This week’s Digest considers five judgments, four of the Court of Appeal (Criminal Division) and one of the Divisional Court. R v A considered the extent to which time spent on remand in local authority accommodation can be taken into account when passing sentence; in R v Smythe, the Court considered an appeal against sentence imposed for offences of causing or allowing physical harm to a child; the issue in
R v Briddle was whether the lack of an intermediary rendered the appellant’s conviction unsafe; the Court in R v Maxwell considered an appeal against sentence imposed for an offence contrary to s. 20 of the Offences Against the Person Act 1861; and, finally, in R (Lyons) v CCRC, the Divisional Court considered whether the CCRC was right to refuse to refer the claimant’s convictions to the Court of Appeal.
R v A [2019] EWCA Crim 106
The judgment, available here, was handed down on 06.02.19 by Mr Justice Sweeney.
The issue in this case was the extent to which time spent on remand in local authority accommodation under s. 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 could be taken into account when passing sentence in light of the fact that the amended s.242(2)(b) of the Criminal Justice Act 2003 referred only to time spent on remand under s. 91(4). The Court held that the only way that such credit could be awarded was for it to be included in the calculation of sentence, there being no power to compel the authorities to give credit for time spent on remand or qualifying curfew under s. 91(3).
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.
R v Smythe & Anor [2019] EWCA Crim 90
The judgment, available here, was handed down by Lord Justice Simon on 25.09.18.
The issue in this appeal was whether sentences of 8 years imposed on the appellants for an offence contrary to s. 5 of the Domestic Violence, Crime and Victims Act 2004 were manifestly excessive. The Court allowed the appeal, substituting a sentence of 6 years’ imprisonment, on the basis that the judge had erred in applying sentencing guidelines that were not in force at the time of sentencing and, in addition, the sentences imposed were manifestly excessive in the circumstances.
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.
R v Biddle [2019] EWCA Crim 86
The judgment, available here, was handed down by Lady Justice Hallett on 22.02.19.
The issues in this appeal were whether the trial judge had erred in (i) not allowing an intermediary to be present for the benefit of the appellant throughout the whole trial and (ii) giving an adverse inference direction pursuant to s. 35 of the Criminal Justice and Public Order Act 1994 on account of the appellant’s failure to give evidence. The appeal was dismissed; this was not one of the rare cases where an intermediary was required for the whole trial and there was nothing to suggest that there was a causative link between the lack of an intermediary and the decision not to give evidence.
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.
R v Maxwell [2019] EWCA Crim 130
The judgment, available here, was handed down by Mr Justice Burbidge on 25.01.19.
The issue in this case was whether a sentence imposed for an offence contrary to s. 20 of the Offences Against the Person Act 1861, which had as its starting point a term beyond the guidelines, was manifestly excessive. The court dismissed the appeal; given the circumstances of the case, including the injury caused and other aggravating factors such as the offender being on licence at the time of the offence, the judge had been justified in going beyond the guideline range.
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.
R (Lyons) Criminal Cases Review Commission [2019] EWHC 183 (Admin)
The judgment, available here, was handed down by Lady Justice Nicola Davies on 05.02.19.
The claimant challenged the refusal of the Criminal Cases Review Commission to refer two convictions, one for rape and one for sexual assault by penetration, to the Court of Appeal on the basis of new evidence. The challenge failed; the circumstances in which the Divisional Court would intervene in such cases as these were limited and, in this case, there was no clear error in the approach of the Commission which justified such an intervention.
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.
Fury over MoJ ‘betrayal’ on legal aid at inquests
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.
Nearly 65% of prisoners at women’s jail ‘show signs of brain injury’
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.
No-fault divorce to become law
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.
University launches scheme to rehabilitate sex offenders
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.