Weekly Digest: 11 November 2019

The appellants had been convicted of a number of offences of cruelty, assault and rape of a child under 13 committed between 1994 and 2002 against their foster daughters. At the trial a counsellor gave evidence relating to her counselling of one of the foster-daughters from June 2003 for a period of 12 – 18 months. Her evidence was treated as expert evidence and included her views on trauma, its effect and the ability of people to speak about it. The appellants appealed against their conviction on the ground that the admission of that evidence made their convictions unsafe.

Leaving aside the question of whether counselling is truly an expert field, it would only be in a very rare case, for example where there was a dispute about the counselling techniques that had been adopted and which mattered for some reason (because it affected the value of the factual evidence of a counsellor), that expert counselling evidence would ever be relevant, and therefore admissible ([55]). The principal reason why evidence from counsellors is admissible at all is as evidence of fact, not of the allegations themselves, but in order to show that the complaints were made at the time of the events or shortly thereafter ([56]). That factual evidence will be of limited compass, restricted to the timing and nature of any complaints made during the counselling sessions. When giving that evidence, a counsellor must take great care to use objective language, and to avoid saying anything which could be construed as subjective comment or statements of personal opinion ([91]). The opinion parts of the counsellor’s evidence were therefore plainly inadmissible, and, moreover, were couched in over-emotive language ([58], [68], [69]). However, they were not part of the principal evidence in the case and the judge’s legal directions can have left the jury in no doubt as to its peripheral nature ([72]). The safety of the appellants’ convictions was not therefore undermined and the appeal was dismissed ([89] and [90]).

The appellants were due to stand trial in respect of a charge of committing a criminal offence contrary to section 42 of the Armed Forces Act 2006. They contended that the Crown’s case, as served, is insufficient for a board, properly directed, safely to convict them and accordingly should be dismissed. They submitted that rule 26 of the Armed Forces (Court Martial) Rules 2009 (SI 2009/2041) permitted a judge advocate to apply the provisions of paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 so as to dismiss the charge, or alternatively that the judge advocate could dismiss the case under rule 25(3). The Judge Advocate General ruled that there was no power for a judge advocate to dismiss a charge before a Court Martial. He further held that while a judge advocate could terminate the trial proceedings under rule 25(3) if persuaded that the prosecution evidence would not be sufficient for the defendant(s) to be properly convicted, if he considered it in the interests of justice to do so, he could only do so once the trial had commenced and it would not be an abuse of process for the Director of Service Prosecutions to attempt to continue the proceedings. The appellants appealed against that ruling.

The Court Martial Appeal Court granted leave, reversing the Judge Advocate General’s ruling and directing that the case be listed before a judge advocate in order to hear an application to dismiss. Rule 25(3) of the 2009 Rules must be read in its context: it is concerned with difficulties arising in relation to the constitution of the board ([27] to [29]). It does not provide a stand-alone or residuary jurisdiction at the arraignment stage to terminate proceedings ([31]). However, under rule 26 a judge advocate must take into account in preliminary Court Martial proceedings how to conduct those proceedings; and how comparable proceedings would be conducted in comparable circumstances in the Crown Court. Paragraph 2 of Schedule 3 to the 1998 Act does not apply to a Court Martial, but a judge advocate must ensure that a comparable process can be conducted in comparable circumstances ([39]). There is no Service reason for depriving a Service defendant of his right to apply to dismiss, on the basis that the evidence is insufficient ([38]). However, it should be noted that this is a procedural issue and this decision should not be taken to lead to the conclusion that the rules can apply such as to import substantive law into the Court Martial proceedings ([40]).

The “Extinction Rebellion Autumn Uprising” was intended to run at separate sites throughout London between Monday 7 and Saturday 19 October 2019. At 1900 hours on 14 October 2019, a police Superintendent, who had been designated as Bronze Commander for Contingencies, purported to exercise his power under section 14(1) of the Public Order Act 1986 to impose the following condition on the protests: “Any assembly linked to the Extinction Rebellion “Autumn Uprising” (publicised as being from 7th October to 19th October at 1800 hours) must now cease their protest(s) within London (MPS & City of London Police Areas) by 2100 hours 14th October 2019.” The parties, who had either spoken or demonstrated at the protests, or were supporters of Extinction Rebellion, sought judicial review of that decision.

It was common ground that those claimants who had been arrested in breach of the condition had standing to challenge it ([60]). Where it is apparent there are claimants with standing to bring the claim and address the relevant issue, the court will examine more critically the claims of others to have standing. Although the other claimants were clearly interested in and supporters of Extinction Rebellion, in the circumstances, they did not have a sufficient interest to bring the claim ([61]).

In relation to an assembly being held, section 14(1) of the 1986 Act provides the most senior in rank of the police officers present at the scene to impose conditions on that assembly. The assembly referred to in section 14(1) must be a particular assembly ([68]). The assembly must also be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a scene. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of section 14(1) of the 1986 Act ([72]). The scene of the assembly could not be construed as being the police station from which the Superintendent was operating and it was clear that the Superintendent was not the most senior police officer present in the whole of the Metropolitan and City of London police areas ([69]). Moreover, section 14(1) does not provide a power to prohibit, rather than merely impose conditions upon, gatherings that have not yet begun ([70]). The Extinction Rebellion Autumn Uprising intended to be held from 14 to 19 October 2019 was not therefore a public assembly in the presence of the Superintendent at the time he purported to impose the conditions. Accordingly, the decision to impose the condition was unlawful ([72]).

