This week’s Digest considers six judgments, one from the Supreme Court and five from the Court of Appeal (Criminal Division). In Konecny, the Supreme Court considered whether an individual who had been convicted in absentia, but with an unqualified right to a re-trial upon such an application, was to be classified as being ‘accused’ with the meaning of s. 14(a) of the Extradition Act 2003 or ‘unlawfully at large’ under s. 14(b) for the purposes of considering the ‘passage of time’ bar to surrender. In R v Squibb Group Ltd, the Court of Appeal (Crim) heard an appeal against sentence and against conviction relating to offences under the Health and Safety at Work Act 1974. In R v Blight the court considered how to assess the value of items salvaged from wrecks in the context of a conviction for fraud. In R v Connor the court was asked whether a Sexual Offences Prevention Order that prevented the appellant from accessing the internet was workable. The issue in R v Wilkinson was whether it was a defence to a conviction upon breach of a non-molestation order that the order itself was unlawful. In R v D the court considered, in the context of a trial for council tax fraud, whether D was under a legal duty to notify her local authority of her residence in a property.
Konecny v District Court in Brna-Venkov, Czech Republic [2019] UKSC 8
The judgment, available here, was handed down by Lord Lloyd-Jones on 27.02.19.
The issue in this case was whether an individual who had been convicted in absentia, but with an unqualified right to a re-trial upon such an application, was to be to be classified as being ‘accused’ with the meaning of s. 14(a) of the Extradition Act 2003 or ‘unlawfully at large’ under s. 14(b) for the purposes of considering the ‘passage of time’ bar to surrender. The court unanimously held that such an individual is to be classified under s. 14(b) and thus that it is only the passage of time since the conviction that is to be considered when considering the passage of time bar.
The appellant, a Czech national, was convicted on 12 May 2008 in his absence by the District Court in Brno-Venkov of three offences of fraud committed between 2004 and 2005 and sentenced to eight years’ imprisonment. Extradition was sought pursuant to an EAW. The EAW stated that it was based on an enforceable judgment, namely the judgment of the District Court convicting the appellant. The EAW further specifies that he would be afforded an unqualified right to be re-tried upon his return in the event he made such an application. Before the District Judge, the appellant argued, in reliance on s. 14(a) of the Extradition Act 2003 (“the 2003 Act”), he was an accused person facing a prospective trial and that it would be unjust and oppressive to order his extradition taking account of the passage of time. The District Judge, however, ruled that the conviction provisions in s. 14(b) of the 2003 Act applied and, as such, the period of time to be considered was the time since the conviction, not since the crimes were committed. He concluded that the return of the appellant to the Czech Republic would not be unjust or oppressive. The High Court dismissed the appellant’s appeal, but certified the following point of law of general public importance, which was the subject of this appeal: “in circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he ‘accused’ pursuant to section 14(a) of the 2003 Act, or ‘unlawfully at large’ pursuant to section 14(b) for the purposes of considering the ‘passage of time’ bar to surrender?”.
The court dismissed the appeal. The express provisions of the 2003 Act in their natural meaning provide a coherent structure within which to address all cases of trial in absentia. The following principles should be applied by a court when seeking to characterise a case as an accusation or conviction case (at [50]):
- The dichotomy drawn by the Framework Decision between accusation warrants and conviction warrants is a matter of EU law. The Framework Decision does not have direct effect but national implementing legislation should, so far as possible, be interpreted consistently with its terms.
- The court should seek to categorise the relevant facts by reference to their status and effects in the law and procedure of the member state of the requesting judicial authority.
- Ordinarily, statements made by the requesting judicial authority in the EAW or in supplementary communications will be taken to be an accurate account of its law and procedure but evidence may be admitted to contradict them.
- A person may properly be regarded as convicted for this purpose if the conviction is binding and enforceable under the law and procedure of the member state of the requesting authority.
- For this purpose, it is not a requirement that a conviction should be final in the sense of being irrevocable. In particular, a convicted person who has a right to a retrial may, nevertheless, be properly considered a convicted person for this purpose, provided that the conviction is binding and enforceable in the law and procedure of the member state of the requesting authority.
- While the view of the requesting judicial authority on the issue of characterisation cannot be determinative, the question whether a conviction is binding and enforceable will depend on the law of that member state.
The court accepted that where a person with a right to a retrial is correctly classified as a convicted person for the purposes of the 2003 Act the passage of time prior to conviction is not taken into consideration. This is a deficiency in the drafting that should be rectified by Parliament, but until then article 8 of the ECHR provides an appropriate and effective alternative means of addressing the passage of time where the victim has been convicted in absentia. The district judge had thus been correct in his conclusion.
