This edition of the digest considers one judgment of the Supreme Court, two of the Court of Appeal, and two of the High Court. In Sutherland v HM Advocate the Supreme Court held that there was no interference with an individual’s right to respect for his private life and correspondence under Article 8(1) of the European Convention on Human Rights (ECHR) by reason of the use in a public prosecution of evidence obtained by so-called “paedophile hunters”. In R v Cleland the Court of Appeal quashed a sentence of life detention for attempted murder imposed on a young offender and replaced it with a hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983. In A v Secretary of State for the Home Department the deportation of a foreign national on the ground that he was the head of an organised crime group (OCG) and represented a serious threat to public security was overturned by the Court of Appeal on the grounds given only in a closed judgment. In R (McKenzie) v Crown Court at Leeds the court held that a judge had not erred in extending the custody time limit (CTL) in relation to a defendant whose forthcoming trial had been delayed as a result of the COVID-19 pandemic. Finally, in Faerman v SFO the High Court considered an application to discharge a disclosure order made by Supperstone J pursuant to section 357 of the Proceeds of Crime Act 2002 (POCA).
Sutherland v HM Advocate
Judgment delivered on 15.07.20
The Supreme Court held that there was no interference with an individual’s right to respect for his private life and correspondence under Article 8(1) of the European Convention on Human Rights (ECHR) by reason of the use in a public prosecution of evidence obtained by so-called “paedophile hunters”. There was no incompatibility between the obligation on the state to protect rights arising under Article 8 and the prosecution’s use of evidence supplied by such groups.
Duncan Atkinson QC represented the Director of Public Prosecutions, who was granted leave to intervene.
A member of a so-called “paedophile hunter” group created a fake profile on a dating application, using the photograph of a 13 year old boy to do so. The appellant entered into correspondence with the “boy”. He sent him a picture of his erect penis and arranged to meet with him. At the rendezvous, he was confronted by members of the group and the police were called. Copies of his communications with the “boy” were provided to the police and the appellant was charged with attempting to commit various child sex offences. The evidence was admitted at trial, and the appellant was convicted on each charge.
It was submitted on behalf of the appellant that (i) his rights under Article 8(1) of the ECHR were interfered with by the use of communications between a defendant and a “paedophile hunter” group as evidence in a public prosecution and (ii) the extent to which the obligation on the state to provide adequate protection for Article 8 rights was incompatible with the use by a public prosecutor of material supplied by “paedophile hunter” groups in investigating and prosecuting crime.
Dismissing the appeal, the Supreme Court held that there had been no interference with the appellant’s Article 8 rights for two reasons. First, the nature of the communications from the appellant to the “boy” was not such as to make them worthy of respect for the purposes of the ECHR. Contracting parties to the ECHR have a responsibility to protect children against sexual exploitation by adults. Having enacted protection for children by way of the criminal law, the Scottish Parliament had a positive obligation under Article 8 to ensure effective enforcement of the law as contained in those provisions. In the appellant’s case, in the absence of any question of state surveillance or interception of communications, and where all that was in issue was the balance of the interests of a person engaging in such conduct and of the children who were the recipients of the relevant communications, the reprehensible nature of the communications meant that they did not attract protection under Article 8(1). This was because they did not involve the expression of an aspect of private life or correspondence which was capable of respect within the scheme of values which the ECHR existed to protect and promote. Article 8 required protection to be accorded to fundamental values and essential aspects of private life in relation to children, who were recognised as vulnerable individuals. The interests of children in such a field had priority over any interest which a paedophile could have in being allowed to engage in the conduct which had been criminalised. The court held that Article 17 of the ECHR, which prohibited the abuse of rights, supported this conclusion.
