renovations; and thirdly, the assurances were vague and unspecific.

The court held that it was not appropriate to view friendly foreign governments through the lens of a technical analysis of the words used and with suspicion that they will do everything possible to wriggle out of their commitments. Lithuania, as a fellow Member State of the European Union, is such a friendly foreign government. This principle of mutual trust between Member States was recently reaffirmed by the Court of Justice of the European Union. Where an assurance is given, the executing judicial authority must rely on that assurance, at least in absence of any specific evidence that the prison would infringe the relevant article 3 protections.

Further, there was no evidence before the court to undermine the conclusion that the appellant would likely be held in Lukiskes prison. While the possibility could not be excluded that he might be held elsewhere, such as in Siauliai, this was not likely. Finally, the assurance was not overly general as it specifically referred to the renovated cells in Lukiskes prison. The latest report on prison conditions in Lithuania had raised no concerns about these cells. While identification of the actual cells, with relevant descriptions and even photographs, was to be preferred, it was not necessary. The appeal was dismissed.

It is the fourth year in a row that there has been a rise in homicide rates, while at the same time, fewer perpetrators are being caught. Charge rates have almost halved since 2015, from close to 100% to nearly 50%.

The full piece can be found here, with a statistical breakdown here.

Radical preacher Anjem Choudary, jailed for inviting support for the Islamic State group, has been released after serving half of his sentence. Up to 25 measures to control him have been prepared including a ban on preaching at or attending certain mosques, associating with people not approved by the authorities, non-supervised internet use, travelling outside the M25, and leaving the UK.

More details can be found here.

Senior House of Commons staff need to make radical changes, a report into bullying and sexual harassment in Parliament has said. Dame Laura Cox’s report details alleged sexual harassment by MPs: “Disturbing” cases have “long been tolerated and concealed”.

More details can be found here.

From Friday 12 October to Sunday 14 October there were no shooting reported throughout any of the city’s five boroughs. The milestone was marked as the overall murder rate continues to fall since a high of 2,245 was recorded in 1990. Last year saw the lowest murder rate recorded in the city since 1951, at just 292, although 2018’s total looks set to be higher.

The full story can be found here.

The issue in this case was how to interpret s. 4(2) of the Theft Act 1968 (“TA”); that is, the circumstances under which theft of land may properly be charged. The facts disclosed that the appellant, John Gimbert (“JG”), had taken dishonest advantage of his cousin, Janette, in his position as her attorney and had transferred property away from her to both himself and his family. The theft charges against him related to a property, 80 Malcolm Close (“the Property”), as well as sums of money. The appellant sought to appeal against his conviction on count 2 of the indictment, which related solely to his theft of the Property. JG’s case was that the facts of the case did not give rise in law to the offence of theft on the basis that ‘land’ generally, by virtue of s. 2(2) TA does not constitute property capable of being stolen for the purposes of s. 1(1) TA.

The appeal was allowed and the conviction on count 2 quashed for two reasons:

1. The Enduring Power of Attorney under which JG was purportedly acting was never registered, as is required by the Mental Capacity Act 2005. Further, Janette’s signature itself appeared on the transfer in favour of JG’s son. Thus, the fact that JG had (ostensibly) a power of attorney at the time of the transfer had no direct causal relevance to its actual execution because it was Jannette herself who executed the transfer.
2. Given the fact that JG was acting neither as an expressly appointed trustee in relation to the transfer nor as a personal representative of Jannette the relevant exception, i.e. s. 4(2), applied such that Property constituted land that was not capable of being stolen.

The Court also had before it a renewed application for permission to appeal brought by JG’s son, the individual in whose favour the transfer of the Property had been executed. He had been convicted, with JG, on a count of conspiracy to defraud and sought leave to appeal on the ground that, at trial, the judge should have acceded to a submission of no case to answer on that count.

The application failed. The trial judge had referred to the relevant principles (Galbraith, etc) and had reminded himself of Welham v. Director of. Public Prosecutions [1961] AC 103 and other such cases. The judge’s conclusion in rejecting the submission of no case to answer was reasoned and there was no proper basis for the Court of Appeal to interfere.

This was an appeal against an order extraditing the appellant granted by DJ Baraitser. The extradition was granted on the basis of mixed European Arrest Warrant (“EAW”), issued in 2006, which sought the appellant’s extradition for one accusation matter and five conviction matters. In June 2018, the Polish authorities produced an altered version of the original EAW, which now sought the appellant’s extradition on the basis of the same accusation matter, but only one of the previous five conviction matters. Correspondence between the Issuing Judicial Authority and the CPS revealed that the EAW had been partly amended.

