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Paul Jarvis
Paul Jarvis
21 January 2019

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

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

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  The section 2 and 3 offences were repealed when the 2003 Act came into force on 1 May 2004 and not replaced.

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

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

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

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

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6KBW
6KBW
21 January 2019

Weekly Digest: 21 January 2018

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

Shepherd v The Information Commissioner [2019] EWCA Crim 2

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

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

 

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

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

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

 

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

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

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

 

OTHER NEWS

Lord Sales sworn in as newest Supreme Court judge

 

Prisons minister looks to scrap sentences of less than six months

 

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

Runaway companies: prosecuting a company in its absence

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

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

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

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

33 Procedure on charge of offence against corporation.

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

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

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

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

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

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

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

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

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

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

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

 

 

 

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Ailsa McKeon
Ailsa McKeon
10 January 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] O’Leary (n2) 32.

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

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

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

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

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

[12] Ibid 30.

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

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

[15] Ibid; Stuesser (n9).

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

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

[18] Section 1, Sexual Offences Act 2003.

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

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6KBW
6KBW
7 January 2019

Weekly Digest: 2018 roundup

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

R v Jones [2018] EWCA Crim 2816

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

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

 

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

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

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

Duncan Penny QC and Alison Morgan appeared for the respondent.

 

R v TF [2018] EWCA Crim 2823

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

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

 

R v Rawlinson [2018] EWCA Crim 2825

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

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

Paul Jarvis appeared for the respondent.

 

R v Ali Tas [2018] EWCA Crim 2603

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

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

 

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

 

Decline in community sentencing based on probation privatisation

 

 

Rise in number of children held in custody before trial

 

 

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6KBW
6KBW
17 December 2018

Weekly Digest: 17 December 2018

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

R. v Kurtz [2018] EWCA Crim 2743

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

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

 

R. v T [2018] EWCA Crim 2464

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

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

 

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

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

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

 

OTHER NEWS

 

Increases in police funding for 2019 announced

 

Child aged 11 arrested for dealing Spice

 

 

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Rosemary Davidson
Rosemary Davidson
13 December 2018

Supreme Court: parole eligibility for EDS prisoners not discriminatory

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

What are the practical implications of the judgment?

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

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

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

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

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

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

What was the background?

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

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

What did the Supreme Court decide?

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

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

 

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

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

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12 December 2018

Weekly Digest: 12 December 2018

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

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

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

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

 

R v. Sachan [2018] EWCA Crim 2592

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

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

 

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2 December 2018

Weekly Digest: 3 December 2018

This week’s Digest contains one judgment from the Supreme Court and three from the Court of Appeal (Criminal Division). The first considers whether the UK’s extended determinate sentence regime is in violation of Article 14 ECHR. The second addresses whether a judge’s interventions deprived the appellant, convicted of rape, of a fair trial. In the third, the defendant appealed against his sentence for converting criminal property obtained through fraud. The fourth considers whether a judge at first instance erred in failing to leave to the jury an alternative count of assault.

R (Stott) v. Secretary of State for Justice [2018] UKSC 59

The Supreme Court’s judgment, available here, was handed down on 28 November 2018.

The issue in this appeal was whether the UK’s extended determinate sentence regime unlawfully violated Article 14 ECHR. The Court, by a bare majority, dismissed the appeal, holding that while Article 14 was applicable in this case the treatment of offenders serving extended determinate sentences was justified.

Rosemary Davidson was part of the team instructed on behalf of the respondent.

 

R. v Marchant [2018] EWCA Crim 2606

The judgment, available here, was handed down by Leggatt LJ on 23 November 2018.

The appellant appealed against a rape conviction on the grounds that he did not receive a fair trial because the judge intervened improperly during his examination-in-chief and summed up the case to the jury in a way that was unbalanced. The court held that, while the judge did pursue lines of questioning that were unnecessary, these were not significant enough as to make the conviction unsafe. The appeal was dismissed.

 

R. v Aguilar [2018] EWCA Crim 2639

The judgment, available here, was handed down by Pepperall J on 16 November 2018.

On 24 April 2018 the appellant pleaded guilty to an offence of converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002. He now appealed against his sentence. The appeal was allowed. While the offending was seriously aggravated, the appellant should have been sentenced differently.

 

R. v Lemon [2018] EWCA Crim 2660

The judgment, available here, was handed down by Flaux LJ on 20 November 2018.

The two appellants were convicted of attempted robbery and sentenced to between 12 and 15 months in a Young Offender Institution, suspended for 18 months. They appealed on the ground that the judge erred in failing to leave to the jury an alternative count of assault for one of them, thus rendering both of their convictions unsafe

 

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25 November 2018

Weekly Digest: 26 November 2018

This week’s Digest considers two recent judgments, one from the Court of Appeal (Criminal Division) and one from the Divisional Court. In the former, the Court of Appeal considered whether a conviction for gross negligence manslaughter was unsafe on the basis of the ratio of R v Honey Rose [2017] EWCA 1168. In the latter, the Divisional Court considered the question of whether a finding that an officer was acting in execution of his duty (in the context of a conviction under s. 89(1) of the Police Act 1996) could stand when the detention with which he was assisting was unlawful; the Court also suggested that, in some circumstances, prosecutors should consider charging common assault in the alternative.

R v Winterton [2018] EWCA Crim 2435

The judgment, available here, was handed down by Macur LJ on 06.11.18.

The issue in this appeal was whether the appellant’s conviction for gross negligence manslaughter could stand, on the basis of R v Honey Rose [2017] EWCA 1168, if he did not know about the circumstances which gave rise to the death of the victim but should have known. The Court dismissed the appeal; there was sufficient evidence in this case for the jury to conclude that the appellant must have in fact known about or wilfully close his eyes to circumstances which were intrinsically dangerous and led to the victim’s death.

 

Dixon v Crown Prosecution Service [2018] EWHC 3154 (Admin)

The judgment, available here, was handed down by Leggatt LJ on 20.11.18.

The issue in this case was whether a finding that a police constable was acting in the execution of his duty when he was assaulted could stand in light of the fact that the detention with which he was assisting was unlawful. The Court held that, on the facts found by the Crown Court in this case, it could. The Court also offered guidance on whether it would be appropriate to charge common assault in such cases in the alternative to avoid similar difficulties.

