This week’s Digest considers four judgments. The first three were handed down by the Court of Appeal (Criminal Division). The first addresses the mutual recognition of confiscation orders pursuant to the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014. The second is an appeal against sentence imposed for convictions for causing death by dangerous driving. The issue in the third was the effect of the invalidity of a court order on which criminal proceedings were based. The fourth judgment, handed down by the Divisional Court, concerns the dual criminality requirement in extradition. This week’s edition also contains a summary of the recent amendment to the Criminal Practice Directions 2015 which was issued on the 28 March 2019 and came into effect on the 1 April 2019.
Criminal Practice Directions 2015 Amendment No. 8 [2019] EWCA Crim 495
The full text of the amendment is available here. What follows is a summary of the key changes, which is available here.
- CPD I A.1 GENERAL MATTERS. This new paragraph encapsulates the status of the Criminal Procedure Rules and Criminal Practice Directions and has been included to help focus the minds of those appearing in the criminal courts as to the importance in adherence to the rules and practice directions.
- CPD III Custody and bail 14E: TRIALS IN ABSENCE. This amendment is to support the inclusion of a new practice direction (see below at 4.) and to ensure that the new section on trials in absence takes precedence over what was previously included at 14E.1
- CPD V Evidence 19A: EXPERT EVIDENCE. The inclusion of the three additional sections will assist the court and clarify to experts what they are obliged to disclose to the party instructing them about themselves, or any corporation or body with which the expert works as an employee or in any other capacity. The section goes on to offer guidance to the courts and the experts as to what may happen as a result of any disclosures that are forthcoming.
- CPD VI Trial 24B: IDENTIFICATION FOR THE COURT OF THE ISSUES IN THE CASE. This section has been updated to emphasise the purpose, and importance, of the summary by the prosecutor to effectively identify the relevant issues in the case, by requiring them to highlight any relevant case-law or legislation to that particular case. This will assist to support the context of the new directions in relation to trial adjournment in the magistrates’ court.
- CPD VI Trial 24C: TRIAL ADJOURNMENT IN MAGISTRATES’ COURTS. This new practice direction has been issued to provide an authoritative direction for the magistrates’ courts when dealing with applications to adjourn trial hearings, either on the day or trial itself, or prior to that hearing as an application to vacate. It consolidates the existing case law from the senior courts and provides comprehensive guidance to the courts and practitioners in dealing with these challenging decisions.
- CPD VI Trial 25B: TRIAL ADJOURNMENT IN THE CROWN COURT. These sections have been added to provide a more accurate statement of the current position in relation to trial adjournment in the Crown Court.
- CPD VII Sentencing I: IMPACT STATEMENTS FOR BUSINESSES. These amended sections have been updated to make clear that public sector bodies (hospitals, schools etc) are entitled to submit to court a statement, to be taken into account when determining sentence, by outlining the impact that the offending has had upon that institution.
- CPD XI Other proceedings 47A: INVESTIGATION ORDERS AND WARRANTS. These sections have been revised and updated to support the new direction that has been developed to deal with investigation orders in the Crown Court.
- CPD XI Other proceedings 47B: INVESTIGATION ORDERS AND WARRANTS IN THE CROWN COURT. This new direction marks a significant change in approach for some Crown Courts in the management of investigative orders, including production orders. Its purpose is to address and alleviate some of the operational practices that have developed in the management of these applications. The new sections should provide a consistent, national approach and ensure that there is a fairer geographical spread of the work.
- CPD XIII Listing. There are several amendments made to ensure that appeals from the youth court in relation to cases of sexual offending are dealt with by appropriately experienced judges
R v Moss [2019] EWCA Crim 501
The judgment, available here, was handed down by Lord Justice Davis on 26.03.19.
In this appeal, the Court held that the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 were to be read purposively so as to give effect to Framework Decision 2006/783 on the application of the principle of mutual recognition to confiscation orders. The Regulations could be applied to confiscation orders made before their coming into effect unless it would cause real unfairness to do so. Further, confiscation orders could extend to property which did not directly represent the proceeds of crime where the defendant had benefited from general criminal conduct.
In 2005, the Appellant pleaded guilty to a significant number of drug offences. The judge found that he had a criminal lifestyle and that the assumptions in s.10 of the Proceeds of Crime Act 2002 (“POCA”) were to be applied. The recoverable amount was assessed as £1,433,753 and a confiscation order was made in that sum. Among the assets listed in the order was a property in Spain, valued at £350,000. In 2018, the prosecution obtained a certificate to enforce the confiscation order over the Appellant’s Spanish property. The matter proceeded on the basis that it was not to be regarded as derived from criminality, as there was no evidence as to the date or circumstances of the Appellant’s purchase of that property. The Appellant appealed against a certificate issued under the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (“the Regulations”) for the enforcement of the confiscation order, submitting that (i) the Regulations did not apply to confiscation orders made before their coming into force and that the wording of Regulation11 was such that a certificate could only be issued at the time of the confiscation order itself and (ii) a certificate could only be issued in respect of property shown to represent the proceeds of crime.
