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In January 2018 the appellant pleaded guilty to possession of cannabis. In May 2018 he was convicted of supplying a controlled class A drug (crack cocaine) under section 4(3)(b) of the Act. He was sentenced to a total of 5 years and 6 months’ imprisonment. The trial judge directed the jury on the elements of the offence, stating that: “for an offence to be shown to be committed the prosecution must prove, firstly, that there has been a supply of class A drugs to another, or the making of an offer to supply class A drugs to another; secondly, that the defendant participated in such an enterprise involving such supply or such an offer to supply; and thirdly, that he knew the nature of that enterprise.”

The appellant appealed on the ground that the wording “or the making of an offer to supply” was incorrect. Subsections 4(3)(b) and 4(3)(c) of the Act created two separate offences: under (b) there has to be an actual supply, whereas under (c) it is enough that there was an offer to supply. The appellant argued that the direction given involved an impermissible “either/or”, creating risks both that the appellant might be convicted under s.4(3)(c) when he had not been charged under that provision, and that the jury might be under the impression that provided some agreed on one basis, and some on another, they would be entitled to convict.

The appellate Court agreed. Section 4(3) gives rise to three separate and distinct offences, leaving no room for an either/or direction. The elements of the offence are (i) that there has been the supply of a controlled drug; (ii) that the defendant participated in an enterprise involving such a supply; and (iii) that the defendant knew the nature of the enterprise, namely that it involved such supply. The Court noted that the treatment of the offence under section 4(3)(b) in Archbold (2019) at paragraph 27-41 is perhaps unduly compressed, and that Blackstone (2019) at paragraph 19.49 wrongly includes the either/or formulation. It did note that nothing in this judgment dealt with the situation where the indictment contained the two separate counts. However, the Court concluded that this misdirection did not make the conviction unsafe – the evidence made for an unanswerable case under section 4(3)(b). The appeal against conviction was dismissed.

The appellant stood trial in April and May 2018 on an indictment which contained charges of indecency with young children allegedly committed between 1986 and 1991 and of possession of several indecent photographs of a child in 2015. The defence applied to sever the indictment so that the historic counts and the recent counts could be tried separately. The judge refused the application. The appellant was convicted of four of the historic counts and three of the recent allegations. He appealed.

The pre-2016 Criminal Procedure Rules stated that charges for any offences may only be joined on the same indictment if those charges are founded on the same facts, or form, or are part of a series of offences of the same or a similar character. In the leading case of Ludlow v Metropolitan Police Commission [1971] AC 29 the House of Lords held that for two or more offences to constitute a “series of offences of the same or similar character” there must be some nexus between the offences i.e. a feature of similarity which all the circumstances of the case enabled the offences to be described as a series. Bean LJ stated that it was doubtful whether charges separated by at least 24 years, as in these case, could be said to form a series of offences of the same or a similar character.

However, the new Criminal Procedure Rules introduced in 2016 at r.3.21(4) provide the court with a significant discretion when deciding whether to separate trials on the same indictment, stating that the court may order separate trials if it is of the opinion that “the defendant otherwise may be prejudiced or embarrassed in his or her defence”. The Court held that the 2016 rules have removed the technical barriers to joinder in appropriate cases. Where the evidence on one count would be properly admissible on the other as evidence of bad character it is difficult to argue that the defendant would be so prejudiced by having both counts or sets of counts on the same indictment. On the facts, an application by the prosecution to adduce the evidence of the historic offences at the trial of the current offences could properly have been allowed. It was a proper exercise of the judge’s discretion to refuse severance of the indictment. The convictions were not unsafe and the appeal was dismissed.

In late October 2016 someone stole D’s crop of cannabis that he had been growing in his outhouse. D suspected Mr Ramshaw and went to his house on 15 November 2016. Ramshaw suffered serious injuries, including a rupture of his spleen and an injury to the head. He was taken to hospital where his spleen was immediately removed. But for that operation there is a substantial risk that he would have died as a result of internal blood loss. Mr Ramshaw’s account of the incident is that three men armed with weapons came into his home and beat him.

D was charged with aggravated burglary, but pleaded guilty to a section 18 offence on the written basis that he was not intent on violence when he went to Ramshaw’s property and did not attend with a weapon. On the contrary, Ramshaw produced a baseball bat, which D took from him and struck him with twice unlawfully. The indictment was amended to reflect the plea but the prosecution did not accept the basis of that plea. The judge indicated that he did not think it was necessary for there to be a Newton hearing or trial of the issue as it would not make a material difference to sentence.

The pre-sentence report indicated that D expressed severe remorse for his actions, accepted that he had overreacted to his belief that Ramshaw had stolen his cannabis crop, and was still severely influenced by his grief at the loss of his wife 2 years before the offence. Before the court were a number of character references, including one from a retired police officer, who knew D well and spoke highly of him. In the time since his arrest he had lost both his home and his employment but had subsequently started his own business by which he was earning enough to care for himself and his children.

This case fell within category 1 of the sentencing guidelines for section 18, with a starting point of 12 years’ custody and a range from 9 to 16. The judge accepted this, however identified three exceptional features which caused him to move it down from category 1 to category 2: (i) D’s positive good character; (ii) genuine remorse coupled with clear evidence of a change of behaviour on his part, including cessation from drug use; and (iii) the position of the children who having lost their mother would now be deprived of their father for a time. The starting point for category 2 was 6 years, further factors in mitigation brought it down to 5 years 4 months, and then a 25% credit for guilty plea resulted in the final sentence of 4 years’ custody.

On appeal, counsel for the Attorney General submitted that significant aggravating factors included that the origins of the offences lay in D’s discovery that someone had stolen the product of his criminal activity, that Mr Ramshaw had suffered life-threatening injuries, that there was higher culpability through the use of a weapon, and that this was an attack on the victim in his own home. While the trial judge was correct to consider the lengthy mitigating factors, he had neglected to consider these aggravating factors. The appellate Court agreed. A sentence which started at 12 years before taking into account the undoubted aggravating features had come down to 5 years and 4 months. Such a substantial reduction could not be justified by the mitigation. The sentence on D’s own basis of plea could not properly have been less than 9 years’ imprisonment. The sentence was thus unduly lenient and, giving credit for the guilty plea, the appellate Court substituted a sentence of 6 years 9 months’ imprisonment.

Unprotected departments including the Ministry of Justice face a continuing squeeze on spending well into the 2020s, according to updated figures published by the New Economics Foundation (NEF) think-tank. By 2023/24, the foundation has calculated, real terms per person funding for the MoJ will have fallen by 51% since 2010/11.

The full piece can be found here.

In 2018, 21,484 knife and offensive weapon offences were recorded, the most dealt with since 2009, when 25,103 offences were registered, according to the Ministry of Justice.

More details can be found here.

The Public Prosecution Service said there was enough evidence to prosecute Soldier F for the murders of James Wray and William McKinney.

More details can be found here.

The appellant, a Czech national, was convicted on 12 May 2008 in his absence by the District Court in Brno-Venkov of three offences of fraud committed between 2004 and 2005 and sentenced to eight years’ imprisonment. Extradition was sought pursuant to an EAW. The EAW stated that it was based on an enforceable judgment, namely the judgment of the District Court convicting the appellant. The EAW further specifies that he would be afforded an unqualified right to be re-tried upon his return in the event he made such an application. Before the District Judge, the appellant argued, in reliance on s. 14(a) of the Extradition Act 2003 (“the 2003 Act”), he was an accused person facing a prospective trial and that it would be unjust and oppressive to order his extradition taking account of the passage of time. The District Judge, however, ruled that the conviction provisions in s. 14(b) of the 2003 Act applied and, as such, the period of time to be considered was the time since the conviction, not since the crimes were committed. He concluded that the return of the appellant to the Czech Republic would not be unjust or oppressive. The High Court dismissed the appellant’s appeal, but certified the following point of law of general public importance, which was the subject of this appeal: “in circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he ‘accused’ pursuant to section 14(a) of the 2003 Act, or ‘unlawfully at large’ pursuant to section 14(b) for the purposes of considering the ‘passage of time’ bar to surrender?”.