Secondly, the question of whether a reasonable expectation of privacy existed in relation to a particular matter was an objective one. The appellant’s communications were sent directly to the “boy”, a private individual. Their contents were not a matter in relation to which the recipient could be thought to owe the appellant any obligation of confidentiality. There was no prior relationship between them from which an expectation of privacy might arise. Exhortations by the appellant that the “boy” should keep their communications private did not establish a relationship of confidentiality. Further, the appellant believed that he was communicating with a child of an age in relation to whom it was foreseeable that he might share any worrying communications he received with an adult. The appellant might have enjoyed a reasonable expectation of privacy in relation to his communications for the purposes of Article 8(1) so far as concerned the possibility of police surveillance or intrusion by the wider public, but he had no reasonable expectation of privacy in relation to the recipient. Once evidence of the messages had been passed to the police by the “paedophile hunter” group, the appellant had no reasonable expectation that the police or the public prosecutor should treat them as confidential, or refrain from using them to investigate whether a crime had been committed or bring a prosecution. On the contrary, they were bound to do so in order to safeguard children. The appellant had no reasonable expectation of privacy in relation to the communications, with the result that he enjoyed no relevant protection under Article 8(1) as regarded their disclosure to and use by the public prosecutor.
Finally, the court observed that because Article 8(1) was inapplicable, positive obligations did not arise. Even if Article 8(1) were to apply, the court held that the state had no supervening positive obligation arising from Article 8 to protect the appellant’s interests which would impede the prosecutor in any way from making use of the evidence about his communications with the “boy” to investigate or prosecute in respect of the crimes he was alleged to have committed. On the contrary, the relevant positive obligation on the public prosecutor was to ensure that the criminal law could be applied effectively so as to deter sexual offences against children.
R v Cleland
Judgment delivered on 16.07.20
The Court of Appeal quashed a sentence of life detention for attempted murder imposed on a young offender and replaced it with a hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983. The court did so after admitting fresh evidence demonstrating that, at the time of the offence, the offender had been suffering from autistic spectrum disorder which was linked to the offence and which reduced his culpability.
Louis Mably QC represented the Crown Prosecution Service.
The appellant, who was 16 at the time of the offence, became infatuated with his 12 year old victim, sending her various messages. The girl did not reciprocate his affection. The appellant indicated to Childline that he wanted to rape the victim because her life was too good and he wanted to “balance things out”. The appellant sent further messages to the victim, threatening suicide, and eventually she agreed to meet him. The appellant arrived at the meeting wearing latex gloves. He knocked the victim to the ground and tried to stab her with a penknife, causing only superficial wounds. He threatened to rape and kill her. He then tried to strangle her. The appellant left the scene when a member of the public intervened. The pre-sentence report indicated that the appellant might have an emerging psychopathic disorder, but no evidence was found of mental illness or traits sufficient to meet the diagnostic criteria for autistic spectrum disorder (ASD). The judge found that the appellant had wanted to punish his victim, who he blamed for his unhappiness. He had showed no remorse, and expressed regret that he had not succeeded in killing her. Although the victim’s physical injuries were slight, she would suffer lasting psychological harm. The judge said that the case was one of exceedingly high culpability and very real harm. The appellant’s mental health deteriorated post-sentence and he was diagnosed with ASD. It was said that the failure to reach that diagnosis earlier was due to the unavailability of the full history. The joint experts concluded that there was a direct causal link between the ASD and the offence, although ASD was not the sole cause, and that the appellant required hospital treatment.