R v Squibb Group Ltd [2019] EWCA Crim 227
The judgment, available here, was handed down by Leggatt LJ on 26.02.19.
This was an appeal against conviction and sentence for offences contrary to the Health and Safety at Work Act 1974 for failing to ensure the health and safety of both its employees and those not employed by the appellant. The appellant appealed on three grounds against conviction, all of which were rejected by the court; the jury’s verdicts were not inconsistent, and nor could the judge be faulted for the way in which he directed the jury. The appeal against sentence, however, was allowed; medical evidence showed that the risk of harm was extremely low in this case and there was no justification for the judge categorising the seriousness of the harm as so great.
The appellant, Squibb Group Ltd (“Squibb”), was charged of two counts alleging breaches of the Health and Safety at Work Act 1974 (“the 1974 Act”); Count 1 charged failing to comply with its duty under s. 2(1) of the 1974 Act to ensure, so far as is reasonably practicable the health and safety at work of its employees and Count 2 an offence under s. 3(1) of breach of the same duty owed to those not employed by the appellant. The prosecution arose from Squibb’s involvement in a project to refurbish a school in which the presence of asbestos was widespread. The issue at trial was whether Squibb had done all that it was reasonably practicable for it to do to protect its employees and others against the risks to their health created by exposure to asbestos. The defence case was that it had reasonably relied on a report that all asbestos in the areas where it was engaged to carry out work had been identified and removed; the prosecution maintained that the report made it clear that areas that had not been assessed should be presumed to contain asbestos. The jury convicted the appellant on Count 1 but acquitted it on Count 2; Squibb was fined £400,000.
The appellant appealed against conviction, and to the extent that that was unsuccessful, against sentence. In relation to the appeal against conviction, the grounds were threefold: (i) the verdicts returned on Counts 1 and 2 were inconsistent; (ii) the jury should have been directed that it was not open to return different verdicts on the two counts; and (iii) the judge should have directed the jury to consider the work done by Squibb in April and July separately. As for the appeal against sentence, Squibb’s case was that the offence had been miscategorised, resulting in a sentence that was manifestly excessive.
The appeal against conviction was dismissed. On ground (i), for the court to intervene, it had to be shown that no reasonable jury could have reached the verdict that was in fact reached (R v Durante (1972) 56 Cr App R 708). In this case, there was a rational basis for the difference in the jury’s verdict; the jury was entitled to consider that the degree of risk of harm to Squibb’s employees was substantially greater than the degree of risk of harm to others and the jury’s verdict showed that while Squibb had done all that was reasonably practicable to protect the health of persons other than its employees, it had not discharged its obligations in respect of its employees. On ground (ii), in the court’s view, it followed from that conclusion that the judge could not be faulted for telling the jury to give separate consideration to each count and for directing them that it did not necessarily follow that the verdicts on each count would be the same. On ground (iii), there was no material difference in the way the prosecution case was put and thus the judge was entitled not to direct the jury to consider April and July separately.
The appeal against sentence was allowed. In the court’s view, there was nothing to substantiate the judge’s conclusion that the seriousness of the harm risked was at level A; expert evidence suggested that the result of Squibb’s breach of duty leading to death was extremely small. On that basis, the offence fell within category 3, and taking into account the 10% downward adjustment for mitigation, the appropriate fine was £190,000, which was substituted for the initial penalty of £400,000.
R v Blight [2019] EWCA Crim 280
The judgment of Leggatt LJ, dated 12 February 2019, is available here.
In this possibly unique case, citing no previous authorities, two wreck divers were convicted of fraud through a dishonest failure to disclose the information that they had taken possession of a wreck. Blight was convicted of two counts of fraud. Ingham was convicted of four counts of fraud and an additional offence of possessing criminal property. On appeal both men argued that the appropriate measure of loss could only be calculated by taking into account what fees and award they would have received, and the legitimate owners of the items would have had to pay them, had the two of them salvaged the wreck legitimately. The appeal was dismissed; the correct figure for the assessment of the harm caused by the fraud was the value of the items salvaged.
Section 236(1) of the Merchant Shipping Act 1995 provides that if any person finds or takes possession of any wreck in UK waters they have to inform the Receiver of Wreck. In 2012 Nigel Ingham was rescued on two occasions by the RNLI whilst diving in the English Channel. The receiver met Ingham in April 2013, whereupon he denied having taken any substantial items from wrecks. In September 2014 Blight’s fishing trawler, from which Ingham was wreck diving, was boarded by French coastguard officials. In October 2014 Ingham’s home was searched and around 100 items of wreck were found and seized, including a notebook which contained a list of items of wreck raised. The notebook also stated that Blight had agreed to pay Ingham 15% of the proceeds of sale of items raised. The items taken were cumulatively worth around £100,000 pounds, and Ingham kept £16,000 in cash in a safe. It appeared that most of the items had been sold off for scrap.