The court dismissed the appeal. The express provisions of the 2003 Act in their natural meaning provide a coherent structure within which to address all cases of trial in absentia. The following principles should be applied by a court when seeking to characterise a case as an accusation or conviction case (at [50]):

• The dichotomy drawn by the Framework Decision between accusation warrants and conviction warrants is a matter of EU law. The Framework Decision does not have direct effect but national implementing legislation should, so far as possible, be interpreted consistently with its terms.
• The court should seek to categorise the relevant facts by reference to their status and effects in the law and procedure of the member state of the requesting judicial authority.
• Ordinarily, statements made by the requesting judicial authority in the EAW or in supplementary communications will be taken to be an accurate account of its law and procedure but evidence may be admitted to contradict them.
• A person may properly be regarded as convicted for this purpose if the conviction is binding and enforceable under the law and procedure of the member state of the requesting authority.
• For this purpose, it is not a requirement that a conviction should be final in the sense of being irrevocable. In particular, a convicted person who has a right to a retrial may, nevertheless, be properly considered a convicted person for this purpose, provided that the conviction is binding and enforceable in the law and procedure of the member state of the requesting authority.
• While the view of the requesting judicial authority on the issue of characterisation cannot be determinative, the question whether a conviction is binding and enforceable will depend on the law of that member state.

The court accepted that where a person with a right to a retrial is correctly classified as a convicted person for the purposes of the 2003 Act the passage of time prior to conviction is not taken into consideration. This is a deficiency in the drafting that should be rectified by Parliament, but until then article 8 of the ECHR provides an appropriate and effective alternative means of addressing the passage of time where the victim has been convicted in absentia. The district judge had thus been correct in his conclusion.

The appellant, Squibb Group Ltd (“Squibb”), was charged of two counts alleging breaches of the Health and Safety at Work Act 1974 (“the 1974 Act”); Count 1 charged failing to comply with its duty under s. 2(1) of the 1974 Act to ensure, so far as is reasonably practicable the health and safety at work of its employees and Count 2 an offence under s. 3(1) of breach of the same duty owed to those not employed by the appellant. The prosecution arose from Squibb’s involvement in a project to refurbish a school in which the presence of asbestos was widespread. The issue at trial was whether Squibb had done all that it was reasonably practicable for it to do to protect its employees and others against the risks to their health created by exposure to asbestos. The defence case was that it had reasonably relied on a report that all asbestos in the areas where it was engaged to carry out work had been identified and removed; the prosecution maintained that the report made it clear that areas that had not been assessed should be presumed to contain asbestos. The jury convicted the appellant on Count 1 but acquitted it on Count 2; Squibb was fined £400,000.

The appellant appealed against conviction, and to the extent that that was unsuccessful, against sentence. In relation to the appeal against conviction, the grounds were threefold: (i) the verdicts returned on Counts 1 and 2 were inconsistent; (ii) the jury should have been directed that it was not open to return different verdicts on the two counts; and (iii) the judge should have directed the jury to consider the work done by Squibb in April and July separately. As for the appeal against sentence, Squibb’s case was that the offence had been miscategorised, resulting in a sentence that was manifestly excessive.

The appeal against conviction was dismissed. On ground (i), for the court to intervene, it had to be shown that no reasonable jury could have reached the verdict that was in fact reached (R v Durante (1972) 56 Cr App R 708). In this case, there was a rational basis for the difference in the jury’s verdict; the jury was entitled to consider that the degree of risk of harm to Squibb’s employees was substantially greater than the degree of risk of harm to others and the jury’s verdict showed that while Squibb had done all that was reasonably practicable to protect the health of persons other than its employees, it had not discharged its obligations in respect of its employees. On ground (ii), in the court’s view, it followed from that conclusion that the judge could not be faulted for telling the jury to give separate consideration to each count and for directing them that it did not necessarily follow that the verdicts on each count would be the same. On ground (iii), there was no material difference in the way the prosecution case was put and thus the judge was entitled not to direct the jury to consider April and July separately.

The appeal against sentence was allowed. In the court’s view, there was nothing to substantiate the judge’s conclusion that the seriousness of the harm risked was at level A; expert evidence suggested that the result of Squibb’s breach of duty leading to death was extremely small. On that basis, the offence fell within category 3, and taking into account the 10% downward adjustment for mitigation, the appropriate fine was £190,000, which was substituted for the initial penalty of £400,000.

Section 236(1) of the Merchant Shipping Act 1995 provides that if any person finds or takes possession of any wreck in UK waters they have to inform the Receiver of Wreck. In 2012 Nigel Ingham was rescued on two occasions by the RNLI whilst diving in the English Channel. The receiver met Ingham in April 2013, whereupon he denied having taken any substantial items from wrecks. In September 2014 Blight’s fishing trawler, from which Ingham was wreck diving, was boarded by French coastguard officials. In October 2014 Ingham’s home was searched and around 100 items of wreck were found and seized, including a notebook which contained a list of items of wreck raised. The notebook also stated that Blight had agreed to pay Ingham 15% of the proceeds of sale of items raised. The items taken were cumulatively worth around £100,000 pounds, and Ingham kept £16,000 in cash in a safe. It appeared that most of the items had been sold off for scrap.

The prosecution case was that Blight and Ingham had engaged in a joint enterprise to raise items of wreck and sell them, without declaring them to the receiver, for commercial gain. Each man’s role was critical to the venture: Blight was the owner and skipper of the vessel used and Ingham was the expert diver. Blight was convicted on two counts of fraudulently failing to disclose to the receiver that he had taken possession of a wreck and sentenced to 3 ½ years in total. Ingham was convicted on four counts, and possession of criminal property, and sentenced to 4 years in total.

The judge found the culpability of both men to be high; they had planned and carried out the fraud for a number of years, making a large sum of money in the process. The fact that Ingham received a smaller share of the proceeds of sale was at most a factor to be taken into account at the end of sentencing. Sentencing also required the estimation of the amount of financial harm caused by the fraud. Taking £100,000 as the relevant figure for assessment of harm put the offence at the top of category 3 or the bottom of category 2 in the sentencing guideline.

The main issue on appeal was whether the judge was right to treat the estimated value of the wreck items as a suitable measure of loss to the wreck’s legitimate owners. When a wreck comes into the possession of the receiver it must be held for a year. If no owner comes forward to claim it, the wreck passes to the Crown. In either case a legitimate salvor of the wreck may claim a salvage award. The question was whether the judge should have taken into account the sum that would have been paid in salvage fees and award had the wreck been legitimately salvaged. The appellate court held that, per the 1989 International Convention on Salvage, only salvage operations that have a “useful result” give right to a reward. Removing and disposing of items taken from wrecks which were causing no obstruction cannot be regarded as useful activity, all the less if it involves the plunder of wrecks of historic interest. Had the items been salvaged and declared correctly, their owners would have received them. Those owners therefore lost the value of those items. The appeals were dismissed.

The appellant’s offending consisted in the main of videos he had made of teenage boys in the changing room at the pool, a man and a boy urinating in public toilets, people in the changing rooms and bathrooms in the mental hospital where he used to work, and the people he lived with as they used the shower and bathroom. At trial, as well as a custodial sentence, he was given a SOPO which included 10-year bans against (i) using a device capable of accessing the internet, other than a desktop computer provided by his employer and installed with internet monitoring software; (ii) accessing ‘social websites’; and (iii) having a smartphone that could either access the internet or take photos/videos.

Shortly after the appellant’s release from prison it became obvious that the order was unworkable. He contacted the court to seek advice on how to vary the order, of which the police were supportive, but it was noted that he was actually seeking to appeal the terms of the order. The case was listed but the application declined; it was unclear from the court records why. The case was listed for mention and then adjourned. No transcript exists of this subsequent hearing. Eventually the case was appealed to the Court of Appeal, which was highly critical of this state of affairs. The extension of time was duly granted; it was not the fault of the appellant that the appeal was out of time.

At the outset the Court pointed out that the order did not conform to the guidance given in Smith [2012] 1 WLR 1316, as should have been drawn to the trial judge’s attention by counsel. Hughes LJ in Smith held that a blanket prohibition on computer use or internet access is not permissible, which, in effect, this order was. There was no guarantee that the appellant was employed or that, if he was, he would be provided with a desktop computer.