Allowing the appeal, the court admitted the fresh evidence of the appellant’s mental disorder. The court observed that section 11(3) of the Criminal Appeal Act 1968 enabled the court to consider whether the appellant “should be sentenced differently”, which permitted it to make a hospital order even though there was no evidence before the sentencing judge on which such an order could have been made. When considering whether to make an order under sections 37 and 41 of the 1983 Act, the court had to consider all the evidence in the case and not feel circumscribed by the psychiatric opinions. Having regard to the factors identified in Vowles  EWCA Crim 45, the appellant would continue to need treatment for ASD throughout his life. His offending was significantly, although not wholly, attributable to the ASD. The level of his culpability was not as high as the sentencing judge had found, but he did retain a significant level of responsibility for his actions. The crime was premeditated and called for punishment, even in the case of a young offender suffering from a mental disorder. In terms of punishment, as almost the whole of the minimum term imposed by the judge had passed, the punishment element of the appellant’s sentence carried little weight. Turning to public protection, treatment for the appellant’s disorder was available, although there was no “cure”. He could be assisted in managing his condition and controlling his behaviour, but he would always present a risk of aggression, particularly towards women. The imposition of a life sentence was not a bar to appropriate medical treatment. The appellant would not be released until the risk he posed to others could be safely managed in the community. Furthermore, a transfer from hospital to adult prison might have an adverse effect on the appellant’s treatment. Whatever regime was in place, the appellant would remain in hospital for a considerable period. Once he was regarded as suitable for discharge from hospital, the sections 37 and 41 regime would result in better monitoring and increase the prospect of an early identification of a potential increase in risk. The principal risk against which it was necessary to guard was the risk of further violent behaviour linked to the ASD. The court concluded that the public interest was best served by the appellant continuing to receive expert treatment to reduce that risk.
A v Secretary of State for the Home Department
Judgment delivered on 09.07.20
The deportation of a foreign national on the ground that he was the head of an organised crime group (OCG) and represented a serious threat to public security was overturned by the Court of Appeal on the grounds given only in a closed judgment. The case was remitted to the Upper Tribunal for a re-hearing.
Will Hays represented the Secretary of State for the Home Department.
The appellant was the spouse of a foreign national and an EEA national resident in the UK. He had acquired a permanent right of residence pursuant to regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. The Secretary of State ordered his deportation on the ground that he was the head of an OCG and that his removal would be in accordance with regulation 21(5). There was an open judgment for those issues that could be dealt with without harm to the public interest in the protection of confidentiality and a separate closed judgment dealing with the remainder. It was submitted on behalf of the appellant that the confidential matters had been dealt with unfairly, that the Upper Tribunal’s approach to the question of whether he was head of an OCG as alleged was irrational, and that it had incorrectly concluded that the requirements of regulation 21(5) were satisfied.
The Court of Appeal held that the Upper Tribunal had determined that the OCG had existed in the past and that the appellant was head of it. This was based on evidence derived largely from covert surveillance. The Upper Tribunal further held that even if the OCG was no longer operative, the appellant continued to have the capacity to revive it and, as its head, he represented a serious threat to public policy or public security. For reasons given only in the closed judgment, the appeal succeeded and the case was remitted to the Upper Tribunal for re-hearing.
In the open judgment, the court held that the Upper Tribunal had conducted a classic evaluation of the circumstantial evidence, assessed its consistency with the proposition that the appellant was the head of the OCG, and found that the evidence warranted that conclusion. It had not engaged in impermissible speculation, nor made adverse findings when on the balance of probabilities an alternative explanation was possible. The appellant argued that his “ability” to revive the OCG was insufficient without a finding of propensity. Before the Upper Tribunal, however, it had conceded on behalf of the appellant that the risk would be present, not only if he was head of the OCG as it existed, but also if he had the ability to revive it. The court stated that this explained why the Upper Tribunal had found it unnecessary to make a finding one way or the other as to whether the OCG still existed, and why it considered it sufficient to find that the OCG had existed in the past and that the appellant had the ability to revive it. In the light of that concession, the findings were dispositive of the issue of present threat and the Upper Tribunal could not be said to have erred in law by proceeding on that basis.
R (McKenzie) v Crown Court at Leeds
Judgment delivered on 15.07.20
The court held that a judge had not erred in extending the custody time limit (CTL) in relation to a defendant whose forthcoming trial had been delayed as a result of the COVID-19 pandemic. The court also held that the decision of the Lord Chief Justice to suspend jury trials was not ultra vires.
Melanie Cumberland represented the Lord Chancellor and the Lord Chief Justice of England and Wales, the first and third interested parties.