The appellant’s case was that the EAW on which his extradition had been ordered was so defective, because of the subsequent amendments, as to an impermissible basis on which to order extradition. In oral argument, the appellant concentrated on two propositions: (i) there was no such thing as an amended warrant; and (ii) as a matter of fairness, the appellant was entitled to have his challenge to the new warrant heard afresh since the court had no power to allow an appeal ‘in part’. The right answer here was then to quash the extradition order and invite the Polish authorities to commence proceedings for the appellant’s extradition on the basis of the new warrant.

The appeal was allowed in part. The judge accepted the fact that the Polish authorities no longer sought extradition on the same basis as they did before; the basis had narrowed. This did not, however, render the EAW invalid. By operation of the  Extradition Act (Multiple Offences) Order 2003 (SI 2003/3150) (“the 2003 Order”), the court was at liberty to allow this appeal in part, in relation to those offences specified in the original EAW which have now been excised by amendment and order release in relation to those offences only (s. 27(5) Extradition Act 2003, as amended by the 2003 Order;  Lewicki v Preliminary Investigation Tribunal of Napoli, Italy [2018] EWHC 1160 (Admin), [43]). It could, however, dismiss the appeal in all other respects. The effect of this is to trim the extradition order. This was, in Whipple J’s view, the appropriate approach in this case. Accordingly, the appeal was allowed to a limited extent, but otherwise dismissed such that the extradition order was not discharged.

A woman who spent £16m at Harrods in a decade can now be identified as Zamira Hajiyeva, the subject of the UK’s first unexplained wealth order. Ms Hajiyeva lost her legal battle last week to stay anonymous.

The full piece can be read here.

A government-commissioned review by the Senior Salaries Review Body has recommended that High Court judges should receive a 32% pay rise due to claims of low morale within the judiciary. The rise would see their pay jump from £181,500 to £240,000 a year.

The full piece can be read here.

The number of offenders who commit violent crimes while being monitored in the community has jumped by more than a fifth in England and Wales, the Guardian revealed following a freedom of information request.

The full piece can be read here.

An influential parliamentary committee has said that the government’s new counter-terrorism bill risks crossing the line on human rights. The new bill proposes broader powers for boarder guards to stop and search individuals without suspicion tackling “hostile state” activity and would criminalise travel to terrorist hotspots and the viewing of terrorist-linked material online.

The full piece can be read here.

Factual Background
The NCA believe the property in question was purchased for £11,500,000 in 2009 by a company whose beneficial owner is thought to be Mrs A, a non-EEA national married to Mr A. Mr A is the chairman of a majority state-owned bank in his home country. Mr A resigned from the bank in March 2015 and was subsequently charged in December 2015 in that country with various offences including misappropriation, abuse of office, large-scale fraud and embezzlement. He was convicted on 14 October 2016, sentenced to 15 years’ imprisonment, and ordered to pay the bank approximately $39 million. The NCA also believes that in June 2016 Mrs A was arrested ‘in absentia’ and declared wanted in connection with avoiding the investigation into the bank. A UWO was made out by the judge on 27 February 2018 requiring the respondent to provide a statement explaining how she obtained the property. It is a new investigative tool.

Grounds of application
The respondent advanced eight grounds to discharge the application: (i) Mr A is not a ‘politically exposed person’; (ii) the NCA mischaracterised Mr A’s role in persuading the court that the UWO income requirement was met; (iii) the NCA was wrong to rely on Mr A’s conviction in his home country; (iv) the NCA did not establish the income requirement to the relevant standard; (v) the UWO ought to be discharged because of the penal warning wrongly attached to it; (vi) the UWO offends Mrs A’s Article 1, Protocol 1 ECHR rights; (vii) the UWO offends her privilege against self-incrimination and spousal privilege; and (viii) given all the circumstances of the case the court ought not to have exercised its discretion to make the order.