The order was varied to include terms that he: (i) notify the police within 3 days of purchasing a device capable of accessing the internet; (ii) not delete its history of internet use; (iii) interfere with the normal running of any computer monitoring software; (iv) use any remote story media capable of storing digital images unless within 3 days of creation of an account for such storage he notify the police of that activity; (v) provide access to the police to any device or storage account; (vi) live in the same household as any child unless with the express approval of Social Services; and (vii) have unsupervised contact with a child other than with the informed consent of that child’s guardian or the express approval of Social Services.

The appellant was given a non-molestation order not to visit his elderly mother on the application of Tower Hamlets. He breached that order within three weeks and was remanded in custody. He pleaded guilty to breaching the order and was sentenced to 12 weeks’ imprisonment. A month after his release he was again arrested at his mother’s address, convicted, and sentenced to 5 months imprisonment. Shortly after his subsequent release he again appeared in the Crown Court following allegations that he had breached the order a third time, but this time it was conceded that the original non-molestation order was invalid. Tower Hamlets were not an ‘associated person’ as required by the Family Law Act 1996. Consequently, as a matter of law, they were not permitted to apply for such non-molestation orders. The appellant appealed against his two previous convictions.

The appellant submitted that as the application should have been refused, as the statutory framework was not complied with, the order was invalid ab initio and was therefore not something that could form the basis of separate criminal proceedings. The Crown submitted that the correct avenue for relief in cases such as this is for the appellant to challenge the validity of the non-molestation order in an appropriate manner. It is not a defence to criminal proceedings.

The court held that it is a long-standing principle that there is an obligation to obey an order of a court unless and until that order is set aside, following Chuck v Cremer [1846] EngR 924 (A). The appellants could not avail themselves of authorities, such as R v Beck [2003] EWCA Crim 2198, that stated that the Crown Court was a court of limited statutory jurisdiction; the non-molestation order was granted by the High Court, which is of unlimited jurisdiction. However, Singh LJ went further to note that the rule that an order of the court must be obeyed unless and until it has been set aside has also been applied to courts of limited jurisdiction, such as in Johnson v Walton [1990] 1 FLR 350. This case was not cited to the court in Beck. The famous case of Boddington v British Transport Police [1999] 2 AC 143 could be distinguished on the ground that that case concerned the validity of bylaws and not court orders. While the validity of a bylaw can be questioned by way of defence in criminal proceedings, court orders could not.

The appropriate remedy was not a challenge to the conviction of the appellant but to the order imposed by the High Court. If this was to be done so as to provide a defence, it ought to have been done before an offence was committed. Making an application to set it aside four or five years after the event could not form a defence. The Court also laid down a marker to clarify that the orders of courts with “limited statutory jurisdiction”, such as the Crown Court, the County Court and Tribunals must still be obeyed, even if wrong in law, unless and until that order has been revoked.

The issue in this prosecution appeal against a terminating ruling from the trial judge was whether, in the context of a trial for fraud, D was under a legal duty to disclose to her relevant local authority the fact of her residence at a particular address. The prosecution case is that D is and has been since 1998 the registered legal owner of a property. In 2008 she said that she had moved out of the property and applied for a single person’s discount in respect of her council tax. A new council tax account was set up in the name of her tenant and a 25% discount granted to council tax. The prosecution case is that D remained resident at the property, attempting to dodge council tax, and made multiple representations to that effect. Counts 1 to 5 of the indictment were pleaded as counts of fraud by false representation. Count 6 was pleaded as fraud by dishonestly failing to disclose her residence at the property, which she was allegedly under a legal duty to disclose.

The trial judge noted that there is no express provision in the statutory regime for people in D’s position to keep a local authority informed of where they are living. The prosecution argued that such an obligation had to be implied into statute as it would be ‘ludicrous’ to contend that there was no obligation on a household to tell the local authority if they are residing in a property. The trial judge expressed sympathy with the prosecution’s argument, and granted them a lengthy adjournment to attempt to find any statutory provision to that effect, but had to conclude that there was no such duty. The prosecution appealed.

The Court of Appeal could not fault the judge’s reasoning. It appeared that while D was under a legal obligation to pay the due amount of council tax, she was under no such obligation to notify the council of her continued residence. From a public policy position, this apparently surprising conclusion made sense. The Court noted that many people, such as young people or students, move regularly. Few give notice to their new local authority that they have moved into the area. Under the prosecution’s argument, this omission could open them up to prosecution. The appeal was dismissed.

The Lord Chancellor has dismissed the Criminal Bar Association’s charge that recorders are sitting fewer days because of budget cuts – saying the true reason is that the number of Crown court cases has fallen.

The full piece can be found here.

The former head of the Metropolitan Police, Lord Stevens, has contributed to the growing political dispute over the increase in rates of knife crime by stating that: “I don’t think [Theresa May] listens, quite frankly, to what she’s being told.”

More details can be found here.

A second IT failure in two months has caused trials to be delayed and left lawyers unable to access case documents. The Criminal Bar Association said that Crown Court Digital Case System, the system on which case papers are now hosted, malfunctioned at Sheffield, Carlisle, Nottingham, Exeter, Norwich, Croydon, and other courts.

The full story can be found here.

Victims of violent crime who were denied compensation because they lived with their attacker at the time of the incident will be able to reapply under government plans to scrap a controversial ‘same-roof’ rule. The Ministry of Justice last week laid down a statutory instrument to abolish the rule, which applied to incidents that happened before 1979. The rule was part of a scheme introduced in 1964 to ensure perpetrators would not benefit from compensation paid to victims with whom they lived.

The full piece is available here.

The appellant and Lance Corporal Lindley were both garrisoned in Cyprus. Lindley entered the appellant’s room with his consent. They both remained drinking and chatting for a while before the appellant left to get some lunch. Upon his return he found Lindley drunk and damaging the room. In the altercation that followed the appellant repeatedly stabbed Lindley. The appellant’s case was that he acted in self-defence at all times. He argued that the householder defence was available because the incident occurred in the appellant’s room in forces’ accommodation, and he had instructed Lindley to leave.

The appeal raised three questions. First, was the householder defence available in cases where the injured person entered a building lawfully, but thereafter became a trespasser? Secondly, was there evidence that the appellant believed Lindley to be a trespasser? Thirdly, and in any event, was the conviction safe?

On the first question, section 76 (1) and (2) of the 2008 Act provides that for D to successfully rely on the defence of self-defence the degree of force used must be reasonable. Subsection (5A) provides that in a householder case any force short of grossly disproportionate is to be seen as reasonable, and subsection (8A)(d) provides that for a case to be a householder case the force can only be used at the time that D believed V to be in, or entering, the building as a trespasser. The court held that on a plain construction of the statutory language subsection 8A(d) is concerned with the belief of D whether V was in or entering the building as a trespasser, not a belief whether V simply entered the building as a trespasser. The judge at first instance had erred in interpreting subsection 8A(d) in a similar fashion to section 9 of the Theft Act 1968, where one of the elements of burglary is for D to have entered the building as a trespasser.

On the second question, there was slight evidence that the appellant believed Lindley to be a trespasser. In his examination-in-chief he stated that he demanded Lindley leave his room. The judge therefore erred in suggesting that there was no evidence which could support a householder defence, and it should have been left to the tribunal of fact, the Board.

However, on the third question, it was abundantly clear from the judge’s sentencing remarks that the Board was satisfied that the appellant did not genuinely believe that it was necessary to use force to defend himself. This was the starting point for consideration of self-defence. The conviction was safe despite the error of law and consequent misdirection identified.

The three youths, aged between 16 and 19, attacked Kevin Johnson outside his home in Sunderland. The fatal stab wound was inflicted by either Curtis or Hawkes. Shortly afterwards the three attacked Jamie Thompson. He was stabbed but recovered. The jury unanimously convicted all three of both murder and wounding with intent. Towers applied for leave to appeal both counts. On the first, the jury ought to have been direction that if the only evidence of active participation came after the fatal stabbing it could not render him guilty of murder. On the second, the judge had been wrong to reject the submission of no case to answer given that the evidence was that Towers had not touched Thompson but only conversed with him. Both submissions were rejected by the appellate court in 2008; the jury had found that Towers joined in the attack on Johnson before the fatal wound was inflicted, and he had stopped Thompson as a ploy to detain him.