 

A summary of the Court’s decision is available here.

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18 November 2018

Weekly Digest: 19 November 2018

This week’s Digest considers one judgment from the Court of Appeal (Civil Division) and one from the High Court. In the former the court considered whether pension policies should count as ‘realisable property’ for a confiscation order. In the latter, the court addressed whether the Criminal Cases Review Commission was wrong to decline to refer a murder conviction on the basis of joint enterprise in the light of R v Jogee [2016] UKSC 8.

Ahmed v Crown Prosecution Service [2018] EWCA Civ 2543

The judgment, available here, was handed down by Newey LJ on 15th November 2018.

The issue in this appeal was whether certain pension policies constituted ‘realisable property’ within the meaning of  a confiscation order made pursuant to the Criminal Justice Act 1988. The appeal was dismissed. Pension policies do count as realisable property and can be seized by a confiscation order.

 

R (Davies) v Criminal Cases Review Commission [2018] EWHC 3080 (Admin)

The judgment, available here, was handed down by Irwin LJ on 14th November 2018.

The Claimant sought to challenge the decision of the Criminal Cases Review Commission (CCRC) not to refer his conviction for joint enterprise murder to the Court of Appeal Criminal Division. He argued that, in light of R v Jogee [2016] UKSC 8, the judge at first instance misdirected the jury in stating that foresight, not intention, was sufficient for guilt to be established and that his conviction was therefore unsafe. The Court of Appeal agreed that a misdirection had taken place but held that the conviction was not unsafe. The application was dismissed.

 

 

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13 November 2018

Weekly Digest: 12 November 2018

This week’s Digest considers four judgments from the Court of Appeal (Criminal Division). Most importantly, the Court in R v. Johnson; R v. Burton [2018] EWCA Crim 2485 clarified the modern requirements for the preferment of indictments under s. 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, as amended by the Coroners and Justice Act 2009.

R v. Johnson; R v. Burton [2018] EWCA Crim 2485

The judgment, available here, was handed down by Sir Brian Leveson P on 08.11.18.

The issue in this case was whether indictments that had been uploaded onto the Court Digital Case System and differed from the indictments on which the appellants were arraigned meant that the convictions that followed from the CDS indictments had to be vacated in line with the analysis in R v. Leeks [2009] EWCA Crim 1612. The Court dismissed the appeals; the indictments that had been subsequently uploaded had been preferred properly within the meaning of s. 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, as amended by the Coroners and Justice Act 2009.

Duncan Atkinson QC and Paul Jarvis appeared for the Crown.

 

R v. Shirt and another [2018] EWCA Crim 2486

The judgment, available here, was handed down by Sir Brian Leveson P on 08.11.18.

The issue in this case was whether, in refusing to exclude evidence of a plea of guilty made by co-defendants under s. 78 PACE, the appellants had been deprived of their defence and thus their convictions for conspiracy to defraud were unsafe. The appeal was dismissed. Although the admission of the pleas made it difficult for the appellants it did not affect the fact that the prosecution still had to prove key elements of the offence, such as the fact that the appellants were party to such a conspiracy and had acted dishonestly.

 

R v. Aziz and others [2018] EWCA Crim 2412

The judgment, available here, was handed down by Holroyde LJ on 02.11.18.

This was a renewed application for leave to appeal against a conviction for an offence contrary to s. 5(1)(a) of the Terrorism Act 2006. The grounds of appeal criticised the trial judge’s failure to (i) discharge the jury; (ii) lift anonymity orders made in respect of key prosecution witnesses; (iii) discharge the whole jury on the basis he had discharged one; and (iv) give a balanced summing up of a key prosecution witness’s evidence. All challenges failed; the judge’s handling of these issues had been exemplary. The Court also considered an application for leave to appeal against a life sentence. This also failed; the judge had been justified to go beyond an extended determinative sentence in the circumstances of the case.

Gareth Patterson QC appeared for the Crown.

 

R v. E [2018] EWCA Crim 2426

The judgment, available here, was handed down by Sir Brian Leveson P on 01.10.18.

The issue in this appeal was whether a trial judge was right to stay proceedings as an abuse of process against the respondent on the basis that a concession made by the prosecution, relating to a failure to pursue evidence on a mobile phone, rendered the proceedings unfair. The appeal was allowed and the proceedings ordered to resume; it was arguable that a concession should have been made by the prosecution, but it did not follow that this failure rendered proceedings against the respondent unfair.

 

OTHER NEWS

Children most at risk of being stabbed on their way home from school

 

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Remembrance Day: Procession of 10,000 follows two-minute silence

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6 November 2018

The Use and Abuse of Parliamentary Privilege: does ‘public interest’ trump the rule of law?

In his statement to the House of Lords on 25th October 2018, Lord Hain said that it was “his duty under parliamentary privilege” to name Sir Philip Green as the businessman at the centre of the recent proceedings before the Court of Appeal in ABC and others v Telegraph Media Group Limited [2018] EWCA Civ 2329. Notwithstanding that the Court of Appeal had made an interim injunction preventing publication of the full details of the litigation, Lord Hain stated that this story was “clearly in the public interest” and, therefore, that this justified his revelation.

This post considers, firstly, the judgment of the Court of Appeal and, secondly, whether a ‘public interest’ justification should be allowed to trump the rule of law through the use of Parliamentary privilege, with the potential implications for such a position.

The background: ABC

The Court of Appeal in ABC was considering an appeal against a decision by Mr Justice Haddon-Cave (as he then was) to refuse an application by the claimants for an interim injunction preventing the defendant from publishing what was asserted to be confidential information about the claimants. The background to the application concerned settlement or non-disclosure agreements (“NDAs”) made in relation to five employees who had alleged discreditable conduct against a senior executive of the claimant companies.

Notwithstanding that the NDAs contained undertakings that the subject matter of the complaints was to be kept confidential, the Daily Telegraph newspaper learned of the allegations and sought to publish a story about them. The claimants therefore brought legal proceedings to seek an injunction preventing publication. The application was for an interim injunction in the first instance, prior to a full hearing.