The prosecution case was that Blight and Ingham had engaged in a joint enterprise to raise items of wreck and sell them, without declaring them to the receiver, for commercial gain. Each man’s role was critical to the venture: Blight was the owner and skipper of the vessel used and Ingham was the expert diver. Blight was convicted on two counts of fraudulently failing to disclose to the receiver that he had taken possession of a wreck and sentenced to 3 ½ years in total. Ingham was convicted on four counts, and possession of criminal property, and sentenced to 4 years in total.
The judge found the culpability of both men to be high; they had planned and carried out the fraud for a number of years, making a large sum of money in the process. The fact that Ingham received a smaller share of the proceeds of sale was at most a factor to be taken into account at the end of sentencing. Sentencing also required the estimation of the amount of financial harm caused by the fraud. Taking £100,000 as the relevant figure for assessment of harm put the offence at the top of category 3 or the bottom of category 2 in the sentencing guideline.
The main issue on appeal was whether the judge was right to treat the estimated value of the wreck items as a suitable measure of loss to the wreck’s legitimate owners. When a wreck comes into the possession of the receiver it must be held for a year. If no owner comes forward to claim it, the wreck passes to the Crown. In either case a legitimate salvor of the wreck may claim a salvage award. The question was whether the judge should have taken into account the sum that would have been paid in salvage fees and award had the wreck been legitimately salvaged. The appellate court held that, per the 1989 International Convention on Salvage, only salvage operations that have a “useful result” give right to a reward. Removing and disposing of items taken from wrecks which were causing no obstruction cannot be regarded as useful activity, all the less if it involves the plunder of wrecks of historic interest. Had the items been salvaged and declared correctly, their owners would have received them. Those owners therefore lost the value of those items. The appeals were dismissed.
R v Connor [2019] EWCA Crim 234
The judgment, available here, was handed down by Thirlwall LJ on 26 February 2019.
The appellant sought an extension of time to appeal the terms of a Sexual Offences Prevention Order (‘SOPO’) and for permission to appeal the terms of the order. He had been convicted of a number of counts of voyeurism, possession of extreme pornography, and possession of an indecent photograph of a child, and sentenced to a total of 16 months’ imprisonment. He was also given a SOPO which severely restricted his access to the internet. The appeal was allowed. The terms of the order were unworkable and it was not the fault of the appellant that the appeal was out of time. The order was varied to better reflect the appellant’s situation while allowing for the protection of the public.
The appellant’s offending consisted in the main of videos he had made of teenage boys in the changing room at the pool, a man and a boy urinating in public toilets, people in the changing rooms and bathrooms in the mental hospital where he used to work, and the people he lived with as they used the shower and bathroom. At trial, as well as a custodial sentence, he was given a SOPO which included 10-year bans against (i) using a device capable of accessing the internet, other than a desktop computer provided by his employer and installed with internet monitoring software; (ii) accessing ‘social websites’; and (iii) having a smartphone that could either access the internet or take photos/videos.
Shortly after the appellant’s release from prison it became obvious that the order was unworkable. He contacted the court to seek advice on how to vary the order, of which the police were supportive, but it was noted that he was actually seeking to appeal the terms of the order. The case was listed but the application declined; it was unclear from the court records why. The case was listed for mention and then adjourned. No transcript exists of this subsequent hearing. Eventually the case was appealed to the Court of Appeal, which was highly critical of this state of affairs. The extension of time was duly granted; it was not the fault of the appellant that the appeal was out of time.
At the outset the Court pointed out that the order did not conform to the guidance given in Smith [2012] 1 WLR 1316, as should have been drawn to the trial judge’s attention by counsel. Hughes LJ in Smith held that a blanket prohibition on computer use or internet access is not permissible, which, in effect, this order was. There was no guarantee that the appellant was employed or that, if he was, he would be provided with a desktop computer.
The order was varied to include terms that he: (i) notify the police within 3 days of purchasing a device capable of accessing the internet; (ii) not delete its history of internet use; (iii) interfere with the normal running of any computer monitoring software; (iv) use any remote story media capable of storing digital images unless within 3 days of creation of an account for such storage he notify the police of that activity; (v) provide access to the police to any device or storage account; (vi) live in the same household as any child unless with the express approval of Social Services; and (vii) have unsupervised contact with a child other than with the informed consent of that child’s guardian or the express approval of Social Services.
R v Kirby [2019] EWCA Crim 321
The judgment, available here, was handed down by Singh LJ on 21 February 2019.
