This week’s Digest considers four judgments: two from the Court of Appeal and two from the Divisional Court. In the first, the court considered an appeal against a manslaughter conviction where the defendant gave no evidence yet had his defence statement read to the jury. In the second, the issue was whether a Public Spaces Protection Order (PSPO) made pursuant to s. 59(2)(a) of the Anti-Social Behaviour, Crime and Policing Act 2014 (ABCPA 2014) which had prohibited, amongst other things, abortion related protest outside a centre that had provided family planning services, including abortion services, was lawful. In R (Office W80) v IOPC in the Divisional Court, a specialist firearms officer challenged the decision of the Independent Office for Police Conduct to bring misconduct proceedings against him after a fatal shooting in north London. In MR v Commissioner of Police for the Metropolis the Court considered whether the appellant, who was awarded damages for false imprisonment and assault, was also entitled to costs.
R v Duarte & anor [2019] EWCA Crim 1466
The judgment, available here, was handed down by Holroyde LJ on 16 August 2019.
An appeal against conviction turned on whether the prosecution could seek to adduce all or part of the contents of a defence statement where the defendant was not going to give evidence. The Court held that while the prosecution could indeed do so, this was only possible where showing the jury the statement would help resolve a matter in issue at the trial. Despite the material irregularity, the conviction was nonetheless safe. The other defendant’s application for leave to appeal against sentence was allowed, on the basis that the sentencing judge had given insufficient weight to certain mitigating factors.
Mr Yakymchuk and Mr Duarte were part of a group of six people harassing other people in Stratford Centre shopping mall. Over the course of five minutes Mr Pieknyi and his friend were attacked by the group with kicks, punches, and by the throwing of a bicycle. Mr Yakymchuk cornered Mr Pieknyi and stabbed him to death in the chest. Mr Yakymchuk pleaded guilty to his murder and was sentenced to life imprisonment with a minimum term of 24 years. He appealed against his sentence. Mr Duarte was convicted of manslaughter for which he was sentenced to 12 years in a YOI. He appealed against his conviction.
The Court began by considering Mr Duarte’s appeal. He had confronted the deceased’s friend in a very aggressive manner and it was he who threw the bike at the deceased. Later, after Mr Yakymchuk had pulled out the knife and the deceased was attempting to escape, Mr Duarte was standing close to him in an aggressive posture with fists clenched. Mr Duarte did not call or give evidence at trial. His ground of appeal was that the trial judge had incorrectly allowed the prosecution to adduce evidence suggesting that he was putting forward a different defence (that he had played no part in the unlawful violence) to that at the time of his defence statement (that the identification of him in the shopping mall was flawed).
The Court held that the prosecution were allowed to invite the jury to draw an adverse inference even though the defendant had not given evidence. However, the judge erred in allowing the prosecution to put the defence statement before the jury; the case was already perfectly clear and seeing the defence statement would not help the jury resolve the issue in the case, namely whether Mr Duarte was involved in unlawful violence. However, notwithstanding this material irregularity, Mr Duarte’s conviction could not be said to be unsafe. The evidence before the jury strongly supported Mr Duarte’s guilt.
Turning to Mr Yakymchuk, the Court held that while there was clearly an intention to cause really serious harm, the sentencing judge had not given enough weight to mitigating factors such as Mr Yakymchuk’s age, his expressions of remorse, the fact that he was sleeping rough, and that he was carrying the knife for his protection. Considering these, the aggravating and mitigating factors should have been treated as equally balanced, so that after taking them into account the appropriate minimum term should be 25 years before giving credit for an early guilty plea. This term should then have been reduced by three years. Leave to appeal was granted and the appeal allowed. The minimum term of 24 years was quashed and replaced by a minimum term of 22 years.
Dulgheriu and another v Ealing London Borough Council [2019] EWCA Civ 1490
The judgment, available here, was handed down by Mr Justice Turner on 21 August 2019.
The Court of Appeal held that the judge had been correct to dismiss the action of the appellants, who were affiliated to a Christian group, challenging a Public Spaces Protection Order (PSPO) made pursuant to s 59(2)(a) of the Anti-Social Behaviour, Crime and Policing Act 2014 (ABCPA 2014) which had prohibited, amongst other things, abortion related protest outside a centre that had provided family planning services, including abortion services.