‘Politically exposed person’ (PEP)
A PEP is defined per Article 3(9) of Directive 2015/849/EU inter alia as a person, or their close family, entrusted with prominent public functions and a member of the management of state-owned enterprises. Mrs A contended both that the bank was not a state-owned enterprise and that her husband was not entrusted with prominent public functions. Supperstone J held that the fact that the bank was majority state-owned was sufficient, though not necessary, to designate it a ‘state-owned enterprise’ and that as Chairman of the state-owned bank Mr A was de facto entrusted with prominent public functions. The inclusion in s.362A(1) of the words ‘entrusted by an international organisation or by a state’, though not present in the 2015 Directive, added little to the domestic provision.

The Income Requirement
Supperstone J considered the next three grounds together. He found that there was good reason to suspect that the property was purchased using unlawfully obtained income as the evidence strongly suggested that Mr and Mrs A’s lawfully obtained income (in the order of $100,000 a year) would not be enough to acquire the property. The respondent also argued that the NCA were wrong to rely on Mr A’s conviction as evidence that the funds used to purchase the property were unlawfully obtained given the lack of judicial impartiality in his home country that infringed Mr A’s Article 6 ECHR rights. The judge saw the force behind this argument but concluded that the threshold for excluding reliance on a foreign conviction on human rights grounds was a high one. Precedent pointed towards only a flagrant deprivation of an individual’s rights, of a level where an conviction had been based on a confession obtained by torture, as sufficing. On the facts, this threshold was not met.

The Penal Warning
The judge held that s.362C did not oust, by implication or otherwise, the court’s power to attach a penal notice to a UWO and to enforce non-compliance with such an order through committal proceedings brought under CPR Part 81. There was a strong public interest in ensuring that court orders are not disobeyed at the option of a party.

Article 1, Protocol 1 ECHR
Supperstone J held that the UWO did not itself give rise to a loss in value, and so Article 1, Protocol 1 was not triggered. Even if this conclusion was wrong, the interference by the UWO would be proportionate.

Privilege
The UWO does not offend the privilege against self-incrimination and spousal privilege as such privilege is not available for prosecution for criminal offences outside the UK. Though it can be a relevant factor in deciding whether to order disclosure, there was no appreciable risk of prosecution of Mrs A or her husband for offences in the UK. Further, the respondent merely asserted in her witness statement both privileges. She did not identify any specific requested information. Finally, Parliament in creating the UWO procedure necessarily intended that the privileges be abrogated.

Discretion
Despite the fact that Mr A is detained in custody abroad and unable to engage meaningfully, and Mrs A afraid to return to her home country, the court was right to exercise its discretion and make the order. Mr A is not the beneficial owner of the property, there is no evidence that Mrs A wishes to leave the UK, and the statutory criteria in s.362A were clearly made out.

Conclusion
The application was dismissed and the UWO maintained.

Factual background
The claimants own the Waterstock Golf Course in Oxfordshire and have been involved in a number of planning disputes with the Council. The litigation history was extensive and stretched back to 1997. Bryan J noted that it was not his role to make findings on the factual disputes stemming from various subsequent public inquiries, injunctions and breached court orders. The primary role of the court was to consider the merits of the public law challenge. He however accepted that that challenge could not be considered in a vacuum – it was important to identify the associated evidence against which the decision and the attacks upon it were to be considered.

The claimants alleged to the defendant in 2005 that the council had fraudulently presented a plan of the golf course as a pre-existing, properly surveyed plan which had been produced before the inquiry started, instead of one drawn up on transparent paper in a slightly careless manner. Further complaints were made in 2007, 2010, and 2013. On 30 May 2016 the defendants’ Professional Standards Department wrote to the claimants accepting that the defendant’s response to the original complaint was flawed. There had been a failure to consider the real issue of whether staff of the Council committed criminal offences or not. The letter suggested a number of lines of investigation the defendants should undertake to explore the possibility of fraud, forgery, perjury, copyright theft, and perverting the course of justice. Such an investigation was carried out and found that there was no realistic prospect of a successful conviction. That decision was now being challenged.

Discussion
The decision was grounded in a detailed police report running to some 16 single-spaced pages. The author of the report stated that in 30 years of police service she had never had as much contact from a witness/complainant as from the claimants. Despite the defendant’s previous failings, the judge found on ground (i) that the investigation was impartial, reasonable and proportionate. The claimant’s allegation that this was not the case was hopeless; in fact the report went above and beyond what should be expected. It was possible that an otherwise reasonable and proportionate investigation may be unlawful if it was flawed in some material respect. The judge however found that the report was correct in its assessment that there was not sufficient evidence to provide a realistic prospect of conviction against any suspect on any charge.