The CCRC in analysing the case considered that (i) at the time of the fatal attack Towers was standing away from the struggle, (ii) given the evidence it is likely that foresight rather than personal or shared intention to commit really serious harm was central to his conviction, (iii) none of the evidence suggested an intention to encourage or assist others to use their weapons against Johnson, and (iv) there was evidence that Towers was angry with the principal and challenged him about what had happened, providing good evidence that he did not have the requisite intention. This conclusion was reached despite acknowledging that the jury had found that, at a minimum, Towers had realised his co-defendants were armed and that really serious harm might result.

The Court briefly rehearsed the present legal position as set out in R v Johnson. The test was whether, were the convictions to be upheld, a substantial injustice would result. This was a high threshold and resulted from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The starting point on the evidence of this case was the clear conclusion from the jury that Towers knew that both he and the principal had weapons and that he at least foresaw the possibility of the infliction of really serious harm. Immediately before the fatal stabbing Towers had thrown a paving slab at Thompson. The jury was open to conclude that Towers had the requisite intention to cause grievous bodily harm to Thompson. The test of substantial injustice was not satisfied.

The charges arose out of a day-long gang fight through central Leicester in April 2015, culminating with one victim receiving 13 stab wounds in Bede Park. Yaryare brought a knife and was identified as the one leading a group of 20 youths in pursuit of this victim through the park, while Hassan brought along a metal pole and was one of the other members of the group. Yaryare had fifteen previous convictions, while Hassan had none.

The trial judge was referred to the sentencing guideline for attempted murder. Prosecution counsel suggested that for both defendants bringing a weapon to the scene, and the other aggravating factors, indicated a sentence towards the lower end of level 1 of the guidelines or the top end of level 2, or seventeen to 25 years’ custody. The judge disagreed, placing the sentences in the middle of level 3. The judge considered that the stabbing of the victim itself was spontaneous, and while Yaryare played a very prominent role in events Hassan did not. Yaryare received a sentence of thirteen years and six months for the attempted murder, fourteen years and six months in total, while Hassan received a sentence of thirteen years both for the attempted murder and overall.

The appellate court held that the judge has misdirected himself as to the starting point in the relevant guideline. The fact that the differential between the two was only six months despite the significant aggravating factors for Yaryare was also surprising. The court held that the sentence for Yaryare was unduly lenient. His sentence was placed in level 2, with a starting point of fifteen years, which was increased to seventeen years and a half years for the attempted murder charge by the presence of the significant aggravating factors. In total Yaryare was sentenced to eighteen and a half years. The court also concluded that while Hassan’s sentence was lenient, it was not unduly lenient, and so the reference was dismissed as far as it related to him.

The underlying fraud was a Missing Trader Intra Community Fraud (“MTIC”) fraud which cheated the revenue by traders failing to pay or account for VAT received from a trader in another EU country to whom they had purported to sell goods. The appellant, an experienced FX trader, was an account manager at a money service bureau called Omnis FX capital (“Omnis”). In the period March to November 2011 the estimated tax loss to the European Revenue Authorities was about £17.5 million on a total sum passing through Omnis of around £29.5 million. The appellant was responsible for managing 60% of those trades.

The judge found that the appellant did not pay a leading role and assessed his culpability as medium. She also found that he didn’t make significant personal gain, but was primarily motivated by getting more business and commission for the company. The confiscation order was based on the sum through which the appellant had fraudulently benefited. However, while the prosecution argued that the benefit figure should be the amount of money that went through Omnis as a result of the illegal trades for which the appellant was responsible (60% of £29.5 million), the appellant argued that he had actually only personally benefited from a commission of £4,200 for those trades. The judge agreed with the prosecution. The appellant appealed.

Pursuant to section 6(4)(c) of the Proceeds of Crime Act (“POCA”) the court must decide whether and to what extent D has benefited from his particular criminal conduct. Having done so the court must then assess the recoverable amount under a confiscation order, which is an amount equal to D’s benefit from the conduct concerned or, if less, the available amount. This is the benefit figure. The question was whether the judge was right to find that the defendant obtained 60% of the criminal funds which came through the Omnis account.

The court found that the judge was right. The difference between the appellant and a notional employee who is unwittingly involved in the mechanics of money laundering is that the appellant was knowingly acting as a money launderer. This act was outside his official employment. He was not merely a custodian for the laundered money, but benefited directly. The fact that he had no legal interest in the Omnis account was secondary to the fact that he had sole operational control over the transfers that he was responsible for. He did therefore obtain the funds. The appeal was dismissed.

Her lawyers are likely to argue that stripping the ISIS bride of her British citizenship will leave her stateless.

The full piece can be found here.

Councils have called for licensing powers to tackle “lawless” shisha bars that violate laws on smoking and fire safety by allowing smoking indoors and serving under-18s.

The Local Government Association (LGA) has been struggling to regulate premises that persistently flout regulations, as prosecutions are slow and owners making high profits are increasingly undeterred by one-off fines of £2,500.

More details can be found here.

The defendant asserted in his police interview that he had the article in his pocket in connection with his apprenticeship as a barber, but at trial his defence team also submitted that it did not fall within the prohibition in section 139 as this provision was intended to prevent the carrying of fixed bladed knives in a public place. The prosecution argued that it was a razor, not a pocket knife, and lethal in the wrong hands. It was thus appropriate to invoke to mischief rule of statutory interpretation. The judge ruled that while the authorities offered minimal assistance, as a matter of common sense the article was a bladed article that folded simply into and out of the handle, and thus fell within the definition of a pocketknife.

On appeal the prosecution argued that on its plain meaning a cut-throat razor is not a knife and therefore not a pocketknife. In addition, under the ‘mischief’ approach to statutory interpretation, Parliament could not have intended for someone to carry a cut-throat razor in a public place without having to justify such possession. The defence submitted that the starting point when determining any provision imposing criminal liability should be to apply the presumption that Parliament intended the meaning that was most favourable to the accused.

The Court agreed with the prosecution. While a penal statute is to be construed strictly in favour of those who may be prosecuted under them, that did not outweigh the plain meaning of the statute. Previous authorities established that a folding knife had to be readily and immediately foldable, without the pressing of a button. The article in question in this case required the pressing of a button to close. However, the real issue in this case is whether the article can properly be regarded as a pocketknife, not whether or how it can fold. In the Court’s view, it plainly could not, as a pocketknife is not an apt description for a cut-throat razor. The appeal was allowed and the proceedings resumed.

The appellant, now 46 years old, argued that the sentence was manifestly excessive, the two sentences should have been imposed concurrently since the offences happened at the same time, and that the judge gave insufficient weight to the appellant’s youth at the time that the offences were committed. On any view he had been under 18 when most of the offences were committed. The prosecution submitted that there had been abundant aggravating features, that the judge clearly passed the sentence with the principle of totality in mind, and that the judge also took into account the appellant’s age at the time of the offences.

The Court held that the sentences were not manifestly excessive, and that the judge had considered the principle of totality, but agreed that he had appeared not to have taken into account the age of the appellant at the time of the offending. For example, he had passed a 12-month period of extended licence under section 236A(1)(b) of the Criminal Justice Act 2003 in respect of offences which took place when the appellant was under 18, which was contrary to that section. The Court therefore substituted two sentences of nine years, to run consecutively, and quashed the section 236A sentences.

The appellant was made subject to a ‘gang injunction’ order containing 26 conditions including not entering various areas of Grays Town Centre, not being in possession of knives or drugs, not wearing a hooded top, and not changing his mobile phone without first notifying the police. He was arrested in breach of these conditions and on suspicion of criminal offences (possessing a knife in a public place and possessing cannabis), interviewed in the presence of his solicitor, and remanded in custody overnight for a hearing the next day in relation to the breach of the court order. However, no representation was arranged for this hearing, as his solicitor was under the impression this was a civil matter. At the civil committal hearing the appellant, though surprised to not be represented on legal aid, agreed to represent himself. He was sentence to 28 days imprisonment suspended for 12 months.