It was argued by the claimants that publication should be restrained as the information in question had been obtained in breach of confidence (through being in breach of the NDAs). It was argued by the defendant that it was in the public interest for such information to be published and that Article 10 of the European Convention on Human Rights (“freedom of expression”) allowed for this publication.

Under section 12 of the Human Rights Act 1998, when considering whether to grant any relief which might affect the exercise of the Convention right to freedom of expression, a court cannot grant such relief unless satisfied “that the applicant is likely to establish that publication should not be allowed” (section 12(3)). Part of that consideration includes the extent to which it would be in the public interest for the material to be published (section 12(4)(a)(ii)).

Whilst acknowledging the section 12 provisions, the Court of Appeal noted that there was an important public interest in the observance of duties of confidence. Furthermore, the Court recognised that the weight to be attached to an obligation of confidence may be enhanced if that obligation is contained in an express contractual agreement – as would be the case for a NDA.

As was noted by the Court of Appeal in its judgment, the use of NDAs has come under scrutiny in recent times. The House of Commons Women and Equalities Select Committee recently published a report entitled “Sexual harassment in the workplace” in which the legitimacy of the use of NDAs was discussed. Although that report referred to the unfair use of NDAs by some employers to silence the victims of sexual harassment, it also acknowledged that such agreements were “a way to resolve workplace disputes or end a working relationship without the need to go through the cost and stress (for both parties) of an Employment Tribunal hearing” [paragraph 109 of the report].

The Court of Appeal also considered the earlier case of Mionis v Democratic Press SA [2017] EWCA Civ 1194 in which Sharp LJ held that, where a settlement agreement which restricted article 10 rights had been voluntarily entered into (with the benefit of expert legal advice on both sides), “it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or equitable principles.” [paragraph 67 of Mionis]. The Court of Appeal in Mionis accepted that there was a public interest of parties to litigation being encouraged to settle their disputes with the confidence that a court will enforce the terms of that settlement.

In ABC, the Court of Appeal recognised that there was a public interest in allowing for informed debate on the standard of conduct required in public or commercial life. The Court endorsed the views of Haddon-Cave J as to the importance of freedom of political debate, the right of freedom of expression, the essential role played by the press in a democratic society and the important public concern about misbehaviour in the workplace.

However, the Court held that Haddon-Cave J had left out of account “the important and legitimate role played by [NDAs] in the consensual settlement of disputes, both generally but in particular in the employment field.”

As a result, none of the “unethical vices” of NDAs criticised in the Select Committee report were present in this case.

Significantly, the Court of Appeal held that there was no evidence that the NDAs in this case had been procured by any bullying, harassment or undue pressure on the part of the claimants. Each NDA recorded that the employee in question was independently advised by a named legal adviser. Furthermore, each NDA contained provisions authorising disclosure to third parties in a range of cases, including to regulatory and statutory bodies. As a result, none of the “unethical vices” of NDAs criticised in the Select Committee report were present in this case.

The Court of Appeal also recognised that employees may themselves wish to maintain confidentiality in relation to the settlement of a dispute with an employer. It was noted that in ABC, two of the complainants in fact supported the application for an injunction, one giving the express reason as being the protection of their privacy. In addition, the effect of each of the NDAs was to put an end to existing or potential litigation and enable the employees to receive substantial payments.

Having considered the competing arguments, the Court of Appeal concluded that there was a sufficient likelihood of the claimants defeating any defence of public interest in publication (under section 12 of the 1998 Act) at trial. Furthermore, they held that there was a real prospect that publication by the Daily Telegraph would cause immediate, substantial and possibly irreversible harm to all of the claimants. It recognised that “confidentiality, once breached, is lost for ever.”

The Court of Appeal noted that the effect of the NDAs upon the claimants was that they lost the opportunity to contest the allegations in an independent judicial adjudication. If the Daily Telegraph was permitted to publish all the information it sought, the claimants would be left to challenge the allegations through the media whilst they themselves would be bound by the NDAs.

Therefore, the Court held that an interim injunction should be granted. However, the Court acknowledged that any delay in the publication of matters of public interest is undesirable and, therefore, ordered that a speedy trial be held.

Both the Court of Appeal and Haddon-Cave J produced ‘open’ and ‘closed’ judgments in respect of the application. The ‘open’ judgments were placed on the public record but the ‘closed’ judgments were released only to the parties and their legal advisers. It follows that the ‘open’ judgments were necessarily limited in their contents and were given in such as a way as to preserve the confidentiality of the information pending the full hearing. It can be inferred that the ‘closed’ judgments would have covered in greater detail the competing interests and arguments raised on behalf of each party.

It is clear that the Court was alive to the tension between the competing public interests that arose in this case.

However, from the ‘open’ judgment released by the Court of Appeal, it is clear that the Court was alive to the tension between the competing public interests that arose in this case. On the one hand, there was the public interest of ensuring that the contractual obligations freely entered into by the parties to the NDA were upheld and maintained. On the other hand, there was the public interest in publication of alleged misconduct against a prominent businessman.

Parliamentary Privilege

It was in the context of the Court of Appeal having granted the interim injunction and the ‘open’ judgment being published that the statement by Lord Hain came to be made. The interim injunction granted by the Court of Appeal in ABC prevented the press from publishing anything which could reveal the identity of those involved with the litigation. However, Lord Hain was able to use Parliamentary privilege to override the terms of that interim injunction and reveal those confidential identities.

Parliamentary privilege in this context relates to the freedom of speech that members of either House of Parliament are guaranteed under Article 9 of the Bill of Rights 1689 (“That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”). Article 9 is viewed as a fundamental part of our constitution since it allows members of both Houses of Parliament to debate what they wish without fear of redress by the courts, the executive or anyone else.

In relation to the ABC decision, Article 9 means that it is not constitutionally possible for a court order, including an injunction, to apply to Parliament. As a result, it was not a contempt of court for Lord Hain to reveal in parliamentary proceedings information that was subject to an injunction.

In the Supreme Court case of R v Chaytor and others [2010] UKSC 52, Lord Phillips PSC commented that “there are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.” One main policy reason for this is the fact that Article 9 is, in effect, an exception to the general principle of the rule of law.