The claimant was the operator of a slaughterhouse who had been prosecuted by the Crown Prosecution Service for breaches of Regulations 30(1)(c) and 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (SI 2015/1782). The claimant contended that the prosecution had been in breach of regulation 41 of the 2015 regulations which provides that notwithstanding section 127(1) of the Magistrates’ Courts Act 1980 (summary criminal proceedings must be commenced within 6 months of the offence), a magistrates’ court may try an offence under those regulations if the information is laid within 3 years of the offence and within 6 months of the evidence which the prosecutor thinks is sufficient to justify the proceedings coming to the prosecutor’s knowledge. Regulation 41(2) provides that a valid certificate signed by or on behalf of the prosecutor stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact. A valid certificate had been issued in this case stating a date within 6 months of the commencement of proceedings. The claimant alleged that the evidence relied upon had in fact been provided to the CPS some 8 months earlier and that the proceedings should be ruled out of time, or alternatively an abuse of process.

The provision for a prosecutor’s certificate to be conclusive evidence requires a strict approach. A conclusive evidence provision prevents the court, subject to very limited exceptions, from enquiring whether the fact certified is or is not correct ([23]). A certificate must comply strictly with the statutory requirements if it is to constitute conclusive evidence: it must be signed by or on behalf of the appropriate prosecutor and must state what it is required to state. A certificate which fails to do so is a nullity ([25]).

Although the prosecutor is the CPS, it is not the time from which the evidence comes to the knowledge of the CPS that is relevant for regulation 41, but when it comes to the knowledge of the relevant individual with responsibility for deciding whether to commence proceedings ([31], [59]). Further, the date on which the relevant evidence came to the prosecutor’s knowledge is not to be equated with the date on which the relevant evidence was placed on their desk or delivered to their inbox. It is the date on or by which it has been considered so that knowledge of the content has been imparted. Often the imparting of the knowledge and the forming of a decision whether to prosecute will be the same time but hypothetically they may differ and it will be the date when the file was reviewed that is the date when the evidence came to the prosecutor’s knowledge ([60]).

However, there is no scope for a defendant to invoke policy considerations to challenge a certificate which is valid on its face ([25]). A certificate in proper form is conclusive evidence of the relevant date from which the six-month period begins to run, and in the absence of fraud is not open to challenge by reference to extraneous evidence showing that it is wrong or even plainly wrong ([61] and [62]). The instant certificate, which had no error in its face, was therefore conclusive evidence of the relevant date ([63]).

Whether there was an abuse of process is a separate question concerned with the fairness of the procedure and of the trial and may have a role to play in an appropriate case. For example, even where there is a conclusive certificate a prosecutor’s failure to apply his or her mind to the sufficiency of evidence may lead to a delay which impacted on the fairness of the proceedings ([71]). In the instant case, however, it was still possible for the claimants to have a fair trial ([69]).

The appellants had been the subject of European Arrrest Warrants relating to their conviction for sexual and violent offences in Italy. They had been acquitted of certain offences in the first instance court, but on appeal to the Assize Court of Appeal they were convicted of offences in respect of which they had been acquitted below. They then further appealed to the Court of Cassation in Rome which set aside one of the convictions on a point of law but upheld the others. The appellants appealed against their extradition on the ground that the relevant hearing, for the purpose of section 20 of the Extradition Act 2003, was that at the Court of Cassation rather than the Assize Court of Appeal, that they had not been present at that hearing or deliberately absented themselves, and that as they would have no right to a re-trial or a review amounting to a re-trial their extradition should be discharged under section 20(7). They also contended that pursuant to section 21 of the 2003 Act and Article 6 of the ECHR, the District Judge erred in finding that there had been no flagrant denial of justice

The appellant’s appeal was dismissed. Their appeal to the Assize Court of Appeal had been a full “merits” appeal against both conviction and sentence ([50]). Proceedings in the Court of Cassation in Rome were, however, of a significantly different nature, examining only issues on points of law ([51]). The Court of Cassation was not making its own findings on the merits ([53], [54]). Although aspects of the sentence were re-calculated when a conviction was quashed, no discretion was being exercised in that respect ([78]). The decision of the Court of Justice of the European Union in Criminal proceedings against Tupikas (Case C-270/17PPU) cannot be read as affording any assistance to the proposition that appeals on points of law, where no new findings of fact are made, are somehow to be equated with “merits” appeals ([61]). That in Italy limitation periods continue to run until the Court of Cassation judgment (if there be one) has no determinative bearing on the identification of the relevant “trial”, neither does the fact that the convictions and sentence only became “enforceable” for the purposes of a European Arrest Warrant once that judgment was handed down ([68], [69]). The District Judge had not erred in finding that the Assize Court of Appeal was the relevant hearing for the purpose of section 20 of the 2003 Act.

The jurisprudence of the ECtHR has consistently found that Article 6 of the ECHR may exceptionally be raised as a reason for resisting an expulsion or extradition decision, where the person concerned has suffered or risks suffering a flagrant denial of justice in the requesting country ([81]). No “flagrancy” threshold falls to be applied when looking at Article 4a of the Framework Decision ([82]). However, when applying section 21 of the 2003 Act, any Article 6 ECHR challenge has to meet the “flagrancy” threshold if it is to succeed ([83]). Here, the District Judge was right to find the evidence before him fell far short of a “flagrant denial of a fair trial” and to dismiss the section 21 challenge ([84]).

The Chief Coroner’s report on preventing future deaths has called on the government to review how public spaces are assessed as possible terrorism targets and to consider criminalising “possession of the most serious material glorifying or encouraging terrorism”.

The full piece can be read here.

Freedom of Information requests have revealed that of the 403 people prosecuted in 2018 for the offence of attempting to meet a child following sexual grooming, more than 250 of were charged following evidence gathered by paedophile hunting groups.

The full piece can be read here.

The Government has announced a review of the law and use of pre-charge bail and the practice of release under investigation.

The full announcement can be read here.