On ground (ii) the judge concluded that no fair-minded and informed observer would conclude that there was a real possibility of bias. The fact that there had been a previous failed investigation did not infect the second investigation. On ground (iii), while under s.23(1) of the Criminal Procedure and Investigations Act 1996 the defendant was under a duty to give reasons, the report clearly satisfied that duty. It was readily apparent that no further investigative steps were required. It was not that there was a lack of evidence, but rather that the extensive evidence that did exist provided no realistic prospect of a successful conviction.

On ground (iv) it was common ground that the report contained an error in inaccurately stating that copyright matters may only be dealt with in the civil jurisdiction, but this did not necessarily mean that the overall decision was flawed. The report’s conclusions would apply equally to any potential criminal copyright offence. Moreover, per s.31(2A) of the Senior Courts Act 1981, the Court must refuse to grant relief on an application for judicial review if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Conclusion
Bryan J dismissed the claimants’ application and upheld the decision of the defendant to close the investigation into the council.

The appellant was 20 years old at the time of the incident. He lived with his parents. Three police officers attended the family home following a call by the father that the claimant was being hostile towards him. The appellant was found crying on his bed in his locked room. The officers asked him to pack up and leave his home. He stood up and moved towards the officers aggressively, at which point he was arrested to prevent a breach of the peace. He then shouted at the officers and swung his arms at them, connecting with their heads. He was charged with three counts of assaulting a constable in the execution of his duty,

At first instance, in response to a submission of no case to answer, the justices found that there was case as the appellant had moved aggressively towards the officers. The justices also rejected a submission that the officers were unlawfully evicting the appellant from his own home, and he was found guilty of assaulting the officers in the execution of their duty. On appeal the appellant submitted (i) that the justices were not entitled in law to conclude that there were reasonable grounds for arrest, and (ii) that they should have concluded that there was evidence to support a contention that the officers were unlawfully evicting the claimant.

Reasonable grounds for arrest
The appellant argued that there was no threat observed by the officers until after they threatened to arrest him for breach of the peace. Prior to the appellant coming towards the officers the threat of arrest for breach of the peace was unlawful. He therefore had every right to resist the unlawful arrest threatened. The appellant further argued that the justices had also deferred to the police in considering whether the arrest was reasonable, and that the officers’ conduct was not proportionate.

These points were all dismissed by Supperstone J. The appellant was arrested after moving aggressively towards the police. The time prior to that movement has no relevance to the threatened breach of the peace. The issue of proportionality thus did not arise.

Threat to evict the appellant
The judge cursorily held that there was no attempted eviction for the appellant to resist. The PC ‘suggested’ that he pack a bag and leave the home. That did not amount to an eviction. Even if it did, the aggressive response of the appellant would have been disproportionate.

Conclusion
As both grounds failed the appeal was dismissed.

The Environment Agency in England said it had found contractor Healthcare Environmental Services to be in breach of permits at five sites which deal with clinical waste. The Department of Health said there was no risk to the public, but a Cobra meeting to discuss the issue was chaired by Health Secretary Matt Hancock last month.

The full piece can be found here.

The US Senate voted 50-48 to approve President’s Trump’s nominee as protestors demonstrated outside. Kavanaugh is expected to take his place on the court on Tuesday.

More details can be found here.

Russian spies have been accused of involvement in a series of cyber-plots, leading US to level charges against seven agents. The Netherlands, UK, USA, and Canada all disclosed previously top secret information as part of an organised push-back against alleged Russian cyber-attacks around the world.

More details can be found here.

The head of the NCA argued that tech companies could stop child pornography online if they wanted to. Rob Jones said that the firms had the technology to be more proactive to prevent images reaching the web in the first place.

The full story can be found here.

The appellant was convicted of an offence of causing serious injury by dangerous driving. The prosecution’s case, accepted by the jury, was that the appellant drove a Ranger Rover into the complainant, pinning his leg against the wall and causing him serious injury. On the first day of trial, the judge had declined an application made by the defence for an adjournment for medical evidence to be obtained. The suggestion at that stage was that the evidence could support the appellant’s case by giving an explanation as to how he could have engaged the wrong gear. During the course of the trial, the appellant fitted a number of times. The severity of his situation was such that he was forced to watch the trial from a separate room. The judge declined an application on the third day of trial to discharge the jury, supported by the prosecution, to enable medical evidence to be collected on the appellant’s medical state and whether any special measures could be taken to enable the appellant to participate effectively in his trial. At the close of the prosecution case, defence counsel informed the court it had been their firm intention to call the appellant to give evidence, but had now taken the decision it would now be irresponsible to do so given the appellant was likely to fit whilst in the witness box. The judge directed the jury that no adverse inference was to be drawn from the fact the appellant had not given evidence.