Notwithstanding the narrow ambit of Article 9, there has been consideration as to whether legislation was necessary to restrict freedom of speech in Parliament in respect of court injunctions. In 2012, the Green Paper on Parliamentary privilege examined that issue (amongst others) but was not in favour of any legislation which affected Members of Parliament and injunctions. It suggested that the way forward was respect for the principle of comity between the courts and Parliament.

Also in 2012, the Joint Committee on Privacy and Injunctions examined the relationship between Parliamentary privilege and injunctions, in particular the breaches of court injunctions by Members of Parliament. It concluded that no action was required at that stage but warned that: “If the revelation of injuncted information becomes more commonplace, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being ‘fed’ injuncted material with the intention of it being revealed in Parliament, then we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them.”

As was acknowledged by the Joint Committee, the absolute privilege for freedom of speech granted by Article 9 places a significant responsibility on parliamentarians to exercise it in the public interest. Whilst the Joint Committee stated that the presumption should be that court orders are respected in Parliament, they held that when a member does not comply with an order, they should be able to demonstrate that it is in the public interest.

Comment

The difficulty with that approach is that determining what is and is not in the public interest will be a matter for individual judgement. As a result, there can be no certainty as to whether a member of Parliament will conclude that the revelation of injuncted information will be in the public interest or not.

It can be argued that any use of Article 9 in those circumstances should be viewed with concern.

Although the use of Parliamentary privilege to reveal information subject to an injunction is relatively rare, it can be argued that any use of Article 9 in those circumstances should be viewed with concern. In Office of Government Commerce v Information Commissioner (Attorney General intervening) [2008] EWHC 774 (Admin), Stanley Burnton J stated that: “the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature.

The principle of the separation of powers is fundamental to our constitution. Its operation means that Parliament and the courts each take care not to intrude on the other’s territory or to undermine the other. By revealing the subject matter of an injunction, a parliamentarian necessarily intrudes upon the territory of the courts and there are obvious and inherent dangers in such an intrusion.

As can be seen from the decision in ABC, the courts consider and determine applications for injunctions after hearing evidence and representations from both sides. The court then applies the relevant law to the facts of the particular case and reaches its determination. In giving its ruling, the court will provide its reasons for the decision made and each party will be aware of the basis for the findings made. In the ABC case, the judgments both of Haddon-Cave J and of the Court of Appeal were provided a number of weeks after the applications had been heard in court. As a result, it can be inferred that each judgment was made after a period to reflect and to give full and proper consideration to the competing arguments and matters in issue.

By contrast, a parliamentarian who does not conform to an injunction made by a court will not have heard all of the relevant evidence nor the competing arguments advanced by the parties. Nor, in cases (like ABC) where there is an ‘open’ and a ‘closed’ judgment, will they have been aware of the full basis upon which a court has reached its determination. Yet, despite those clear and obvious limitations, by revealing the subject matter of the injunction, the parliamentarian has effectively placed themselves in the shoes of the judge and, thereafter, overruled the decision reached.

That raises a question of considerable importance since allowing such a step to be taken risks undermining the rule of law and the certainties that flow from that. Parties to litigation should be entitled to assume that important decisions that impact upon them will be considered fully and properly by an independent tribunal which then applies the relevant law in reaching its determination. If the position is that a parliamentarian can simply override a decision reached by that independent tribunal, then this will lead to uncertainty on behalf of those engaged in such litigation.

Furthermore, it is not simply the interests of the parties to the litigation that need to be considered. As was made clear by the Court of Appeal in ABC, two of the employees who had signed the NDAs were supportive of the application by the claimants for the injunction. For one of those employees, the express reason given was to protect their privacy, given the potential risk of ‘jigsaw identification’ if some of the information was made public.

Given the commercial perspective of the application in ABC, other interests that may be affected include those of the shareholders and employees of the relevant companies, given the potentially detrimental impact allegations of misconduct can lead to a company’s standing in the eyes of the public. There is also the recognition that the use of NDAs can be of benefit to both employer and employee. There may be any number of reasons why either party may not want to proceed to Employment Tribunal proceedings or to conduct their litigation in the public gaze.

Can it realistically be said that a parliamentarian will have considered all of those interests in weighing up whether to reveal the subject matter of an injunction is in the public interest?

The widespread news interest arising from both the interim injunction and the revelation by Lord Hain could be viewed as a justification that it was in the public interest for the identity of Sir Philip Green to be made known. However, that begs the question of whether it should be left to the press to publish allegations and allow the ‘court’ of public opinion to make up its mind. Should we not trust an independent tribunal (the courts) to apply the relevant law to the facts of a case and reach a determination?

Doesn’t the public interest in the rule of law being upheld outweigh the public interest in knowing about confidential matters prior to their resolution by the courts? Whilst the use of Parliamentary privilege to flout court injunctions remains relatively rare, the absence of any clear code of conduct as to what can and should be said by politicians about such matters during the course of proceedings in Parliament runs the risk that the rule of law will be undermined.

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5 November 2018

Weekly Digest: 6 November 2018

This week’s Digest considers three judgments; one from the Court of Appeal (Criminal Division) and two from the High Court. The first considers whether the conduct of the judge in a trial for bringing prohibited items into prison deprived the appellant of a fair trial. The second asks whether a man convicted of manslaughter could move back into his family home when members of his victim’s family live nearby. The third addresses whether a delay by the Parole Board in reviewing the appellant’s detention was contrary to his Article 5(4) ECHR right to have such a review upon expiration of his tariff period.

R  v AA [2018] EWCA Crim 2191

The judgment of Hamblen LJ, dated 26 September 2018, is available here.

The appellant appealed against a conviction for bringing prohibited items into prison. She had been sentenced to 18 months’ imprisonment. The prosecution case was that the appellant had visited her long-term partner in prison and brought him cannabis, two mobile phones, a SIM card, and two phone charging cables. The appeal was granted on the sole ground that the conduct of the judge at first instance had deprived the appellant of a fair trial through repeated interventions in such a manner as to demonstrate an adverse view of the appellant’s evidence. The appeal was allowed and the conviction set aside.

 

 

R (Begley) v Secretary of State for Justice [2018] EWHC 2714 (Admin)

The judgment, available here, was handed down by Kerr J on 26 October 2018.