The appellants were affiliated to a Christian group (GCN). Members of GCN and other pro-life campaigners had, for a number of years, congregated immediately outside the Marie Stopes UK West London Centre (the Centre), which provided family planning services, including abortion services. The activities of the members of GCN included attempts to engage in dialogue with users entering the centre in an attempt to dissuade them from having an abortion, handing out leaflets and displaying posters. Pro-choice activists also began frequent protests against the aims and methods of the anti-abortion protectors outside the Centre. The respondent local authority (the authority) made a Public Spaces Protection Order (PSPO) prohibiting, amongst other things, abortion related protest within a substantial safe zone surrounding the Centre save as to limited protest within a designated area away from the entrance to the Centre.
The appeal was dismissed. The Court held that the defendant local authority and the judge had been correct to interpret the expression ‘those in the locality’ in ABCPA 2014 s 52(2)(a) as capable of embracing occasional visitors, and had been entitled to decide on the facts that the women, their family members and supporters visiting the Centre, in addition to staff and local residents, fell within that section.
Further, the judge had been entitled to find that the rights under Art 8 European Convention on Human Rights (the Convention) of the service users visiting the centre, both from the perspective of the right of autonomy on the part of the service users in wishing to carry through their decision to have an abortion, and from the reasonable desire and legitimate expectation that their visits to the Centre would not receive any more publicity than was inevitably involved in accessing and leaving the Centre across a public space and highway, had outweighed the arts 9, 10 and 11 Convention rights of the appellants. A PSPO had been necessary to strike a fair balance between, on the one had, protecting those important interests of the service users and, on the other hand, the rights of the protestors. For the authority not to have made an order would not have struck a fair balance between those competing interests.
R (Officer W80) v IOPC [2019] EWHC 2215 (Admin)
The judgment of Flaux LJ, dated 14 August 2019, is available here.
The case turned on whether, in a situation where a police officer had shot a member of the public dead, that officer’s claim of self-defence to a charge of gross misconduct could be grounded in his honest belief that his life was in imminent danger (the criminal test), or whether that belief also had to be reasonable (the civil test). The Court held that while any such belief did not have to be reasonable as a self-standing limb of the test of self-defence in misconduct proceedings, the reasonableness of the belief would go to whether it was indeed honestly held. The correct test was therefore the criminal one. On the facts, the Independent Office of Police Conduct (“IOPC”) had applied the wrong test, and the claim succeeded.
In October 2015 Mr Eren was arrested in possession of a loaded semi-automatic handgun. He pleaded guilty to firearms offences. The police had intelligence that Mr Baker and his accomplices, also in possession of firearms, planned to snatch Mr Eren from custody on Mr Eren’s way from prison to the Crown Court. On that day Mr Baker was sitting in the front passenger seat of a car parked close to the court building. The claimant approached the car, shouting orders to its occupants but unable to see them, and opened the car doors. Despite instructions to put his hands on the dashboard, Mr Baker moved quickly to his shoulder bag, whereupon the claimant shot him dead. All officers present said that they believed that the men in the car did have firearms and the intent to use them. The IOPC’s predecessor, the Independent Police Complaints Commission (“IPCC”), opened a murder investigation. No criminal proceedings were brought but the resulting Report concluded that the claimant had a case to answer for gross misconduct. The IOPC duly directed the Metropolitan Police Service (“MPS”) to bring disciplinary proceedings against the claimant, maintaining that the force used by the claimant was not necessary or proportionate. The claimant challenged this direction by way of judicial review.
The first ground of challenge turned on whether the reasonableness of the claimant’s belief was material to his self-defence. The IOPC submitted that the claimant’s belief must not only be honest but also objectively reasonable for self-defence to be available (the civil test). The claimant, supported by the MPS, contended that an honest, albeit mistaken, belief was sufficient (the criminal test). The claimant grounded this submission in the College of Policing’s Code of Ethics, 2014 Home Office Guidance, and the Police (Conduct) Regulations. The IOPC, supported by Mr Baker’s family, noted that “public confidence in policing may not be maintained if officers who use legal force on the basis of unreasonable mistakes cannot be dismissed as a result of doing so”. The claimant argued on a second ground that even if the civil test was the correct test, it was irrationally applied on the facts.
The Court declined to categorise police misconduct proceedings as either criminal or civil in nature. However, the wording of the Code of Ethics at para [4.4] in particular did mean that an officer’s honestly held belief at the time was relevant to any misconduct proceedings. This criminal test could not be wrong in law as both primary and secondary legislation were silent as to which test should be applied. Further, this criminal test would not thwart the purpose of police misconduct proceedings, both as the second limb of the test required the force used to be reasonable in all the circumstances, and because the reasonableness or unreasonableness of any belief was a relevant consideration in assessing whether that belief was honestly held. The IOPC had therefore applied the incorrect test. Its decision was quashed.
MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB)
The judgment, available here, was handed down by Mrs Justice McGowan on 21 August 2019.