The Court dismissed the appeal. Regarding the domestic statutory context, it was emphasised that a confiscation order made under the Act operated on a value basis. The recoverable amount could extend to assets available to the defendant which might have nothing to do with crime; the general scheme of the confiscation process operated in personam. However, the scheme had a wider, European context derived from Framework Decision 2006/783, which was implemented by the Regulations and which emphasised the principle of mutual recognition as the cornerstone of judicial co-operation with the EU. The Regulations were to be read purposively so as to give effect to the Framework Decision.
Regarding (i), the general presumption against retrospectivity of legislation was rooted in fairness. The focus of the Regulations, as of the Framework Decision itself, was on the recognition and execution of confiscation orders, not on the substantive making of such orders. That was a strong indication that they were designed to apply to confiscation orders made before, as well as after, the date on which they came into effect. Regulation 11(4) could be read so as to accommodate a confiscation order which was varied or amended so as subsequently to include a certificate. Moreover, if certification of a confiscation order made prior to the coming into force of the Regulations would cause real unfairness, then the court had a discretion whether or not to issue the certificate. Thus, the Regulations were to be read purposively so as to facilitate enforcement and the language of Regulation 11 was sufficient to make them applicable to confiscation orders previously made.
Regarding (ii), it was obvious from the wording and purpose of the Framework Decision that the whole scheme was designed to extend both to value confiscation and property confiscation systems. The available amount under POCA could include property which might have no taint of criminality, but where there was a link to the benefit obtained by the defendant through general or particular criminal conduct. A confiscation order for the recoverable amount was not to exceed the amount of the benefit. Accordingly, the Framework Decision respected value-based schemes. Since the Regulations gave effect to the Framework Decision, they were to be interpreted accordingly. Notwithstanding the terms of Regulation 11(2)(b)(ii), the “proceeds of an offence” was interpreted in Regulation 3(2)(c)(ii) as including any property equivalent to the value of property which represented the proceeds of an offence. For the purpose of seeking a certificate, the Crown was not required to engage in an evidential tracing exercise to show that a specified asset derived from criminal conduct.
R v Diamond [2019] EWCA Crim 506
The judgment, available here, was handed down by Lord Justice Flaux on 21.03.19.
This was an appeal against a sentence of 7 years’ imprisonment imposed on conviction for three counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving on the the judge (i) erred in selecting too high a starting point (ii) failed to take into account significant mitigating features. The appeal was dismissed; the judge was entitled to take the starting point he did to account for the totality of the offending and, in doing so, had properly considered the mitigation available to the Appellant.
The Appellant had been two pubs with two work colleagues and two children, aged 16 and 13. Blood-alcohol results showed that he had been drinking when, taking a corner too fast, the car struck the curb, tipped onto its nearside and collided roof first with a brick wall. Both of the Appellant’s colleagues and the 16-year-old girl died; the 13-year-old boy sustained severe head injuries. The Appellant pleaded guilty to three counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving. He was sentenced to 7 ½ years’ imprisonment on each of the counts of causing death by dangerous driving and 3 years’ imprisonment, to run concurrently, on the count of causing serious injury by dangerous driving. The judge also imposed a 7-year period of disqualification. He appealed against sentence on essentially two grounds: (i) the judge’s starting point of 10 years before credit was too high; and (ii) the judge failed to take into account significant mitigating features.
Both grounds were rejected and, accordingly, the appeal dismissed. In the Court’s view, the judge was entitled to take the starting point that he did and consider the seriousness of the offending as a whole, which included the significant aggravating feature that the Appellant had caused three deaths and that, given that they were passengers in his car, this was a case where he could anticipate the possible deaths of those passengers. Most importantly the judge also had to take account of the additional aggravating factor of the various serious injuries to the 13-year-old boy and on the basis that he was going to pass a concurrent sentence on that count, he was entitled to take a significantly higher starting point on the other death by dangerous driving counts to reflect the gravity of the offending in its entirety (see Attorney General’s Reference (R v Morrison) [2018] EWCA Crim 981). In doing so, the Court was further of the view that the judge had taken full account of the available mitigation.
However, the Court did find fault with the judge’s calculation of the period of disqualification, which failed to follow the guidelines provided in R v Needham [2016] EWCA Crim 455. Thus, although the overall period of disqualification remained unchanged, the discretionary period which should have been stated was 3 years and 3 months and the extension period under s. 35A of the Road Traffic Act 1998 3 years and 9 months.