On his release from prison on licence the Claimant, convicted of manslaughter, wanted to move back to the family home where his wife and daughter lived. Members of the victim’s family lived nearby and objected. The National Probation Service (NPS), represented by the Defendant, set an exclusion zone for the three-year remainder of the Claimant’s sentence that included his family home. The Claimant challenged this decision by way of judicial review on two grounds. Firstly, in making its decision the NPS should have formally assessed what was in the Claimant’s daughter’s best interests, and secondly, the exclusion zone was disproportionate. The application was dismissed. The NPS struck a fair balance between the competing interests.

 

 

R (Bate) v Parole Board of England and Wales [2018] EWHC 2820 (Admin)

The judgment, available here, was handed down by Holroyde LJ on 26 October 2018.

The Claimant sought judicial review of the allegedly unlawful delay on the part of the defendant Parole Board in its review of his detention. Until April 2017 he was serving a sentence of imprisonment for public protection (IPP) imposed in 2008. The issue in the appeal was whether the Parole Board had acted unlawfully in deferring the Claimant’s hearing from June 2016 to April 2017. The appeal succeeded on two grounds. There was an unlawful failure in violation of Article 5(4) ECHR to provide a parole hearing within a reasonably speedy interval and there was an unlawful failure to direct expedition in the listing of the Claimant’s deferred hearing.

 

 

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28 October 2018

Weekly Digest: 29 October

This week’s Digest considers four recent judgments of the Court of Appeal (Criminal Division). The first is an appeal against conviction, where the issue was whether the defence of loss of control should have been left to the jury; the second is a reference by the Attorney General of an unduly lenient sentence passed in respect of a firearms offence; the third is an appeal against sentence imposed for the offence of neglecting a child; the fourth and final judgment is an appeal against a sentence imposed for manslaughter.

R v Goodwin [2018] EWCA Crim 2287

The judgment, available here, was handed down by Davis LJ on 05.10.18.

The issue in this case was whether the judge was right not to leave a defence of loss of control to the jury for consideration. The appeal was dismissed; despite the Court taking issue with some of the judge’s reasoning, his analysis of the third element of the defence – i.e. whether a person in the defendant’s circumstances might have reacted in the same or in a similar way – settled the matter against the appellant. The Court also confirmed that the third element of the defence was just as much a matter for rigorous analysis by the judge as the first two components.

 

R v Capitao [2018] EWCA Crim 2377

The judgment, available here, was handed down by Simon LJ on 04.10.18.

The Attorney General referred the offender’s sentence to the Court of Appeal on the basis that it was unduly lenient. The focus of the Attorney General’s submissions were that a sentence of five years for a serious firearms offence was too lenient. The Court accepted this and substituted a sentence of seven years’ imprisonment; this was on its facts a serious offence and public policy considerations applied because of the prevalence and gravity of crimes concerning the possession and/or use of firearms.

 

R v Lindsay [2018] EWCA Crim 2171

The judgment, available here, was handed down by Treacy LJ on 26.09.18.

This was an appeal against a sentence imposed for an offence of neglecting a child on the basis that it was manifestly excessive and should have been suspended. The appeal was allowed. In this case, the appellant’s culpability was significantly less than that of her partner, who received the same sentence, and thus a reduction was appropriate to reflect that. Further, no consideration was given by the sentencing judge to the special position of the appellant’s young children in this case; this, coupled with the fact that she posed no risk to the public, justified the suspension of the sentence.

 

R v Larking [2018] EWCA Crim 2165

The judgment, available here, was handed down by Davis LJ on 21.09.18.

This was an appeal against a twelve-year sentence imposed upon conviction for manslaughter. The appeal was allowed and a sentence of eight years’ substituted by the Court; by reference to 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, both cases in which the sentences were lower than that originally imposed in this case and the circumstances more serious, twelve years’ imprisonment was ‘significantly’ too long.

 

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21 October 2018

Weekly Digest: 22 October 2018

This week’s Digest considers three judgments. In the first, the Court of Justice of the European Union ruled that the uncertainty ensuing from Brexit does not require EU member states to refuse to execute a European Arrest Warrant to the UK. In the second, the Court of Appeal (Civil Division) considered what standard of proof is applicable to the determination of whether an individual qualifies for the status of a stateless person. In the third, the Divisional Court addressed whether an appellant would be subjected to treatment contrary to article 3 of the ECHR if he were extradited to Lithuania to face trial for alleged criminal conduct.

 

Case C-327/18 PPU Minister for Justice and Equality v RO

The judgment of the First Chamber, dated 19 September 2018, is available here.

On this preliminary reference, the CJEU was asked to consider whether member states requested by the UK to surrender subjects of EAWs should in fact surrender them, given the fact that the uncertainty ensuing from the UK’s exit from the EU might mean that rights enjoyed by EU citizens might not be enforceable thereafter. The CJEU’s answer was clear: the triggering of Article 50 TFEU did not require executing member states to refuse to accede to a request to extradite pending clarification of the law that will be applicable in the issuing member state following withdrawal from the EU.

 

AS (Guinea) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2018] EWCA Civ 2234

The judgment, available here, was handed down by Lord Kitchin on 12 October 2018.

The Court of Appeal considered what standard of proof is applicable in determining whether a person qualifies as a stateless person, as defined by the 1954 Convention relating to the Status of Stateless Persons. The court was also asked to consider whether being stateless is relevant to the assessment of ‘exceptional circumstances’ necessary to outweigh the public interest in maintaining a deportation order under paragraph 390A of the UK’s Immigration Rules. The court held that the correct standard in assessing statelessness was the balance of probabilities; the appellant had failed to meet this threshold. It was therefore not necessary to deal with the second ground of appeal.

 

Jane v Prosecutor General’s Office, Lithuania [2018] EWHC 2691 (Admin)

The judgment, available here, was handed down by Dingemans J on 16 October 2018.