On appeal the appellant argued that the judge wrongfully failed to adjourn the proceedings to allow the appellant to obtain legal aid and representation, to inform the appellant of his right to remain silent, to warn him of the risk of self-incrimination, and to adjourn the proceedings at the conclusion of the appellant’s evidence to permit him to obtain legal representation for a plea in mitigation.

The Court held that the appellant had been deprived of valuable safeguard to ensure a fair hearing. The nature of contempt proceedings was not explained to him, and the terms of the injunction were lengthy and convoluted. The hearing was not so urgent that an adjournment could not be granted, especially when both the judge and counsel for the respondent recognised that the appellant was likely eligible for legal aid and representation. The appellant, under the age of 18 and with no prior convictions or other experience of the courts, could not have been expected to understand the consequences of the hearing. The judge also failed to inform him of his right to remain silent, or warn him about self-incrimination. The appeal was allowed and the contempt application remitted for further hearing before a different judge.

Applications are invited from candidates to fill vacancies for the Presidency of the Supreme Court and two, possibly three, Justices of the Court.

The full piece can be found here.

The Home Secretary has said that Shamima Begum, who fled to Syria as a schoolgirl to join the Islamic State group, could be prevented from returning to the UK.

The full piece can be found here.

Chris Henley QC argues that there is too much talk about diversity and not enough action to prevent women criminal barristers leaving the profession. He suggests more predictable hours, better pay, and more opportunities for female practitioners to appear in heavy fraud, terrorism and murder trials.

More details can be found here.

The appellant and his co-defendant had murdered a 15-year-old boy in an unprovoked attack. He spent time on remand in a young offenders’ institution under s. 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”). Thereafter, he was remanded under s. 91(3) of the 2012 Act for a total of 192 days, throughout which he was subject to certain conditions, including an electronically monitored curfew and reporting requirements. When sentenced, the judge was not informed about the time the appellant had spent on remand, despite the judge seeking the parties’ assistance that, if the judge was to impose a sentence under the provisions of s. 91 of the Powers of Criminal Courts (Sentencing) Acts 2000, whether account was to be taken of the time on remand rather than there being a reduction of a specific number of days. The appellant appealed, arguing that the judge had been led into error in not adjusting the sentence to take into account the time the appellant spent in local authority accommodation; that such was the restriction of his liberty that credit should have been for the whole period spent on remand. Alternatively, the appellant argued that, according to R v D [2016] EWCA Crim 1807, credit of 96 days should be given, that being the time spent on qualifying curfew whilst remanded to local authority accommodation.

The Court allowed the appeal, substituting a sentence which gave credit for 96 days spent by the appellant on qualifying curfew. A period of remand in local authority accommodation under s.91(3) of the 2012 Act could not be the subject of automatic credit given that the amended s. 242(2)(b) of the Criminal Justice Act 2003 referred only to remand under s.91(4) of the 2012 Act (see R. v Anderson (Diago) [2017] EWCA Crim 2604). However, the statutory framework did not exclude altogether the possibility of a judge giving credit for time spent on remand under s.91(3) of the 2012 Act when calculating the length of the sentence to be imposed. R v D illustrated that the requisite proportion of such time ought to be credited when the offender had been subject to a qualifying curfew. The amount of such credit, if any, would depend on the facts of the particular case, and the judge’s assessment of what the interests of justice required and as such it was not purely mathematical. Notwithstanding the ultimate orders made in R v D and Anderson, there was no power to order the authorities to give credit for time spent on remand under s. 91(3), and/or for time spent on qualifying curfew whilst on remand under s. 91(3). The only way that such credit could be awarded was for it to be included in the calculation of sentence, with the sentence imposed being net of the credit given. In the instant case, the interests of justice did not require the giving of any further credit beyond 96 days for the time spent on qualifying curfew.

The appellants, Marina Smythe (“MS”) and Michael Osbourne (“MO”), were convicted of causing or allowing serious physical harm to a child, contrary to s. 5 of the Domestic Violence, Crime and Victims Act 2004 (“the 2004 Act”). Each was sentenced to a term of 8 years’ imprisonment. A postmortem examination had revealed that Bailey, the couple’s child, had sustained serious injuries; the judge said that both had been convicted on compelling evidence of causing or allowing significant harm to their baby. In sentencing, the judge had been referred to draft sentencing guidelines that were not in force and that was the basis of her approach. The appellant appealed, making three broad points: (i) the sentence was manifestly excessive; (ii) the judge was wrong to have applied draft guidelines that were not in force at the date of sentence; and (iii) the judge erred in not distinguishing between the culpability of the parents.

The appeal was allowed, and sentences of 6 years’ imprisonment substituted for the original 8 years. In the Court’s view, the judge was “plainly in error” (at [23]) in sentencing by reference to the child cruelty definitive guidelines, which only came into effect on 1 January 2019; they did not apply to those who were sentenced before that date. Although the judge could not have adopted the 2019 guidelines, he might have had regard to the 2008 guidelines: Overarching Principles – Assaults on Children and Cruelty to a Child. These strictly applied to offences contrary to s. 1(1) of the Children and Young Persons Act 1933, the court might have had regard to these guidelines when considering offences under s. 5 of the 2004 Act, since the two offences have the same maximum sentence. In the Court’s view, the sentences imposed were wrong in principle because they were imposed by reference to categorisation guidelines that were not in force. Further, taking into account the seriousness of the offending, the good character, and the relative youth of the appellants, the sentences were also manifestly excessive.

The appellant pleaded guilty to one count of sexual assault of a child under the age of 13 and was convicted at trial of a further count of rape of a child under 13. At a short pre-trial hearing, it was directed that an intermediary attend to assist the appellant throughout the trial. At a later hearing, the trial judge ruled that there was no need for an intermediary to attend the whole trial, save for the purposes of assisting the appellant, if he gave evidence. The intermediary did not return to court, there were no attempts to find an alternative, and the appellant decided not to give evidence. As a consequence, the trial judge was minded to give an adverse inference direction pursuant to s. 35 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). Counsel for defence asked the trial judge to consider whether he should give the direction in its usual full form; the recorder noted that there was nothing in the appellant’s psychological report indicating that it was ‘undesirable’, within the meaning of s. 35(1)(b), for the appellant to give evidence; that the case was not complex;  and, that the appellant had dealt with the allegations fully in interview, during which neither the appropriate adult nor solicitor intervened. The appellant appealed against conviction on two grounds: the judge erred in (i) altering the original order regarding the provision of an intermediary; and (ii) directing the jury that an adverse inference could be drawn pursuant to s. 35 of the 1994 Act.

The appeal was dismissed. Ground (i) failed as the judge had given full reasons for his decision and was best placed to make it; further, although in light of the earlier ruling on the intermediary other judges may have reached a different conclusion, this case did not come  close to one of those rare cases mentioned by Lord Thomas CJ in Rashid [2017] EWCA Crim 2 where an intermediary was required for the whole trial. Regarding ground (ii), the Court held that the judge’s finding that nothing about the physical or mental condition of the appellant rendered it ‘undesirable’ for a direction to be made was justified; there had been no material to suggest that there was a causative link between the absence of an intermediary to assist the appellant to give evidence and the decision not to give evidence. Further, the court repeated the fact that the appellant had no significant difficulty in giving his account to police or his legal representatives.

The appellant pleaded guilty to the offence of inflicting grievous bodily harm on Nathan Johnston (“NJ”), contrary to s. 20 of the Offences Against the Person Act 1861. The appellant had punched NJ while intoxicated at a party. Life changing consequences ensued after NJ struck his head on the concrete pavement, which caused a cerebral oedema and bilateral frontal contusions to the brain. In passing sentence, the judge observed that this was a serious case of grievous bodily harm and formed the view that, as a result, a strict application of the sentencing guidelines was “inapt” and it would be contrary to the interests of justice to apply them. The appellant’s position was aggravated by virtue of his previous convictions, and the fact that he was on licence when he assaulted NJ. In light of this, the judge had taken as his starting point 56 months, imposing, after mitigation and discount for plea, a sentence of 42 months’ imprisonment. The appellant appealed on that basis that the sentence was manifestly excessive, emphasising that the judge erred in imposing a sentence that was outside of the guidelines.

