Weekly Digest: 11 December 2017

The appellant was a barrister who was accused of professional misconduct and was subject to disciplinary proceedings brought by the Bar Standards Board.  The Bar Standards Board Complaints Committee concluded that 5 of the 6 charges brought against the claimant were proved. The appellant appealed to the Visitors to the Inns of Court, who allowed her appeal.  Sir Andrew Collins, delivering the judgment of the Visitors, observed that they had no doubt that none of these charges should stand. In the light of this conclusion it was not necessary for the Visitors to rule on two further submissions, namely that there had been procedural unfairness in the course of the hearing and that there was a lack of reasons in the decision of the tribunal. The Visitors observed, however, that there was in their view considerable force in those submissions.

The appellant issued proceedings against the Bar Standards Board, alleging violations of Articles 6 and 14 of the European Convention on Human Rights.  By its defence the Bar Standards Board denied the appellant’s allegations and also maintained that the claims under the 1998 Act were time-barred by virtue of section 7(5)(a) of the Act.  Section 7(5)(a) of the Human Rights Act 1998 provides that a claim must be brought before the end of the period of a year beginning with “the date on which the act complained of took place”.

The Supreme Court held that the expression “the date on which the act complained of took place” was apt to address a single event.  The court held that the provision should not be read narrowly, however, on the basis that there will be many situations in which the conduct which gives rise to the infringement of a Convention right will not be an instantaneous act but a course of conduct.  Lord Lloyd-Jones therefore held that section 7(5)(a) should be capable of providing an effective and workable rule for situations where the infringement arises from a course of conduct.

In considering whether the Board’s conduct in proceedings before the Visitors should be considered as forming part of the same continuing act as its conduct in proceedings before the disciplinary tribunal, it was necessary to have regard to the nature of the regulatory scheme and the precise features of the Board’s conduct. Several features of the regulatory scheme and the Visitors’ jurisdiction led to the conclusion that the Board’s part in proceedings before the disciplinary tribunal and those before the Visitors should be regarded as part of a single, continuing act. In particular, the Visitors had a supervisory jurisdiction in relation to disciplinary proceedings, which included a function of hearing appeals from disciplinary tribunals. For the purposes of section 7(5)(a), the Board’s conduct in bringing and pursuing the disciplinary proceedings was a single, continuing act which continued until the Visitors allowed the appeal. The instant proceedings had therefore been commenced within a period of one year beginning with the date on which the act complained of took place

The claimants’ case was that they were unlawfully rendered from Thailand to Libya in Match 2004. In January 2012, an investigation commenced into complaints of ill-treatment of detainees, which became known as Operation Lydd. As a consequence of those investigations, consideration was given as to whether there should be a prosecution for misconduct in public office associated with the rendition. The CPS concluded that there would be no such prosecution. The claimants invoked their Victim’s Right to Review, which arrived at the same conclusion.  The claimants initiated judicial review proceedings which sought to challenge the decision not to prosecute. The Secretary of State applied, then as a non-party to the action, that there should be a declaration pursuant to section 6 of the Justice and Security Act 2013 permitting closed material proceedings in the case. That application was resisted by the claimants on a number of grounds, the first of which was jurisdiction. The claimants submitted that these judicial review proceedings constitute a “criminal cause or matter” within the meaning and for the purposes of the JSA 2013, and hence fall outside the Court’s jurisdiction to make a declaration under Section 6 of the 2013 Act.

In concluding that there was jurisdiction to receive an application pursuant to section 6 of the Justice and Security Act 2013, Irwin LJ observed that the term “criminal cause or matter” has not been given a consistent interpretation. His lordship held that the factual and legal context in which the term is used is crucial to its interpretation. In enacting the 2013 Act, Parliament was forging a solution, applicable a wide range of proceedings, with the common thread that the proceedings could not be properly tried and the relevant evidence examined by the court, without closed material proceedings.

If the case was an appeal in criminal proceedings, closed proceedings would likely violate Article 6 of the ECHR as well as a number of common law principles. The instance case, however, could properly be regarded as “proceedings” concerning a “criminal cause or matter”, not an appeal “in” criminal proceedings. The court therefore held that there was jurisdiction to consider the Secretary of State’s application.