The same Divisional Court had previously found that there was a real risk that the appellant would be subjected to treatment contrary to article 3 ECHR if he were extradited to Lithuania, due to the conditions in Lukiskes remand prison. The appeal was stayed to give Lithuania an opportunity to provide suitable assurances. Seven such assurances were forthcoming. The appellant now argued that these assurances did not dispel the relevant risk. The court held that the assurances did dispel any risks and that the appellant’s article 3 rights would not be likely to be violated. The appeal was dismissed.

 

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Mixed messages: is there an inconsistency as to the extra-territorial ambit of disclosure between POCA and the SFO?

On 6 September 2018, the Administrative Court handed down its judgement in the case of the Queen on the application of KBR Inc v the Director of the SFO [2018] EWHC 2368 (Admin), which addressed the extraterritorial ambit of the Director’s power, under section 2(3) of the Criminal Justice 1987, to require the production of documents relevant to an investigation by his office. The Court concluded that section 2(3) did permit such requests to be made of foreign companies which have a “sufficient connection” to this country. But there are reasons to question whether that will be a final answer to that question, given the very different approach adopted by the Supreme Court to an attempt to extend beyond the UK the ambit of information notices under section 357 of the Proceeds of Crime Act 2002 in Serious and Organised Crime Agency v Perry [2012] UKSC 35. At the very least, given the scope for judicial review of the use by the SFO of section 2(3), it is reasonable to anticipate that KBR is unlikely to be the end of controversy as to the use of that power in the modern global financial market.

The KBR decision

KBR Inc. is a company incorporated in the US and the ultimate parent company of a global network of subsidiaries. These include KBR Ltd., a UK-based company which is under investigation by the SFO. In April 2017, the SFO issued a notice under section 2(3) against KBR Ltd, to which that company responded drawing a distinction between documents held by that UK-based company and documents held overseas by the wider KBR group. This resulted in a further notice in July 2017 but which sought material not just held by that company but from KBR Inc. This was the subject of challenge by judicial review, on the basis that section 2(3) did not operate extraterritorially to require a US company to hand over documentation that was held outside the UK. On behalf of the SFO it was argued that given the almost inevitable international element of most SFO investigations, and the multinational nature of many companies involved, the clear purpose of the section would be defeated by such a UK-centric approach.

The Court (Gross LJ and Ouseley J) concluded:

  1. The SFO was required to investigate serious criminal allegations into sophisticated global businesses. This required section 2(3) to have some extraterritorial application, because the SFO’s ability to investigate multinational companies would be easily frustrated. As Gross LJ observed (at para.64): It is scarcely credible that a UK company could resist an otherwise lawful s.2(3) notice on the ground that the documents in question were held on a server out of the jurisdiction. In this regard, were a UK company in a position to forestall a serious fraud investigation by transferring documents abroad … it would be in the highest degree unfortunate”;
  2. Proper regard could be achieved to international comity, if the ambit of section 2(3) included foreign companies, provided that: (i) the material is believed by the SFO to relate to a matter under investigation; (ii) the company has a sufficient connection to the UK; and (iii) the notice requiring production is served within the UK. Gross LJ said (at para. 72): “With regard to foreign companies the “sufficient connection” test strikes a careful balance between facilitating the SFO’s investigation of serious fraud with an international dimension and making excessive requirements in respect of a foreign company with regard to documents abroad. The existence of some extraterritorial reach guards against the risk of SFO investigations being frustrated or stymied while the requirement of a “sufficient connection” justifies the extraterritorial application of 2(3) by reference to the foreign company’s own actions linked to the UK. This is, accordingly, a principled balance”;
  3. The sufficiency of connection to the UK would not be met by a foreign company simply being a parent company of a subsidiary in the UK. Equally, a foreign company could not be said to have sufficient connection to the UK simply by the SFO requiring its officers to come within the jurisdiction; there must be a functional connection between the UK and the foreign company.

What about Perry?

In the course of his judgement, Gross LJ made reference to and considered the application of the decision of the Supreme Court in SOCA v Perry. Before considering how the Administrative Court did so, and whether its analysis is likely to withstand scrutiny in the future, it is worth considering what the Supreme Court decided, and why it therefore has a direct relevance to the issue that Gross LJ was addressing.

Mr Perry had been convicted of fraud offences in Israel. SOCA commenced proceedings in the UK for a civil recovery order, under part 5 of the Proceeds of Crime Act 2002 (‘POCA’). The Supreme Court was considering both information notices, under section 357 of POCA, and property freezing orders issued under part 5 of the same Act as part of the SOCA investigation. It is their analysis in relation to information notices that is potentially of direct relevance to the consideration of section 2(3). Section 357 (in conjunction with section 359) confers on SOCA, amongst others, the power to impose on persons a positive obligation to provide information or produce documents relevant to their investigation. In this particular case, those information notices issued against Mr Perry and members of his family, none of whom were either resident or domiciled in the UK.

Although there was an absence of unamimity amongst the members of the Supreme Court as to the extraterritorial potential of property freezing orders, the Supreme Court was of one mind in finding that information notices under POCA were limited to those within this jurisdiction. Their reasoning is informative, and was aptly summarised by Lord Phillips (at para.94), who observed: “No authority is required under English law for a person to request information from another person anywhere in the world. But section 357 authorises orders for requests for information with which the recipient is obliged to comply, subject to penal sanction. Subject to limited exceptions, it is contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. Section 357 , read with section 359 , does not simply make proscribed conduct a criminal offence. It confers on a United Kingdom public authority the power to impose on persons positive obligations to provide information subject to criminal sanction in the event of non-compliance. To confer such authority in respect of persons outside the jurisdiction would be a particularly startling breach of international law. For this reason alone I consider it implicit that the authority given under section 357 can only be exercised in respect of persons who are within the jurisdiction.”

How does KBR sit with Perry?

Gross LJ recognised that the approach of the Supreme Court in Perry  had to be addressed in answering the question of the extraterritoriality of section 2(3). He rightly identified a number of important factual and other differences:

  1. The two cases were addressing different pieces of legislation, although the public interest considerations under POCA and the CJA 1987 were “very similar”;
  2. The information notices in Perry were issued against persons outside and unconnected with this country, whereas the notices issued against KBR were issued against a company based here where the wider group was sufficiently connected with the UK. As Gross LJ observed (at para.72): “There is no question, therefore, of the notice being sprung on some unsuspecting corporate entity out of the jurisdiction without prior warning”.
  3. Gross LJ acknowledged that in Perry Lord Hughes (at para.156) had concluded that the use of sufficient jurisdictional connection would involve “illegitimately re-writing” POCA to permit it to apply to extraterritorial service of information notices, but the Court considered that section 2(3) already had “some extraterritorial application”, which was not the case with POCA.