R v Kirby [2019] EWCA Crim 321
The judgment, available here, was handed down by Lord Justice Singh on 21.02.19
The issue in this appeal was whether convictions which were based upon a non-molestation order that was wrongly issued by the High Court should be quashed. The Court held they should not: the High Court was a court of unlimited jurisdiction and, as such, an order of it was valid until set aside; the correct course, therefore, would have been to challenge the order itself by way of appeal or by application to set it aside.
Dan Pawson-Pounds appeared on behalf of the Crown.
The Appellant was the subject of non-molestation order (“the Order”) issued on 25 March 2014 by the High Court preventing him from visiting his mother’s address. On two occasions, on 3 November 2014 and 12 October 2015, the Appellant pleaded guilty to breaches of the Order and was sentenced on both occasions to a term of imprisonment. On a third occasion on which breach of the Order was alleged, the Crown conceded at the hearing that the Order was in fact invalid; it should not have been made as it was made ex parte on the application of Tower Hamlets, who were not “associated persons” as required by the Family Law Act 1996. As such, on that occasion, the Crown offered no evidence and the Appellant was released. The Appellant sought to challenge his previous two convictions for breach of the Order on a number of grounds, but principally on the basis that an order that was void ab initio could not be the subject of criminal proceedings.
The appeal was dismissed. The key point, in the Court’s view, was that the High Court was a court of unlimited jurisdiction; therefore the order had “to be treated as a perfectly valid order and one which has to be obeyed until it is set aside” (M v Home Office [1994] 1 AC 377, per Lord Woolf, at 423). Thus, the Court accepted the Crown’s position that the correct avenue for relief in such a case as this was to challenge the validity of the non-molestation order either by appeal or applying to have the order set aside, not to challenge the conviction.
Cleveland v Government of the United States of America [2019] EWHC 619 (Admin)
The judgment, available here, was handed down by Mr Justice Holgate on 18.03.19.
The issue in this appeal was whether the conduct alleged in the extradition request disclosed an extradition offence under the Extradition Act 2003. The Court dismissed the appeal; the particulars in the extradition request were sufficient to satisfy dual criminality for the mental element as well as the conduct element of murder as an accessory.
David Perry QC appeared on behalf of the Respondent.
An extradition request was made on 18 April 2017 by the United States of America for Ms Cleveland. The request related to 10 offences contained in an indictment issued in May 2015 and relating to a single incident on 14 February 2008. The indictment contained allegations of murder, aggravated assault, and possession of a firearm during the commission of a felony. The outcome of the appeal depended on the success of the appellant’s arguments in relation to the murder indictment, therefore, the Court did not address the other indictments separately.
The Court started from the position that it is not its function to evaluate the evidential sufficiency of the material put forward in the extradition request. It sufficed that the conduct alleged would be capable of satisfying the actus reus for aiding and abetting murder under UK law if proven by evidence. After conducting an analysis of authorities following Assange v Swedish Prosecution Authority, the Court considered that the “inevitable inference” test set out in paragraph 57 of Assange is aimed solely at preventing an individual being extradited and convicted in the requesting state on a basis which would not constitute an offence under English law. Where an essential ingredient under English criminal law is missing from the offence for which extradition is sought, a requirement for dual criminality is nonetheless satisfied if the court finds that that ingredient would be the inevitable corollary of proving the matters alleged to constitute the foreign offence. But the Court emphasised that there is no legal justification for applying the “inevitable inference” test more widely.
The Respondent’s case as stated in the request was that the Appellant was not merely present as a passenger in the car driven by the perpetrator, but was there as his accomplice in the active pursuit of the victim with an intention to kill him. The Appellant’s criticisms of the extradition request simply went to the level of evidential support for the allegations, rather than to the issue of whether the request identifies an offence known to English law. The inference of an intention to commit murder satisfying the requirements in R v Jogee is one which is capable of being drawn from the allegations set out in the extradition request. Whether that inference is established will be a matter for trial.
Police watchdogs to investigate forces over immigration referrals
Police watchdogs are to investigate forces in England and Wales over the sharing of data on victims and witnesses of crime with immigration enforcement authorities, the Guardian can reveal.
The full piece can be read here.
CPS under fire for delay in charging man accused of raping boy, 12
The Crown Prosecution Service has come under fire for waiting nearly a year and a half to charge a man accused of raping a 12-year-old boy despite him admitting to the crime.
The full piece can be read here.
European Parliament votes to ban single-use plastics
The European parliament has voted to ban single-use plastic cutlery, cotton buds, straws and stirrers as part of a sweeping law against plastic waste that despoils beaches and pollutes oceans.
The full piece can be read here.