The claimant disrupted a meeting of the Hampshire Police and Crime Commission Panel. She was led from the hall in which the meeting was taking place by a Police Community Support Officer. It was alleged that once outside, she kicked the Police Community Support Officer who escorted her from the meeting in the shin. She was convicted of common assault by District Judge Gillibrand, sitting in Aldershot Magistrates’ Court. She appealed against her conviction to the Crown Court.  Her appeal was heard by HHJ Cutler and two magistrates, sitting in the Crown Court at Winchester.  The Crown Court dismissed the claimant’s appeal and refused to state a case to the Divisional Court.

It was submitted on behalf of the claimant that the Crown Court erred in not determining whether the Police Community Support Office was entitled to remove the claimant from the hall by force and by failing to consider whether she could plead self-defence.  The claimant argued that a case ought to have been stated to the Divisional Court on this basis.

Dismissing the claim for judicial review, the court examined section 28(1) of the Senior Courts Act 1981, which provides that “[subject] to subsection (2) [which disapplies subsection (1) to judgments or other decisions of the Crown Court relating to trial on indictment], any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court”. The court confirmed that it was not open to an applicant to pursue a challenge on the grounds that a decision of the Crown Court was against the weight of the evidence. The Crown Court may also refuse to state a case if the application is frivolous.

Lindblom LJ agreed with the interested party that there was no arguable question of law to be decided and that the Crown Court was correct not to state a case. The Crown Court clearly found that the claimant had kicked the victim in an act of retaliation. The claimant’s issue was therefore with the Crown Court’s findings of fact. The questions raised by the claimant did not properly fall within the High Court’s jurisdiction to entertain an appeal by way of case stated, and the Crown Court’s refusal to state a case was not inappropriate or unlawful.

The claimant had been made subject to a confiscation order on 20^th January 2003 in the sum of £6,258,966.41 of which he paid only £354,407.14. A term of 7 years’ imprisonment was imposed in default of payment. An appeal against the imposition of the confiscation order was dismissed by the Court of Appeal (Criminal Division) on 9^th June 2005. The claimant was eventually arrested and brought before the Magistrates’ Court on 20^th September 2016.

The claimant submitted that the passage of time between the dismissal of his appeal on 9^th June 2005 and the order of the Chief Magistrate on 20^th September 2016 to commit him to prison meant that the Chief Magistrate should not have made that order, but rather should have stayed the proceedings for committal to prison as an abuse of process. He relied on two distinct but related sources for a power to stay in these circumstances, namely (1) the power of the Magistrates’ Court to stay proceedings as an abuse of process and (2) the right of the claimant, guaranteed by Article 6 of the European Convention, to a trial of the allegation against him within a reasonable time.

Dismissing the claimant’s claim for judicial review, Edis J stated that the fact that a previous court may have decided that a warrant should be refused because it had found that the CPS had delayed for a particular number of years before applying for it did not, without more, provide any assistance at all to the proper outcome of this case. It was held that this case was distinct from one where the charge against the defendant had yet to be tried. In such a case, the duty rests on the prosecution and the court to bring him to trial. The individual in question has certain procedural obligations but cannot stop that process by inaction. He is also presumed during this period to be innocent of the charge. Where he has been convicted and sentenced and ordered to pay a confiscation order he is required, as part of the consequences of his crime, to take a step, namely to pay the order. That is a continuing duty and there is a strong public interest in securing its satisfaction.

In relation to Article 6, Edis J stated that the conduct of the defendant was irrelevant to the existence of his Article 6 right, but highly relevant to whether there has been a breach and, if so, what the remedy should be.  This was clear from R (Lloyd) v Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin).  In relation to the reasonable time requirement, the court held that Dyer v Watson [2004] 1 AC 379 was of general application. In that case Lord Bingham enunciated the following considerations:

1. The complexity of the case – The more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.
2. The conduct of the defendant – In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively.
3. The manner in which the case has been dealt with by the administrative and judicial authorities – It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus, it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case

In the instant case, the court held that the decision of the prosecution not to commence proceedings until the claimant was arrested was not unreasonable. In determining whether it would be disproportionate to impose the sentence of imprisonment, the court must look at the detailed facts and circumstances of the particular case.  The court concluded by stating that,

“In some cases such a period may have the effect of relieving an offender of the imprisonment otherwise consequent upon his default in paying the order. In some cases a much shorter period of time may have that effect. In each case a fact specific decision is required of the kind made by the Chief Magistrate in this case on the evidence available to him”.