The appeal was dismissed. In the court’s view, the sentencing judge was right to conclude that the factors in this case took the offence well into the category 1 area and beyond; in doing so, he had explained clearly and amply why he was doing that. He took into account all factors, including the very limited mitigation available to the appellant. The injury caused here was extreme and there were other aggravating factors beyond the life-changing injury caused. The court did not accept the submission that the sentence should have been lower as the appellant had only delivered one blow.

The claimant sought to challenge the decision of the Criminal Cases Review Commission (“CCRC”) to refuse to make a reference to the Court of Appeal (Criminal Division) in respect of the claimant’s convictions of rape of a woman, CP, and sexual assault by digital penetration of a woman, TOR. CP had attended the claimant’s flat and, during the course of a massage and acupuncture treatment, the claimant removed her underwear and had sexual intercourse with her. There was no allegation of force, but CP alleged she had protested and that the sex was non-consensual. A forensic medical examiner, Dr Gray, observed that there was redness inside CP’s vagina, but no clear evidence of rape. TOR alleged digital penetration of her vagina had occurred during a consensual treatment session; she had asked the claimant to stop and he did. In his submission to the CCRC, the claimant, broadly speaking, attacked the forensic evidence of Dr Gray, adducing a further expert report that alleged that Dr Gray had failed to include in her evidence the crucial fact of the pathology finding of thrush and any contribution that could have made to the presence of redness in the vaginal area and that her evidence was misleading. The claimant further tried to adduce further evidence in relation to TOR engaged in “predatory sexual behaviour”, which was relevant to undermine TOR’s assertion that she had been unaware of the legal situation that she was being sexually assaulted.

The claim for judicial review failed. The court reminded itself of the approach that the CCRC must take to such references as set out in R v Criminal Cases Review Commission, ex parte Pearson [1993] 1 Cr App R 141, at pages 149D – E and 149F – 150A; further, R (Charles) v Criminal Cases Review Commission [2017] EWHC 1219 (Admin), at [65] made it clear that the Divisional Court will be slow to intervene unless the claimant can identify some clear error of law within the decision challenged. Regarding the submission in relation to CP, the CCRC had applied the correct test, that of “real possibility”; the new evidence adduced by the claimant did not being to create a real possibility that the claimant’s conviction would not be upheld on appeal. Regarding the submission as to TOR, the CCRC’s conclusion, that there was a real possibility that the Court of Appeal would conclude the new evidence was not of any relevance, was correct; it did not contradict or undermine any of TOR’s evidence. Further, there was a real possibility that the Court of Appeal would not have accepted the evidence.

The Ministry of Justice has been accused of betraying those campaigning to ensure equality of arms between bereaved families and the state at inquests. After reviewing the current legal aid availability, the MoJ yesterday confirmed in its final report (available here) that it will not introduce automatic public funding where the state is represented.

The full piece is available here.

Research by the Disabilities Trust and Royal Holloway, University of London, found that nearly 65% of prisoners at a women’s jail may have suffered traumatic brain injuries at some point in their lives. Of 173 women screened at Drake Hall prison in Staffordshire answering questions about blows to the head, 64% gave answers consistent with having symptoms of brain injury. The answers of 96% of the women suggested that these arose from physical trauma.

The full piece can be read here.

The justice secretary, David Gauke, has confirmed that he will bring legislation enacting the reform before parliament in its next session. Such legislation would remove the need for separating couples to wait for years or allocate blame for the collapse of their relationship.

The full piece can be read here.

Sex offenders will be given support to find a job and make new friends under a pioneering scheme run by Nottingham Trent University and backed by police. Advocates of the scheme say it will reduce offending rates and the aim is to work with 100 people within the first year.

The full piece can be found here.

The appellants had spent, respectively, about 7 and 17 years in prison before their convictions were eventually quashed for being unsafe in light of newly discovered evidence. They subsequently applied for compensation under s. 133 of the Criminal Justice Act 1988 (“the 1988 Act”), as amended by s. 175 of the Anti-social Behaviour, Crime and Policing Act 2014. The respondent refused their applications on the ground that the new evidence did not show beyond reasonable doubt that they had not committed the offences. The appellants argued that the requirements contained in s. 133(1ZA) of the 1988 Act – i.e. that a person must show beyond reasonable doubt that the person did not commit the offence in order to claim compensation – was incompatible with the presumption of innocence contained in article 6(2) of the ECHR. The Divisional Court dismissed their claim, holding that it was bound by R (Adams) v Secretary of State for Justice [2011] UKSC 18 to hold that art. 6(2) did not apply to compensation decisions under s. 133, notwithstanding the ECtHR decision in Allen v United Kingdom (25424/09) (2016) 63 E.H.R.R. 10 to the contrary. In any event, it held that s. 133 was compatible with s. 6(2).

The Supreme Court, by a majority, dismissed the appeal. Although the decision in Allen might suggest that s. 133(1ZA) should be declared incompatible with art. 6(2), the question had not been decided by the ECtHR. There was nothing wrong with a criminal court, when setting aside a conviction, confining itself to indicating that the new evidence might have created the possibility of an acquittal, thus indicating that some ground for suspicion remained (Allen). That case also implied that while it would be objectionable to require an applicant for compensation to show that the fresh evidence demonstrated his innocence beyond reasonable doubt, it would not be objectionable to require him to show that it so undermined the original evidence against him that no conviction could possibly be based on it. To distinguish between those two scenarios for the purposes of art.6(2) added another unconvincing distinction to an area that was already full of unsatisfactory distinctions. There was no logical basis on which s.133(1ZA) could be seen as incompatible with art.6(2) (per Lords Mance, Wilson, Hughes and Lloyd-Jones). Lady Hale added that, although art. 6(2) was engaged, it did not follow that it had been breached in this case and, where a statutory provision might not lead to a violation, it was not appropriate to make a declaration. Lord Wilson added that if art. 6(2) had the meaning ascribed to it by the ECtHR in Allen, s. 133(1ZA) would be incompatible with it, but that meaning should not be adopted. Lords Reed and Kerr dissented on the basis that s. 133(1ZA) was incompatible with art. 6(2) because it effectively required the secretary of state to decide whether the applicant had established his innocence.

The respondents all had spent convictions, cautions or reprimands for minor offending. They challenged two statutory schemes which required the disclosure of convictions to potential employers. The first scheme concerned disclosure by ex-offenders and was governed by the Rehabilitation of Offenders Act 1974 and the Rehabilitation of Offenders (Northern Ireland) Order 1978. When questioned about previous convictions, an ex-offender was not obliged to disclose spent convictions. However, there were various exceptions to that rule. The second scheme concerned disclosure by the Disclosure and Barring Service and Access Northern Ireland. It was governed by the Police Act 1997 (“the 1997 Act”) Pt V, which provided for the mandatory disclosure of all convictions and cautions on a person’s record if certain conditions were satisfied. The amendments imposed further limitations on the convictions and cautions which had to be disclosed. However, the Courts of Appeal in England and Northern Ireland determined that the revised schemes were incompatible with art.8 ECHR. They also found that the schemes were disproportionate to their objectives because they were insufficiently specific in distinguishing between convictions and cautions of varying degrees of relevance. The Secretary of State for the Home Department and the Department of Justice for Northern Ireland appealed against these decisions concerning the compatibility of the amended schemes with art. 8 ECHR. One of the respondents cross-appealed against the refusal to quash the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 art. 2A(3)(c) (“the 1975 Order”), a measure amending the schemes.

The Supreme Court dismissed the appeals, upholding declarations of incompatibility and allowed the cross-appeal in part. For the purposes of art. 8, the two amended schemes were in accordance with the law. In the instant case, the rules governing the disclosure of criminal records under both schemes were highly prescriptive. The categories of disclosable convictions and cautions were exactly defined, and disclosure in those categories was mandatory. There might be arguments for more, fewer, wider or narrower categories, but the legality test was a fundamentally unsuitable instrument for assessing differences of degree of that kind.