The appellant appealed against his conviction on the basis that the judge was wrong to reject the applications where the appellant’s ability to participate in the trial was severely compromised; the judge’s decision to continue the trial rendered the process unfair and thus the appellant’s conviction was unsafe.

In the Court’s view, the judge was justified in refusing the application on the first day of trial as there was, at that point, no evidential basis for suggesting that a fit could have caused him to engage the wrong gear or that his seizures would interfere in his ability to participate in his trial. However, after the seizures manifested themselves, the judge should have allowed time for medical evidence to be obtained, addressing the significance of the appellant’s fits and any means of controlling them. Such evidence was required to find out whether any measures could be taken which might enable him to give evidence. Accordingly, on the basis that the trial was unfair, the appellant’s conviction was quashed.

The appellant pleaded guilty on re-arraignment to causing death by dangerous driving. On the evening of the offence, the appellant was driving a Ctiroen Xsara. It had been raining and the appellant lost control of the car as he went round a bend. The car crossed the opposite lane and hit a number of trees. One of the passengers died at the scene. The expert for the prosecution concluded that the appellant was driving at an excessive speed such that he could not negotiate the bend safely. The judge imposed a sentence of 2 years’ imprisonment and disqualified the appellant from driving for a total period of five years and until he passed an extensive retest.

The appellant appealed against sentence on the basis that the sentencing judge misapplied the Definitive Guideline: Causing Death by Driving (“the Guideline”) in assessing this as a case which fell not far short of dangerous driving; rather, it should have been treated as falling within the second category, “other cases of careless or inconsiderate driving”. The basis for this was that the appellant’s actual speed was estimated to be about 10mph below the actual speed limit and 8mph below the top end of the range given for the maximum speed at which the bend could have been negotiated.

This argument was rejected and the appeal dismissed. That the speed at which the appellant was driving fell below the speed limit was of no consequence: that limit did not indicate a level of speed at which it would not be careless, let alone safe, for the appellant to negotiate the bend. There was no merit in the argument that the appellant was only driving 8mph below the upper bound of the maximum speed assessed for the bend. It was careless, verging on dangerous, for the appellant, as an inexperienced driver, to be driving so close to the upper estimate of the maximum speed at which the bend could be taken in wet conditions. Further, Annex A to the Guideline gives driving at speed “which is highly inappropriate for the prevailing road or traffic conditions” as an example of dangerous driving.

The appellant pleaded guilty to a conspiracy to pervert the course of justice, contrary to s. 1(1) of the Criminal Law Act 1977. The particulars of the offence were that the appellant, along with three others, one of whom she was in a relationship with, conspired to give false information to the police in respect of proceedings under the Proceeds of Crime Act 2002 (“POCA”) about the ownership of an Alfa Romeo, with the intent to prevent its recovery. The appellant was sentenced to 10 months’ imprisonment. She appealed against sentence, with leave of the single judge, on the basis that (a) the mitigating features of the appellant’s case should have led the judge to conclude the custody threshold had not been passed, and (b) the length of the sentence was manifestly excessive.

In respect of the first ground, the Court concluded that the sentencing judge could not be criticised for taking the view that “appropriate punishment” could only be achieved by imposing an immediate custodial sentence; the seriousness of the offence – i.e. conspiring to pervert the course of POCA proceedings – was a factor to which overriding weight was rightly attached. Thus, the first ground failed.

Regarding the second ground, the Court was persuaded that the sentencing judge had failed adequately to take into account that one of the appellant’s co-offenders had recently taken part in a conspiracy to supply class A drugs whilst on bail. Further, the judge took the same starting point, before allowing for the appropriate reduction, as for the other two co-offenders whose circumstances were drastically different. Thus, the Court could not support the appellant’s sentence and a sentence of six months’ imprisonment was substituted for ten.