The respondent was charged with two offences. One charge was that of using threatening or abusive words or behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. The second was the racially aggravated form of the same offence contrary to section 31 of the Crime and Disorder Act 1998. The justices acquitted the respondent on the basis that it was not his intention to cause harassment, alarm or distress.

Bean LJ held that there were flaws in the reasoning of the justices’ decision. In particular, in a case brought under s 5 of the Public Order Act 1986 (as opposed to a case under s 4A of the same Act) the prosecution do not have to prove any intention to cause harassment, alarm or distress. The mental element which they do have to prove is that set out in s 6(4), namely either an intention that the words or behaviour should be threatening or abusive; or an awareness that the words or behaviour may be threatening or abusive (with similar alternatives in respect of disorderly behaviour which are not relevant to the present case). Section 6(5) further provides that, for the purposes of s 6 “a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated”.

This was not the only flaw in the justice’s decision. In the grounds for decision the justices found that the respondent had had a lot to drink that day and was intoxicated. This was a finding of fact they were entitled to make, but it was irrelevant to whether the s 5 offence had been committed. As s 6(5) makes clear, a drunken defendant is treated for the purposes of the issue of awareness as if he had been sober. It was also irrelevant to the issue of guilt or innocence, as opposed to sentence in the event of conviction, that the defendant was very sorry for his behaviour.

It was submitted on behalf of the respondent that the acquittal should be upheld on the basis that the police officer involved in the altercation with him did not give evidence that he or anyone else felt harassed, alarmed or distressed by the words which Mr Smith admitted saying. All the police officer had said was that he found them offensive. The justices agreed that the language was offensive but that was not the same thing as a finding that they caused anyone alarm or distress.

In allowing the appeal and quashing the decision of the justices, Bean LJ concluded that, “Section 5 of the 1986 Act makes no mention of offensiveness. Not everything which is offensive is distressing, although there is plainly a good deal of overlap between the two categories”.  It would be open to the trial court, especially if satisfied that the words were overheard by members of the public, to find that those who heard them were caused, or were likely to have been caused, alarm or distress.

The full sentencing remarks of McGowan J are available here.

Mohammaed Abdallah, who was 26 years of age, travelled to Libya in 2011 and fought there. In June 2014, he travelled to Turkey with the intention of crossing into Syria. The defendant had demonstrated support for two proscribed organisations.  Money was transferred to the defendant to enable him to achieve his purpose of fighting in Syria. Documents recovered from records kept by Islamic State demonstrated that his allegiance had shifted to that organisation. In 2016, the defendant travelled to Libya and fought there. In September 2016, the defendant’s family contacted the authorities through his solicitor and he voluntarily returned to the United Kingdom, where he was arrested. Given his young age and experience of using heavy weapons, her ladyship found that the defendant met the statutory criteria for dangerousness in the Criminal Justice Act 2003.  The maximum sentence for joining a proscribed organisation was 10 years and the maximum for the possession of weapons was 15 years. The appropriate starting point for the offence of possessing a weapon was held to be 8 years and joining a proscribed organisation was held to be 5 years.  The sentences were reduced to 6 years and 4 years respectively, to take into account mitigation and the principle of totality. The defendant was sentenced to a total term of 10 years and an extended licence of 5 years, to take into account the finding of dangerousness.

The Lord Chief Justice, Lord Burnett of Maldon, held his annual press conference on Tuesday, 5 December 2017 at the Royal Courts of Justice. Questions ranged from the size of the prison population, to the issues posed by social media

The transcript is available here.

The Equality and Human Rights Commission has announced that it intends to launch an inquiry into the Grenfell Tower fire that will examine whether the government and the Royal Borough of Kensington and Chelsea failed in their duties to protect life and provide safe housing.

The full piece can be read here.

A small number of prisoners –approximately 100 – will be given the right to vote after a British compromise offer to marginally extend the franchise was accepted on by the Council of Europe.

The full piece can be read here.