As for whether the amended measures were proportionate, firstly, the Court concluded that it was legitimate for the legislation to require disclosure by references to pre-defined categories, as opposed to providing for a review of the circumstances of the case. First, it was entirely appropriate that the final decision about the relevance of a conviction to an individual’s suitability for some occupations should be that of the employer. Second, the objection to disclosure by category was based on the argument that employers could not be trusted to take an objective view of a conviction’s relevance, but the material available to support that objection was thin. Third, the two different schemes governing disclosure were carefully aligned, and the value of certainty was particularly high. Fourth, some four million applications for criminal record certificates were made every year in England and Wales, and a system of individual assessment would not be practical. The boundaries of the categories in the legislation had been drawn in an acceptable place and the categories in the scheme were appropriate, with two exceptions, namely: (i) the multiple convictions rule in ss. 113A and 113B of the 1997 Act, which provided that where a person had more than one conviction of whatever nature any conviction had to be disclosed in a criminal record certificate, could not be regarded as a necessary and proportionate way of disclosing criminal records indicating a propensity to reoffend; and (ii) disclosure of warnings and reprimands administered to young offenders would be inconsistent with the general purpose of those mechanisms, which was to avoid prosecutions and consequent deleterious effects on the young offender’s life.

The Court therefore upheld the declarations of incompatibility that had already been made in respect of the multiple conviction rule and the mandatory disclosure requirement for young offenders. In relation to the cross-appeal, a declaration of incompatibility was made in respect of s. 2A(3)(c) of the 1975 Order.

The respondents were directors of a major retail company. The company had issued a profit warning. A few weeks later, it issued a further statement in which it identified an overstatement of expected profit of approximately £250 million. The prosecution alleged that the overstatement of profits resulted from the practice of meeting impossibly high targets by unlawfully recognising income in an accounting period prior to the period in which it was earned. Some of the bringing forward of income was supported by false documentation. The overstatement to the market was alleged to be a result of fraud and false accounting by the respondents on the basis that they had been aware of the issue and not taken any steps to correct the figures. As a result of the overstatement, the market was misled and there was a risk that the shareholders would lose money when the share price fell. On retrial, the judge had accepted the respondents’ submission of no case to answer on the basis that no reasonable jury, properly directed, could be sure that the respondents had known that the respondents’ income had been improperly recognised.

The prosecution sought leave to appeal against the judge’s terminating ruling, contending that the judge had erred in (1) his reliance on an alleged “concession” that the prosecution had to prove that the respondents had known that the income was being improperly and unlawfully recognised (“knowledge”); (2) placing too much emphasis on evidence of concealment, as opposed to a failure to correct the figures (“concealment”); (3) ignoring the fact that it was sufficient for the prosecution to prove that the respondents had intended to expose another to risk of loss (“intention”); (4) usurping the function of the jury in his determination of the facts (“determination of the facts”); (5) failing to take into account significant evidence (“evidence”).

The application was refused.

1. Knowledge. In light of the prosecution difficulties in presenting their case, the judge’s understanding was entirely reasonable and justifiable. The difficulties arose out of the prosecution’s reliance on the underlying fraud and false accounting. The issue of bringing forward income was complex as it could be done in a number of ways. In the instant case, some of the improperly recognised income arose from the booking of legitimate income into the wrong period, and some seemed to be based on accountancy judgments, about which practitioners’ views may have differed. In the absence of accounting expertise, the prosecution was unable to differentiate between the different types of improperly recognised income and did not set out to prove the extent of the alleged underlying fraud or breaches of accountancy practice.
2. Concealment. The judge had focused on concealment because this was the way that the case had been presented and given the analysis at (i), a failure to correct could not logically arise.
3. Intention. The judge focussed on evidence of the respondents’ intent to keep their jobs, keep share price high and thereby increase their remuneration, but had not ignored the possibility of exposure to a risk of loss.
4. Determination of the fact. Where evidence was capable of more than one reasonable interpretation, a judge was not obliged to proceed on the basis that every possible adverse inference must be drawn against a defendant, especially where they considered the totality of the evidence pointed in the opposite direction. There might be a fine balance between withdrawing a case from a jury and thereby usurping its function, and leaving a case to the jury where the evidence was barely sufficient, but the judge was allowed a margin of judgement having heard the evidence and seen the witnesses.
5. Evidence. Even if the judge had not mentioned evidence relied on by the prosecution, he had borne all relevant matters in mind.

The appellant had been the co- and then sole owner of a specialist boarding school for boys aged between 7 and 16 who had been placed in the facility by reason of their inability to be educated in the mainstream educational system. In the Carlisle Crown Court, the appellant and four co-defendants were charged on a five-count indictment. The appellant was convicted on counts 2 (assault occasioning actual bodily harm) and 8 (cruelty to a person under 16 years). The appellant appealed against his conviction on these two counts: in respect of count 8, he contended that (i) the verdict on this count was inconsistent with the verdict on count 7 and (ii) the judge left the matter to the jury in a way not particularised on the indictment; on count 2, the appellant’s principle point was that the judge’s cross-admissibility direction was insufficient.

The appeal was allowed and the appellant’s conviction on both counts quashed.

Count 8. Count 8 had to be viewed in the context of count 7. By count 7, it was alleged that the appellant had slapped and punched the complainant in his office. It was then alleged that the appellant told the him to strip naked and go into the dining hall. Count 8 related to what was said to have happened immediately after that. The complainant said that he was further assaulted by the appellant, who grabbed him by the head, slammed it into the table and then kicked him when he was on the floor.

The court accepted that the verdicts on count 7 and 8 were “decidedly odd” (at [27]), but not logically inconsistent. However, this oddity was explained by the manner in which count 8 was left to the jury; the wording of count 8 added the word “humiliated”, which did not appear in s. 1(1) of the Children and Young Persons Act 1933. In his summing up, the judge focused on the wording of s. 1(1), but in a way that failed to account for the fact that, in this case, the prosecution had taken it upon itself to prove both assault and humiliation on this particular occasion. This, taken with the fact that the judge had twice referred to count 8 as being the incident of cruelty whereby the complainant had been “humiliated”, could have led the jury to think that humiliation was sufficient on this count. Accordingly, the conviction was quashed.

Count 2. In light of the judge’s cross-admissibility direction, which was generic evidence going to the culture of the school, the jury may have used the evidence on count 8 to support a verdict of guilty on count 2. Given that the verdict on count 8 was not safe, this in itself told against the safety of the conviction on count 2. If the complaints were to be cross-admissible, a tailored and qualified direction was needed, but none was given. Therefore, the conviction on count 2 was quashed.

A woman and her partner were accused of cutting their three-year-old daughter over the 2017 summer bank holiday. The defendants had denied the FGM and the alternative charge of failing to protect a girl from risk of genital mutlilation.

The full piece can be read here.

The number of homicides – including murder and manslaughter – rose from 649 to 739, an increase of 14%, in the 12 months to the end of September 2018. It is the the highest total for such crimes since 2007. Robbery went up by 17%, as did recorded sexual offences, according to the data released by the Office for National Statistics (ONS). Overall crimes recorded by police went up by 7% with a total of 5,723,182 offences recorded.

The full piece can be read here.

The prisons watchdog has said that more than half of the inmates held in prisons for young people in England and Wales are from black and minority ethnic backgrounds, prompting warnings that youth jails have hit “American” levels of disproportionality.

The full piece can be read here.

Addressing the secondary issue first, the Appellate Court noted that section 58 requires the Crown Court to be informed of two things by the prosecution: (i) that it intends to appeal, and (ii) that, if the appeal is declined or dismissed, it agrees to the Defendant’s acquittal. Section 58 does not explicitly specify any mechanism for informing the court of these matters.

The Court held that section 58 did not implicitly require each of the steps to be taken orally. While this will be the procedure in the majority of cases, with judgments given ex tempore, it is no longer uncommon for judges in the Crown Court to hand judgments down or circulate them in advance. This was to be welcomed as improving the speed and efficiency of trials. With that in mind, there was no impediment to the prosecution informing the court by email under section 58. The statute should not be interpreted in a way that would spawn unnecessary hearings or require the unnecessary attendance of parties at the handing down of a ruling. Notice of appeal had been validly served and the Court had jurisdiction to hear the matter.