The appellant was convicted, with a co-accused (DS), on the second count of a three-count indictment for conspiracy to possess prohibited weapons. The appellant was then re-tried on a count of conspiracy to possess firearms with intent to endanger life, a count on which the jury could not agree a verdict at the appellant’s first trial. The appellant was also convicted of that offence at the conclusion of the second trial. The facts of the offence disclosed that the appellant had been at a gathering, shortly after an altercation, at which a number of weapons were found.

The appellant appealed against his convictions on a number of grounds. In respect of the conviction at the first trial, the appellant contended that the judge had been wrong to allow the jury to hear evidence of his two previous convictions for robbery under s. 101(1)(f) of the Criminal Justice Act 2003. In respect of his conviction at the second trial, the appellant’s case was that the judge should not have admitted his conviction at the first trial and, in any event, the judge had erred in not acceding to the appellant’s submission of no case to answer once the prosecution had changed the factual basis of their case.

In relation to the ground relating to bad character evidence, at trial the basis of the prosecution’s application to admit the appellant’s convictions for robbery was that the appellant had created a false impression; namely that, through his evidence about his own drug dealing, he was not the sort of person who would commit other serious types of crimes, such as was alleged against him in this case. By reference to the remarks of Sir Igor Judge P in R v Renda [2006] 1 WLR 2984, at [3], the Court was far from persuaded that the judge was wrong to conclude that the appellant’s evidence had created a false impression. The trial judge had the advantage of both hearing the evidence and seeing the appellant give that evidence. Further, for the same reasons, the judge was entitled to conclude that admission of the evidence did not have such an adverse effect on proceedings such that it should not be admitted and hence was justified in not using her discretion under s. 78 of Police and Criminal Evidence Act 1984 to exclude it. Accordingly, the appellant’s appeal against his first conviction failed.

The appeal against the second conviction (at the re-trial), however, succeeded. Applying the well-known principles in R v Galbraith (1981) 73 Cr. App. R. 124, the appellant’s contention was that there was no evidence upon which a properly directed jury could have convicted the appellant of the conspiracy with which he was then indicted. Half-way through the trial, the prosecution changed the factual basis of their case. As a result the count was amended to delete the names of the appellant’s alleged co-conspirators who had been acquitted at the first trial. Thereafter, however, in the court’s view, the prosecution had not been able to adduce sufficient evidence to prove, to the criminal standard, that a conspiracy between the appellant and any other person existed to possess the firearms with the intent to endanger life. The result was that this conviction had to be quashed.

The appellant (A) was convicted of murder along with two other young men, Mr Johnson (J) and Mr Goodensimms (G). The prosecution case, accepted by the jury, was that the three men had travelled to the scene, a Sainsbury’s depot in Charlton, where they attacked the victim with weapons. It was the defence case that A was not at the scene.

A sought to appeal against his conviction on two grounds: (i) that the trial judge erred in refusing to accede to a submission of no case to answer, failing to appreciate the quality of the identification evidence which placed A at the scene of the crime; and (ii) the weaknesses of the identification evidence were not appreciated by the judge in summing up.

In respect of (i), the Court’s view was that the identification evidence was poor and that it followed that the judge was under a duty to withdraw the case from the jury unless there was other evidence which supported the correctness of the identification. Although the judge had not done so, had he analysed the evidence in the proper way, he would have come to the conclusion that there was evidence capable of supporting the identification, which meant the case could properly be left to the jury.

As for the summing up, the identification evidence was such as to require careful and tailored directions to the jury. The court accepted that the judge’s handling of the identification evidence left a lot to be desired in that, for example, there was no reference to the lighting or to the view available to the individual as he watched events unfold. However, reviewing the whole of the evidence, the jury received careful guidance on the elements of circumstantial evidence which supported the evidence of his identification at the scene of the crime. In particular, there was little that could be said in relation to powerful evidence, from WhatsApp messages, that placed A at the scene. The Court was satisfied the conviction was safe.

It is increasingly difficult for defendants and claimants to find solicitors willing to represent them due to the Government’s legal aid cuts, the Law Society has warned. Christina Blacklaws, the Law Society’s president, said British justice now existed “only for the wealthy, or the small number on very low incomes lucky enough to find a solicitor willing and able to fight a mountain of red tape to secure legal aid.”

The full piece can be read here.

Lord Wilson, giving the Howard T. Trienens Lecture at Northwestern University Chicago, also criticised the government’s dismantling of the legal aid system, commenting that access to justice was “under threat” in the UK as a result.

The lecture can be accessed here and comment from the Guardian accessed here.