The claimant was on remand awaiting trial for various serious offences, including attempted murder. His trial was scheduled to commence on 27 April 2020. However, on 23 March 2020, the Lord Chief Justice announced that jury trials would be suspended due to the COVID-19 pandemic. On 27 March 2020, the “Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates and the Crown Court” was promulgated, setting out a temporary framework for the efficient and expeditious handling of cases which involved a CTL. The claimant’s CTL was due to expire on 1 June 2020. On 4 May 2020, the judge extended the claimant’s CTL to expire on 1 July 2020. He fixed a date for review on 30 June and set a provisional trial date of 23 October 2020. It was submitted on behalf of the claimant that (1) the Lord Chief Justice’s decision to suspend jury trials was ultra vires because it curtailed a fundamental constitutional right which could only be curtailed on a blanket basis by primary legislation; (2) the suspension of jury trials for an indefinite period could not amount to a “good and sufficient cause” for the purposes of section 22(3) of the Prosecution of Offences Act 1985 to extend the claimant’s CTL; and (3) the protocol was unlawful because it subverted the statutory scheme, and/or placed an unlawful fetter on any judge hearing an application to extend a defendant’s CTL.
The court held that the Lord Chief Justice’s decision was lawful. It was limited to the listing of jury trials, on a temporary basis, in respect of the period when it was unsafe for them to continue. The position adopted by the claimant was unrealistic. His trial could not have taken place any sooner without exposing all persons concerned to unacceptable health risks. Furthermore, it could not be said that the claimant’s right to a jury trial had been circumscribed as a result of its suspension for an indefinite period. His constitutional right of access to the courts had not been curtailed and his right to trial by jury remained extant; his trial had just been adjourned in order to protect the safety of all concerned. The listing of jury trials was being kept under continuous review and steps had already been taken to recommence trials as soon as safely possible. In terms of whether there was a “good and sufficient cause” the reason the judge extended the CTL in respect of the claimant was because the “safety of all concerned within the trial process” could “not, at present” be “secured to the satisfaction of HMCTS, PHE and the judiciary”. The trial had to be adjourned from its planned date for obvious and pressing reasons. It was fanciful to suggest that it was not the pandemic that led to that decision. Furthermore, it was clear from the express terms of the judgment that the judge’s reasoning did not depend on the decision by the Lord Chief Justice or any other person. He considered the very specific situation that he was deciding, namely whether the trial of the defendant in Leeds could proceed at that time. He exercised his discretion carefully by ensuring that there was a review date set in the not too distant future, with a provisional trial date designated “to secure the defendant’s position so far as I am able”. Finally the protocol did not fetter the judge’s discretion and the suggestion that it was unlawful because it subverted the statutory scheme was characterised as being without foundation. The judge had noted the nature of the protocol and its express terms. He did not act in a way that could be suggested to involve him considering his discretion fettered or dictated in terms of the outcome by the protocol. The protocol was, in any event, careful not to preclude individual case considerations.
Faerman v SFO
Judgment delivered on 10.07.20
The High Court considered an application to discharge a disclosure order made by Supperstone J pursuant to section 357 of the Proceeds of Crime Act 2002 (POCA).
As part of a civil recovery investigation centred on a London property belonging to the respondent, the SFO sought a disclosure order and a property freezing order. The disclosure order named Mr Faerman as the respondent. The disclosure order was sought with the aim of completing the tracing exercise between the commission payments paid to the respondent via his various connected companies and the funds used to purchase the property. The notice was served on the respondent’s solicitors and included a penal notice. At the material time, the respondent was believed by the SFO to be in custody in Brazil. When making the application for the order, the SFO failed to bring to the court’s attention the judgment of the Supreme Court in Serious Organised Crime Agency v Perry  UKSC 35. The respondent’s solicitors made representations to the SFO, which led to the order being withdrawn and replaced with a letter requesting the voluntary disclosure of the information sought.