Mrs Justice McGowan allowed an appeal as to costs relating to Part 36. She held that the trial judge had erred in making no order for costs in a case where the claimant had made a valid Part 36 offer to settle for no damages but with an admission of liability. The Appellant was entitled to costs, and the relevant enhancements, from the relevant date following the Part 36 offer.
The Appellant, a well known individual in international financial circles, had been granted anonymity in the proceedings. The Appellant had been arrested on suspicion of having committed an offence of harassment but was released without charge. He subsequently issued a claim for false imprisonment and assault. The Appellant and the Respondent went back and forth and both made Part 36 offers of settlement under the Civil Procedure Rules (CPR). Following a trial on 26 June 2018 the Appellant was awarded damages of £2,750. On 14 September 2018 the Her Honour Judge Baucher heard arguments and made no order as to costs.
The appeal succeeded in respect of the costs incurred after the expiry of the relevant period and the appellant is entitled to his reasonable costs on an indemnity basis, and the other entitlements set out in CPR Part 36.17(4) from that date, to be assessed, if not agreed.
The Court considered that, as a matter of principle, the implications of costs should never overwhelm the issue at the centre of litigation. This Appellant wanted to ‘clear his name’, the Judge found that to achieve that aim he had to pursue the litigation to trial. At trial, he was vindicated and the Judge described him as the ‘successful party’. In addition, he won limited financial compensation, even though it was less than a previous offer made by the Respondent.
In the protracted course of the litigation the Appellant made an offer to forgo any financial remedy, if he could obtain the admission as to liability he sought, further that he would accept a reasonable order for costs by agreement or assessment, if agreement was not possible. The Court remarked that giving up any and all claim to a financial remedy is a significant concession and therefore is a genuine Part 36 offer. That offer did engage the provisions of CPR 36.17 and accordingly does mean that the Appellant is entitled to his costs from the expiry of the relevant period, 14 August 2017. It is not unjust to apply CPR 36.17 in that way and to follow its provisions in the usual way. It would be unjust not to do so.
OTHER NEWS
Prosecutions in England and Wales fall to record low
Criminals will be “rubbing their hands with glee” because of their slim chances of prosecution, the Bar Council has said.
Quarterly figures released by the Ministry of Justice revealed that the number of people being prosecuted or handed out-of-court disposals has fallen to its lowest level since records began, despite a rise in crime.
More details can be found here and here.
Police forces halt trials of facial recognition systems
Kent Police and West Midlands Police were named by ministers in June as collaborating with the Home Office to trial the technology to trace “missing and vulnerable persons”, but have since stated they are no longer participating in the trials and have no plans to do so.
More details can be found here.
Police Scotland spend £7 million on Brexit contingency planning
The figure has been released in a Brexit contingency planning report due to be discussed by the Scottish Police Authority (SPA) this week.
It also states that civil unrest is one of the biggest potential issues facing policing post-Brexit.
The full story can be found here.
Trafficked Vietnamese woman wins compensation for unlawful detention at Heathrow Airport
Following an internal investigation into the way in which a pregnant trafficked woman was treated after arriving at Heathrow airport whilst having a miscarriage, the Home Office has identified “significant failings” and made a compensation payment of £50,000. The Home Office accepted that the woman, who was unable to stand unaided, was unlawfully detained despite doctors advising that she should stay in hospital overnight.
The full piece can be read here.
First prosecution for spitting at a police officer has failed
The first prosecution for spitting at a police officer under the Assaults on Emergency Workers (Offences) Act 2018 has failed after the Crown Prosecution Service (CPS) ruled it was not in the public interest because psychiatric reports suggested that the 52-year-old attacker, a habitual drug user, was unfit to stand trial. Alex Taylor, an inspector with Greater Manchester Police, had been assaulted by spitting into his eyes, requiring him to undergo eye rinsing treatment and tests for hepatitis.
The full piece can be read here.
Police face legal challenge over covert phone surveillance
The refusal by some police forces to disclose whether they are exploiting covert surveillance technology to track mobile phones is to be challenged at a tribunal, when Privacy International, represented by lawyers for the civil rights organisation Liberty, will attempt to overturn a ruling allowing the Metropolitan Police and seven other forces to “neither confirm nor deny” use of the equipment.
The full piece can be read here.
Man with sleep disorder found not guilty of sexual assault
In a case that Hickey J described as “unusual”, a 21-year-old man faces court-mandated hospital treatment after a jury at York Crown Court cleared him of sexual assault by penetration by reason of insanity as he had been suffering from the sleep disorder parasomnia during the time he had sexually assaulted his friend’s girlfriend.
The full piece can be read here.