The case turned on whether it was a defence to a conviction of breach of a non-molestation order, given to the appellant by the High Court, that the original applicant for that order had no standing to do so. The appellate court held that it was not a defence; the non-molestation order stood as a court order and had to be obeyed until and unless it was revoked.
Dan Pawson-Pounds appeared on behalf of the Crown.
The appellant was given a non-molestation order not to visit his elderly mother on the application of Tower Hamlets. He breached that order within three weeks and was remanded in custody. He pleaded guilty to breaching the order and was sentenced to 12 weeks’ imprisonment. A month after his release he was again arrested at his mother’s address, convicted, and sentenced to 5 months imprisonment. Shortly after his subsequent release he again appeared in the Crown Court following allegations that he had breached the order a third time, but this time it was conceded that the original non-molestation order was invalid. Tower Hamlets were not an ‘associated person’ as required by the Family Law Act 1996. Consequently, as a matter of law, they were not permitted to apply for such non-molestation orders. The appellant appealed against his two previous convictions.
The appellant submitted that as the application should have been refused, as the statutory framework was not complied with, the order was invalid ab initio and was therefore not something that could form the basis of separate criminal proceedings. The Crown submitted that the correct avenue for relief in cases such as this is for the appellant to challenge the validity of the non-molestation order in an appropriate manner. It is not a defence to criminal proceedings.
The court held that it is a long-standing principle that there is an obligation to obey an order of a court unless and until that order is set aside, following Chuck v Cremer [1846] EngR 924 (A). The appellants could not avail themselves of authorities, such as R v Beck [2003] EWCA Crim 2198, that stated that the Crown Court was a court of limited statutory jurisdiction; the non-molestation order was granted by the High Court, which is of unlimited jurisdiction. However, Singh LJ went further to note that the rule that an order of the court must be obeyed unless and until it has been set aside has also been applied to courts of limited jurisdiction, such as in Johnson v Walton [1990] 1 FLR 350. This case was not cited to the court in Beck. The famous case of Boddington v British Transport Police [1999] 2 AC 143 could be distinguished on the ground that that case concerned the validity of bylaws and not court orders. While the validity of a bylaw can be questioned by way of defence in criminal proceedings, court orders could not.
The appropriate remedy was not a challenge to the conviction of the appellant but to the order imposed by the High Court. If this was to be done so as to provide a defence, it ought to have been done before an offence was committed. Making an application to set it aside four or five years after the event could not form a defence. The Court also laid down a marker to clarify that the orders of courts with “limited statutory jurisdiction”, such as the Crown Court, the County Court and Tribunals must still be obeyed, even if wrong in law, unless and until that order has been revoked.
R v D [2019] EWCA Crim 209
The judgment, available here, was handed down by Davis LJ on 5 February 2019
In 2008 D told her local authority that she had moved out of her house, leaving only her tenant, and so applied for a 25% single person council tax discount. The prosecution case was that she was and always had been since 2008 resident in the property and was engaged in council tax fraud. The prosecution sought to argue a specific count that D was guilty of fraud for dishonestly failing to notify the local authority of her continued residence. However, the Court held that no such duty to notify the local authority existed. The appeal was dismissed.
The issue in this prosecution appeal against a terminating ruling from the trial judge was whether, in the context of a trial for fraud, D was under a legal duty to disclose to her relevant local authority the fact of her residence at a particular address. The prosecution case is that D is and has been since 1998 the registered legal owner of a property. In 2008 she said that she had moved out of the property and applied for a single person’s discount in respect of her council tax. A new council tax account was set up in the name of her tenant and a 25% discount granted to council tax. The prosecution case is that D remained resident at the property, attempting to dodge council tax, and made multiple representations to that effect. Counts 1 to 5 of the indictment were pleaded as counts of fraud by false representation. Count 6 was pleaded as fraud by dishonestly failing to disclose her residence at the property, which she was allegedly under a legal duty to disclose.
The trial judge noted that there is no express provision in the statutory regime for people in D’s position to keep a local authority informed of where they are living. The prosecution argued that such an obligation had to be implied into statute as it would be ‘ludicrous’ to contend that there was no obligation on a household to tell the local authority if they are residing in a property. The trial judge expressed sympathy with the prosecution’s argument, and granted them a lengthy adjournment to attempt to find any statutory provision to that effect, but had to conclude that there was no such duty. The prosecution appealed.
The Court of Appeal could not fault the judge’s reasoning. It appeared that while D was under a legal obligation to pay the due amount of council tax, she was under no such obligation to notify the council of her continued residence. From a public policy position, this apparently surprising conclusion made sense. The Court noted that many people, such as young people or students, move regularly. Few give notice to their new local authority that they have moved into the area. Under the prosecution’s argument, this omission could open them up to prosecution. The appeal was dismissed.
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