It was submitted on behalf of the respondent that, as a result of Perry, section 357 of POCA conferred no authority to issue information notices on individuals outside the jurisdiction. It was implicit in that judgment that any disclosure should be tailored to the individual case and should not infringe territorial limits. Had the SFO brought the judgment in Perry to the attention of Supperstone J, it was highly unlikely that any disclosure order would have been granted. Section 358 of POCA sets out the requirements which must be met before a disclosure order is made. Subsection (3) requires there to be “reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.” As no information notice could be served on the respondent the SFO could not show that any information which may have been provided would have been “likely to be of substantial value” to the investigation. The proceedings were tainted by the SFO’s failure to disclose the judgment as the court was presented with an inaccurate impression of the strength of their case. The way in which the SFO should have proceeded to obtain the information they wanted in the civil recovery investigation in this case was by way of mutual legal assistance. Furthermore, the disclosure order should not have contained a penal notice. The only named respondent was Mr Faerman. As the respondent was outside the jurisdiction, he was not in peril of committing any offences. This was said to render the document bad on its face and flawed for want of authority. By July 2019 the SFO must have realised, if they had not before, that they had no authority under the disclosure order to give an information notice to the respondent as he was outside of the jurisdiction. This was apparent from the disclosure order, redacted to remove the penal notice at its head, served on his solicitors under cover of the letter dated 25th July 2019. This should never have been sent. Even with the penal notice redacted, it was grossly misleading with its mandatory terms requiring compliance. It was not until November 2019 that the SFO responded to the solicitors’ request to withdraw the notice accepting that they could not enforce compliance but were seeking the information on a voluntary basis. It was submitted that at least by this point the correct course would have been to return to the High Court for a variation of the disclosure order. The disclosure order was ultra vires and should not have been made in the terms granted.
On behalf of the SFO it was submitted that that the respondent fundamentally misunderstood the ratio in Perry. There was nothing in any judgment of the court regarding the making of a disclosure order where the target of the investigation is outside the jurisdiction. The judgment in Perry did not make the disclosure order itself invalid in such circumstances. Perry is authority for the proposition that a disclosure or information notice issued under a disclosure order may not be served outside of the jurisdiction. The disclosure order in Perry itself named Mr Perry and his family as respondents when they were known to be overseas yet it was only the disclosure notices and not the disclosure order that the court set aside by way of remedy. The conclusions that Mr Faerman sought to draw from the fact that he was the sole named respondent to the application for a disclosure order were misplaced. Section 357(3)(b) of POCA requires the person who is the subject of the investigation to be specified in the application for a disclosure order. Once the order is granted section 357(4) authorises the appropriate officer to serve a disclosure notice on any person he or she considers has the relevant information. That power is not limited to the persons listed as respondents to the disclosure application. Although paragraph 15 of the Practice Direction – Civil Recovery Proceedings (“the Practice Direction”) states that an application for a disclosure order should normally name as respondents those persons on whom the appropriate officer intends to serve notices, this was no longer good practice for the following reasons:
i) Disclosure orders are continuing orders which may exist for a lengthy period of time. Naming the potential recipients of disclosure notices as respondents at the point of obtaining the disclosure order is generally neither possible nor practicable.
ii) Including proposed recipients of disclosure notices if they are known at the time of the original application is generally considered to imply complicity in the behaviour being investigated, which is both inaccurate and unfair to the recipients of any notice who are often entirely innocent third parties.
iii) Where initially proposed recipients of disclosure notices are listed as respondents to the disclosure order there is the possibility of such third parties being interfered with by the target upon him or her becoming aware of their identity.
Accordingly, it was submitted that the current general practice is not to include potential recipients of disclosure notices as named respondents to the disclosure order application. Accordingly, the fact that the respondent was the only named respondent to the disclosure order had no bearing upon and in no way limited the recipients of disclosure notices. The failure to bring Perry to the attention of the court was unintentional and did not taint the application.
The court held that on the face of the documentation and the representations made to Supperstone J, the requirements in section 358 of POCA were met and it was appropriate to make the order sought. Turning to Perry, the court stated that the ratio of the judgment could be identified in paragraph 94:
“Section 357, read with section 359 , does not simply make proscribed conduct a criminal offence. It confers on a United Kingdom public authority the power to impose on persons positive obligations to provide information subject to criminal sanction in the event of non-compliance. To confer such authority in respect of persons outside the jurisdiction would be a particularly startling breach of international law. For this reason alone, I consider it implicit that the authority given under section 357 can only be exercised in respect of persons who are within the jurisdiction.”