There are, arguably, a number of difficulties with distinguishing Perry in this way. Amongst the concerns at the heart of the Supreme Court’s rejection of the extraterritorial ambit of POCA information notices for which SOCA contended were the fact that, as Lord Judge said (at para.183): “there is nothing in section 357…to indicate that it was intended that a notice under a disclosure order could be given to a person outside the jurisdiction”, and because section 357 carried with it a criminal sanction in the event of non-compliance (as Lord Phillips’ observations at para.94 of the judgement, quote above, make clear). There is at least an argument for saying that each of those concerns also arises in relation to the extraterritoriality bestowed on section 2(3) by the Administrative Court’s decision in the case of KBR Inc., and that the underlying rational in Perry therefore renders the decision in KBR Incvulnerable to future challenge.

Section 2(3) does not, on its face, assert any extraterritorial ambit, any more than section 357 of POCA did. The principle of international comity is described by Lord Mance in Masri v Consolidated Contractors Int (UK) Ltd (No. 4) [2009] UKHL 43 (at para.10): Unless the contrary intention appears…an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters…”. Gross LJ (at para.70) recognised this principle, but he considered “a careful consideration of the context, the underlying policy considerations and the overwhelming case for s.2(3) having at least some extraterritorial application, would compel the answer that there was no jurisdictional bar precluding the SFO from giving a notice to any foreign companies in respect of any documents held abroad, regardless of their relevance to an investigation into a UK company, and regardless of the degree of connection between the foreign company, the UK and a UK company.” However, it could equally be argued that the pragmatic desire to make SFO investigations effective ought to be outweighed by the absence of anything in the wording of the provision which would permit that pragmatic desire to be brought into effect.

The argument that such extraterritorial construction is necessary to make SFO investigations effective also proceeds on the assumption that there is no other means by which the SFO could make a request for documents held in another jurisdiction, or that such a lacuna could be exploited by multinational companies that move material abroad when they become aware of an investigation against them. It was submitted on behalf of KBR that such contentions ignored the fact that MLA was available in such circumstances, and that there were sanctions within section 2 of the CJA 1987 to address such evasive action.

Gross LJ addressed the MLA argument (at para.77) when he said: “To begin with, the construction given to s.2(3) cannot vary, depending on whether MLA is available or not. If KBR Inc is right, then although the SFO would be able to pursue the documents by way of MLA in this case (given the arrangements in place with regard to the US), the SFO would be without a remedy as to documents held by a foreign company abroad if that company was based in a state with which there were no MLA arrangements. For my part, I do not think that Parliament is likely to have intended such a result. Secondly, the CJA 1987pre-dates the crucial MLA arrangements (discussed further under Issue II below). In the circumstances, I do not see how those MLA arrangements can impact on the true construction of s.2(3) , whatever their impact on the exercise of the Director’s discretion under that section”.

However, this argument is predicated on it being Parliament’s intention that section 2(3) ought to have extraterritorial effect, which it had not indicated through the wording of the section as the principle of international comity would otherwise have required. Moreover, a counter argument could be that MLA arrangements would be unnecessary if provisions such as section 2(3) can be said to have extraterritorial effect because that will make them more effective. Moreover, the developing range of mechanisms that Parliament has brought into effect, most recently the Crime (Overseas Production Orders) Bill, which concluded its House of Lords Committee stage on 10th September 2018, would also be unnecessary if its intention had been that earlier statutory powers already provided the necessary extraterritorial reach. It might equally be argued that the use by the SFO over the years of MLA itself, and in more recent times of European Investigation Orders does not evidence a confidence that section 2(3) renders their own use of such measures otiose.

In terms of the risk that a lacuna might encourage multinationals to move documents to thwart the SFO, such conduct is already subject to sanction under section 2(16) of the Criminal Justice Act 1987.

The more worrying consequence of the interpretation of section 2(3) reached by the Administrative Court in KBR is the extension of the criminal sanction that attaches to a failure of compliance with a notice issued under that section. This is because failure of compliance with section 2(3) carries criminal sanction every bit as much as section 357 of POCA. It follows that the central concern in Perry, namely that it was contrary to established principle for country A to criminalise conduct by a citizen of country B in country B. Here, the jurisdictional extension identified in KBR would make it an offence for a citizen of country B to fail to produce documents that are also held in country B at the request of country A. This would have potential practical implications where, for example, legal counsel for or an executive officer of a multinational a subsidiary of which is served with a notice, enters this jurisdiction to meet with the SFO in connection with that notice. Alternatively, the KBR Inc approach provides an incentive for such executives to stay away from the UK, so that notices cannot be served on them, or sanctions taken against them.

Such ramifications were to the fore when the Supreme Court rejected extraterritoriality in Perry, and yet received far less attention from the Administrative Court in KBR Inc. It is arguable that this may prove to be the pressure point for future challenge to the ambit of section 2(3), which the decision in KBR Inc may prove not to have put to rest.

Jonathan Hall QC appeared for the SFO.

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16 October 2018

Weekly Digest: 15 October 2018

This week’s Digest considers two judgments. The first, handed down by the Court of Appeal (Criminal Division), considers the interpretation of s, 4(2) of the Theft Act 1968 and the circumstances wherein land can be property for the purposes of s. 1(1) thereof. The second is a judgment of the Divisional Court and considers the correct approach to be taken on appeal against extradition where the warrant, pursuant to which extradition has been ordered, has been amended.

R v. Gimbert [2018] EWCA Crim 2190

The judgment, available here, was handed down by Davis LJ on 10.10.2018.

This was an appeal against conviction on the basis that the transfer of a house under an invalid Power of Attorney could not constitute theft for the purpose of s. 1(1) Theft Act 1968 because of the exception in s. 4(2). The appeal was allowed for two reasons: (i) the owner of the property had herself signed the transfer in any event; and (ii) as the appellant was not acting as an authorised representative, the exception in s. 4(2) applied. The Court also dealt with a renewed application for leave to appeal against a conviction for conspiracy to defraud. That application was refused; the judge was right not accede to the applicant’s submission of no case to answer.