The main substance of the appeal centred on the correct interpretation of section 10(3) of the 1991 Act. The Respondent, a police constable, was exercising his police dog in a field on 6 June 2016 when the dog attacked and injured a runner. The Respondent was prosecuted under section 3 of the 1991 Act for being in charge of a dog dangerously out of control. At trial and in the appeal he relied on the defence provided by section 10(3), arguing that as he was the designated handler of the dog and obliged to care for and exercise the dog he came within the exemption. The prosecution argued that section 10(3) could only avail the Respondent if he was on operational duty and was using the dog during that duty.

The appellate court’s reasoning began by noting that the statutory purpose underlying the exemption was the protect dogs used by the police and other crown servants to chase down fleeing suspects or detect crime. The court then focused on the definition of “using” a dog. Under the common everyday definition found in the Shorter Oxford English Dictionary the term “using” a dog suggested an active engagement in a directed task, or in support of a person for an identifiable purpose. Millions of people take their dogs for a walk, but to say that they are using them whilst doing so would be a misuse of language.

This analysis was reinforced by the rest of the provision, which required the use to be “for a lawful purpose” and “by a constable or a person in the service of the Crown”. Both of these elements suggest a restriction on the purposes for which the dog is being used, as it must be as part of the activities of the police of other Crown body.

The appeal was allowed and the case remitted to the Crown Court for the proceedings to continue.

The Respondents had submitted at trial that their disruptive actions had been aimed at impeding traffic heading for the arms fair. The District Judge agreed and dismissed the charges on the grounds that their actions were protected under Articles 10 and 11 ECHR (Freedom of Expression and Freedom of Peaceful Assembly). He found that the action was peaceful; did not give rise to any disorder; did not involve any criminal offences; was carefully targeted; and was related to a “matter of general concern”, namely the sale of weapons. Under the proportionality test required by Articles 10 and 11 the prosecution had not proved that the defendants’ action was “unreasonable”.

On appeal the DPP argued that the Respondents’ use of the highway was unlawful, and so ECHR rights could not be engaged. Even if it was lawful, the public’s right to use the highway for free passage took priority. The District Judge also took insufficient account of the qualifications to the Convention rights set out in Article 10(2) and11(2) respectively, many of the factual reasons given in the case stated were flawed, and his conduct of the proportionality test was flawed.

The appellate court repeated the well-known principle that the right to Freedom of Expression is one of the essential foundations of a democratic society. This right goes beyond traditional ‘speech’ to encompass actions as well. Not all types of speech are equally protected. Article 10 is not a “trump card” entitling any political protestor to circumvent regulations relating to the use of highways, however, any interference with a protestor’s Article 10 rights must be shown to be proportionate.

The court held that the protest was done in exercise of Articles 10 and 11 rights and so was capable to giving rise to a “lawful excuse” under section 137. The public’s right to use the highway for the purpose of free passage could also not take automatic priority over the protestors’ ECHR rights. However, the District Judge erred in stating that the Respondents’ actions were carefully targeted and aimed only at obstructing vehicles going to the arms fair. They also completely obstructed the ability of other members of the public to go about their lawful business. Moreover, the fact that the protest lasted only around 90 minutes was because of the prompt intervention of the police. If the Respondents were exercising their lawful rights they should not have been arrested or removed. They might well have remained at the site for much longer.

The court agreed with the appellants that there was no “fair balance” struck between the rights of the individuals to protest and the general interest of the community, including the rights of other members of the public to pass along the highway. The appeal against the first to fourth Respondents was allowed, a conviction entered, and the case remitted for sentencing.

The appeal against the Fifth to Eighth Respondents was dismissed on procedural grounds. The DPP had not applied to the District Judge to state a case within the 21 day time limit set down by section 111(2) of the Magistrates’ Court Act 1980, and so the appellant court had no jurisdiction to entertain the appeals.

In March 2018 the Appellant was issued with a CPN of indefinite duration under section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) that ordered him not to enter a certain area of Reading Town Centre, attend within 100m of any McDonald’s restaurant in Reading, and not to be in a group of more than 3 individuals. The Appellant was notified of his right to appeal against the CPN within 21 days and set out the possible grounds of appeal under section 46 of the 2014 Act. He breached the conditions within five days by entering the prohibited area of Reading.

At trial an application of no case to answer was made on the basis that the prosecution had the burden of establishing that the CPN was valid, and had failed to do so. The CPN was clearly invalid because its indefinite duration, and the term preventing the Appellant from being in a group of three or more individuals wherever he might be, were unreasonable and disproportionate. The District Judge held that she had no jurisdiction to hear such a defence, that it should have been raised by way of a section 46 appeal, and that on the facts the Appellant had breached the terms of the order.

The appellant court noted that where a criminal charge is based on the breach of an underlying provision the invalidity of that provision is not necessarily a defence to the charge. A public law defence may not always be deployed in criminal proceedings. The question was whether Parliament intended the invalidity of the provision to be a defence to the criminal charge.

The court held that this was not the case. A CPN is specific to an individual and his behaviour and is carefully prescribed by section 43. There is a prior opportunity to challenge the CPN by way of a section 46 appeal. Section 43 also clearly contains an implied power for an authorised person, such as the police, to vary or discharge the CPN, which should be any person’s first port of call. If an affected person makes a request for the CPS to be varied or discharged, and is declined, then that refusal, made impliedly under section 43, can be challenged by way of judicial review within the usual time limits. The combination of the right of statutory appeal, coupled with the availability of judicial review, provided an effective means by which to challenge the CPN throughout its term. A challenge to the validity of a CPN is not open to a person at trial by way of defence.

The decision of the District Judge was upheld and the appeal dismissed. However, the court made clear the terms of the CPN in the appellant’s case were unreasonable, and that he should raise this with the Thames Valley Police and ask them to vary the CPN. If they wrongly refused to vary then judicial review would be available. Any CPN should be limited in time, and any authorised persons issuing a CPN should ensure that the prohibitions go no further than is necessary and proportionate.

He argued that MPs should be able to vote according to their personal views when the Brexit motion is debated on Tuesday, “to resolve things”, reiterating that he would have to consider his position if the government opted for a no deal withdrawal from the EU.

The full piece can be found here.

In a summary of responses to a consultation within the judiciary, master of the rolls Sir Terence Etherton and Lord Justice Coulson, deputy head of civil justice, said most civil judges expressed the ‘firm view’ that final hearings were not suitable for video hearings.

The full piece can be found here.

Family solicitors and courts may have to ‘cut corners’ and exceed time limits to prevent burnout from dealing with ‘sustained, remorseless and relentless’ pressure, the most senior family judge in England and Wales has warned.

More details can be found here.

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

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

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

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

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

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

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

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

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

Factual background

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

Submissions

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

Conclusion

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

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

The full piece can be found here.

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

The full piece can be found here.

The appellant, who suffered from a learning disability with associated memory deficiency, problems with articulation, and confusion, was convicted of an offence of sexual activity by a care worker with a person with a mental disability, contrary to s. 33 of the Sexual Offences Act 2003. The victim, who suffered from dementia and was doubly incontinent, sustained injuries including 6-8 cm vaginal tear, which it was the prosecution case was caused by the appellant. There was no direct evidence, but the prosecution relied heavily on a joint statement from the medical experts who agreed that the injuries were at least consistent with forceful penetration by a penis or penis-sized object, and the fact that there was no evidence that the victim had been injured before she was alone with the appellant in her room. The appellant, who was treated as a normally-functioning adult, gave evidence and was cross-examined. The appellant challenged his conviction on two grounds: (1) inadequate consideration had been given at trial to his learning disability; and (2) the joint statement by the experts on the victim’s injuries was flawed and of no real assistance to the jury, and, consequently, alternative explanations for those injuries were never properly explored.

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

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

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

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

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

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

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

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

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

Notification Requirements

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

Jurisdiction of the Court of Appeal (Criminal Division)

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

The appeal against sentence

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

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

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

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

The full piece can be read here.

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

The full piece can be read here.

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

The full piece can be read here.

Factual background

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

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

Discussion

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

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

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

Conclusion

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

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

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

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

Factual background

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

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

Discussion

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

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

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

Conclusion

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

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

The full piece can be found here.

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

More details can be found here.

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

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

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

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

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

The full piece can be read here.

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

The full piece is available here.

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

The full piece can be heard here.

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

The full piece can be read here.