The “authority” described must relate to that given under section 357(4) to issue an information notice. Thus, the judgment in Perry is authority for the proposition that no information notice can be issued pursuant to a disclosure order to those outside of the jurisdiction.
Had the sole purpose of the disclosure order been to obtain information from the respondent while he was overseas, the court accepted that this would have been impermissible. However, there was in the court’s view no evidential basis for this assertion. Rather it was supposition arising from the fact that the SFO had already sought production orders some years previously in relation to the respondent’s bank accounts through which the money used for the purchase of the property flowed and in relation to the conveyancing solicitors used by the respondent to purchase it. The court accepted the submissions of the SFO in this regard that the existence of the production orders did not indicate that all domestic sources had been exhausted. The application for the disclosure order made clear that organisations and people, other than the respondent, were likely recipients of information notices. It was made clear to Supperstone J during the hearing that the SFO were interested in possible funds other than the individual property as well as those used to purchase it. The order itself was addressed to the respondent “or any person served with a notice under this order”. The court was told that since the making of the order the SFO had served and obtained information pursuant to a number of disclosure notices on persons within the jurisdiction, all of which has assisted in the provenance of funds used to purchase the property in question.
In terms of the penal notice, the Supreme Court did not state in Perry that the effect of the penal notice was to render the disclosure order itself invalid. The court therefore concluded that the presence of the penal notice did not render the disclosure notice itself invalid. The judge was entitled to make it. Whilst the judgment of the Supreme Court in Perry should have been brought to Supperstone J’s attention, the court was unpersuaded that such would have resulted in a refusal of the application. The judge may have underlined that no information notice could or should be served on the respondent whilst he remained outside the UK but the order would still properly have been made.
The court rejected the submission that by redacting the penal notice on the disclosure order the SFO complied with the decision in Perry. There was nothing in the judgment itself which suggests an information notice can be issued against those outside the jurisdiction so long as the penal notice is removed. The judgment in Perry makes clear that the power to issue an information notice comes solely and exclusively from the authority provided in section 357. Its very purpose is to be supported by the criminal sanction within section 359(1). Paragraph 94 of the judgment makes clear that an information notice is mandatory. In those circumstances the court stated that it was difficult to see how an unenforceable information notice could properly be served under a redacted disclosure order. Neither KBR nor Jiminez assisted the SFO in this regard as they dealt with different provisions and in each case the court distinguished Perry in robust terms. It followed, said the court, that the SFO had no power to issue an information notice against the respondent whilst he was in Brazil and none should have been served upon his solicitors. The inclusion of the redacted disclosure order could not remedy the situation. The service of those documents on the respondent’s solicitors within the jurisdiction was also no answer to Perry. Paragraph 94 of Perry states that the power to issue an information notice “can only be exercised in respect of persons who are within the jurisdiction”. The notice was not being issued in relation to the respondent’s solicitors. They were not being required to provide the information sought. It was directed to respondent who was in Brazil. It should not have been issued.
The court agreed with the SFO that in many respects the efficacy of the information notice and redacted penal notice was “somewhat moot”. It also agreed that the remedy for the wrongful service of the information notice would have been a declaration that the disclosure order did not authorise the information notice to be served on the respondent’s solicitors. All that reliance on Perry would have achieved – the dismissal of the disclosure notice – has already therefore occurred.
Drawing the threads together, the court concluded that the order should not be discharged:
i) The court accepted that had the judgment in Perry been disclosed the application would nonetheless have been granted. The result would have been a clarification that no information notice could be served on the respondent outside the jurisdiction. It would not have undermined the merits of the application for and decision to grant the order sought.
ii) The SFO did not act in bad faith.
iii) There had been no prejudice to the respondent
iv) There was a clear and compelling public interest in maintaining the disclosure order. The respondent did not challenge the merits of the SFO’s suspicion concerning the legality of the funds used to purchase the property.
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