  

Ulaszonek v. Polish Judicial Authority [2018] EWHC 2618 (Admin)

The judgment, available here, was handed down by Whipple J on 08.10.18.

The issue in this case was, when the EAW pursuant to which extradition is ordered is amended by another EAW, reducing the offences for which the extradition is sought, must the appeal against extradition be allowed and the requesting judicial authority issue fresh proceedings on the basis of the amended warrant. In Whipple J’s view, the answer was no; the Court had the power to allow an appeal in part but dismiss it in respect of offences in respect of which extradition was still sought. The effect was, essentially, to trim the EAW.

 

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7 October 2018

Weekly Digest: 8 October 2018

This week’s Digest considers three judgments from the High Court. The first of these considers a challenge to the first Unexplained Wealth Order made under s.362A(1) of the Proceeds of Crime Act 2002; the second concerns the police’s decision to close an investigation into criminal allegations against a local authority; and the final case deals with an appeal against conviction of assaulting a constable in the execution of his duty.

National Crime Agency v Mrs A (Rev 1) [2018] EWHC 2534 (Admin)

The judgment, available here, was handed down by Supperstone J on 3 October 2018.

This case concerned the first Unexplained Wealth Order (UWO) made under s.362A(1) of POCA 2002, as amended by ss.1-2 of the Criminal Finances Act 2017. An UWO was granted against the respondent on 27 February 2018 in respect of one property on a without notice application. In the instant case the respondent sought to discharge that application, relying on eight grounds. The judge found that none of these were made out. The respondent’s application was dismissed and the UWO maintained.

Jonathan Hall QC appeared for the successful applicant, the National Crime Agency (NCA).

 

R (Wyatt & Anor) v Thames Valley Police [2018] EWHC 2489 (Admin)

The judgment, available here, was handed down by Bryan J on 28 September 2018.

In this case the claimants challenged the decision of the defendant police force, following a criminal complaint made by the claimants regarding the conduct of their local council, that there was insufficient evidence to meet the CPS’s threshold to justify further action. It was common ground that the defendant had already failed to examine earlier complaints satisfactorily, but the claimants alleged that this further decision was flawed on four grounds: (i) the investigation was not diligently carried out; (ii) the investigation was not independent; (iii) the decision contained inadequate reasons; and (iv) the report misapplied the law regarding potential criminal liability for copyright offences. The application was dismissed. The thoroughness of the defendant’s investigation went above and beyond what could have been expected, and any errors did not infect the substance of the decision.

 

Rawlins v Crown Prosecution Service [2018] EWHC 2533 (Admin)

The judgment, available here, was handed down by Supperstone J on 3 October 2018.

This was an appeal by way of case stated against the defendant’s conviction for three charges of assaulting a constable in the execution of his duty, contrary to s.89(1) of the Police Act 1996. The appeal was dismissed.

 

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The National Crime Agency has said that tech companies are too accepting that child sexual abuse will happen online

 

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1 October 2018

Michaelmas Update (2): 1 October 2018

This week’s Digest is the final post collating judgments released during the vacation period. This week includes five judgments, all handed down by the Court of Appeal (Criminal Division). The first considers the fairness of a trial where the appellant was unable to give evidence; the second, whether the judge misapplied the Definitive Guideline Causing Death by Driving; the third, an appeal against sentence on the grounds it was manifestly excessive; the fourth, an appeal against convictions for conspiracy; and the fifth, an appeal against conviction based on the admissibility of identification evidence.

R v Welland [2018] EWCA Crim 2036

The judgment, available here, was handed down by Leggatt LJ on 14.09.18.

The issue in this case was whether a trial was rendered unfair by the fact that the appellant, through having various seizures, was rendered unable to give evidence. The appeal was allowed and the conviction quashed; the judge should have adjourned proceedings to allow medical evidence to be gathered so that the appellant’s situation could be investigated and a decision could be made as to whether any special measures would enable the appellant to give evidence.

 

R v Monington [2018] EWCA Crim 2016

The judgment, available here, was handed down by Holgate J on 05.09.18.

The issue in this appeal was whether the sentencing judge had misapplied the Definitive Guideline: Causing Death by Driving in categorising the appellant’s case as one which fell within the top category of carelessness. The appeal was dismissed; the judge had not erred but was right to classify the appellant’s conduct as being of the highest level of carelessness.

 

R v Seccombe [2018] EWCA Crim 2017

The judgment, available here, was handed down by Holgate J on 04.09.18.

The issue in this appeal was whether, for an offence of conspiracy to pervert the course of justice, the sentencing judge (a) had erred in concluding that the custody threshold had been passed in respect of the appellant’s case; and, in any event, (b) had imposed a manifestly excessive sentence. The appeal was allowed to a limited extent: the judge had erred in taking the wrong starting point in the appellant’s case and she had failed to consider aggravating features regarding the appellant’s co-offenders.

 

R v Thompson [2018] EWCA Crim 2082

The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 26.09.18.

The appellant was convicted of two conspiracies at two separate trials, his latter conviction being the result of a retrial. He sought to appeal against both convictions; in respect of the first, on the grounds that the judge was wrong to admit evidence of his previous conviction under the bad character provisions of the Criminal Justice Act 2003; in respect of the second conviction, the appellant argued that the judge was wrong, after the prosecution had changed their case mid-way through the trial, not to accede to his submission of no case to answer. Only the appeal against his latter conviction was allowed.

 

R v Gray [2018] EWCA Crim 2083

The judgment, available here, was handed down by Thirwall LJ on 27.09.18.

This was an appeal against conviction on two grounds; the first criticised the trial judge’s failure to accede to a submission of no case to answer as the prosecution case was based on inadequate identification evidence; the second was that, if the evidence was admissible, the judge failed to deal with it adequately in the summing up. The appeal was dismissed: the evidence was admissible and even though the judge’s directions could have been clearer, the conviction was not unsafe.

 

Justice only for the wealthy, says Law Commission

 

 

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