In this week’s Digest, we examine two recent Court of Appeal (Criminal Division) judgments. In the first, the Court of Appeal confirmed the scope of the availability of a writ of venire de novo. The second was an appeal under s. 31 under the Proceeds of Crime Act 2002, seeking reconsideration of the amount available under a compensation order.
R v. Bahbahani [2018] EWCA 95 (Crim)
The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 05.02.18.
This was an application for leave to appeal against conviction and sentence. The applicant sought a writ of venire de novo in respect of a conviction in the Magistrates’ Court and contended the sentencing proceedings in the Crown Court were a nullity as they were an abuse of process. Leave was refused. A writ of venire de novo was not available in respect of summary proceedings in the Magistrates’ Court. Further, there was no abuse of process and the recorder had not erred in his application of the correct principles, under s. 10 of the Proceeds of Crime Act 2002, in the calculation of the benefit derived from the applicant’s criminal activity.
In August 2014, in the Magistrates’ Court, the applicant was convicted of two offences of being breach of an enforcement notice contrary to s. 179(2) and (8) of the Town and Country Planning Act 1990 – he had added buildings for residential use to a premises without planning permission. Following committal to the Crown Court for sentencing, the appellant was fined and ordered to pay prosecution costs. In addition, a confiscation order was made in the sum of £4,310,311 under the Proceeds of Crime Act 2002, a term of eight years’ imprisonment being fixed in default. The applicant was not present during any of these proceedings, but rather, Mr Abdul-Jalil, who managed the applicant’s property interests in the UK, appeared on his behalf. There was a power of attorney executed by the applicant in Mr Abdul-Jalil’s favour, authorising him to act on the applicant’s behalf.
The applicant sought leave to appeal against the conviction imposed and to quash the conviction in the Magistrates’ Court on the basis that:
- the applicant’s trial was a nullity since he was impersonated at his trial; thus he sought a writ of venire de novo;
- the sentence proceedings were an abuse of process once it became known that he had not personally appeared in the Magistrates’ Court; and
- the confiscation order made was wrong in principle.
Venire de novo
The Criminal Division of the Court of Appeal has power to order a venire de novo only under the circumstances wherein its predecessor, the Court of Criminal Appeal, could do so pursuant to powers conferred on it by the Criminal Appeal Act 1907. Such power did not include a power to declare a summary trial a nullity. Rather, venire de novo was, and is, concerned solely with trials on indictment and with fundamental irregularities which render such a trial a nullity (for the history of the writ, see R v. Rose [1982] AC 822, 829G – 831A per Lord Diplock). There was no power in the present proceedings to expand the availability of the writ. Further, the court commented that there was no reason to either given the varied ways in which a conviction in the Magistrates’ Court could be challenged.
Abuse of Process
It was argued on behalf of the applicant that the recorder in the Crown Court wrongly refused to grant his application for a stay of the confiscation proceedings. In circumstances where the applicant was not present and was not aware of the criminal proceedings before the Magistrates’ Court, it was an abuse of process to continue with the sentencing and confiscation proceedings.
This was rejected. The court commended the recorder’s approach. This was not a case where the applicant was impersonated by or faced with the actions of antagonistic third parties whose actions he disowned; rather, he was represented by his trusted agent. The recorder correctly addressed the test to be applied in an application to stay criminal proceedings; there was no conduct which risked damaging the integrity of the criminal justice system; the difficulties in this case were, rather, of the applicant’s own doing.
The sentence appeal
The applicant argued that the recorder was wrong to apply the criminal lifestyle assumptions contained within s. 10 of the 2002 Act, because to do so created a serious risk of injustice. Alternatively, the confiscation sum was in breach of Article 1 of Protocol 1 of the ECHR and was therefore disproportionate.
This was rejected. There was no reasons for displacing the s. 10 assumptions. The recorder had heard detailed and extensive evidence and submissions over eight days. None of the applicant’s London properties were funded from legitimate sources and much of the evidence given in relation to his dealings was found to be false. The order made was based on the proper calculation of the benefit derived from the applicant’s criminal lifestyle.
There was, however, a narrow issue on which leave was granted: it was agreed between the parties that the default sentence of eight years’ imprisonment was appropriate only to the confiscation sums and not the fines. Thus, a sentence of 40 days’ imprisonment was substituted in default of payment of the fines.
R v. Mundy [2018] EWCA 105 (Crim)
The judgment, available here, was handed down by Lord Justice Simon on 23.01.18.
This was the Crown’s appeal, under s. 31(1) of the Proceeds of Crime Act 2002 against a refusal of an application pursuant to s. 22 of the same act for reconsideration of the amount available under a compensation order. The appeal was dismissed; the course taken by the judge was properly open to him on the facts, even if his reasoning in reaching that conclusion could have been fuller.
The respondent was convicted of a number of drug offences and, on 9 December 2008, in confiscation proceedings under the Proceedings of Crime Act 2002 (“the 2002 Act”), a confiscation order was made in the sum of £9,275 with six months to pay and a period of six months’ imprisonment fixed in default. The entire sum was paid, but there was a shortfall of some £163,090 between the benefit figure and the assessed available sum remained outstanding. The Crown, accordingly, on the 26 May 2017, some years after the respondent’s release from prison, made an application under s. 22 of the 2002 Act for reconsideration of the amount.
In refusing the application, the judge observed that s. 22(4)(a) of the 2002 act required the exercise of a discretion to make a just order. On that basis, and in these circumstances, the judge ruled it would not be just to make an order and thus he refused to exercise his discretion.
The Crown appealed under s. 31(1) of the 2002 Act on the ground that the judge had confined himself to considering whether it was just to make an order, whereas this was just one factor, albeit the most important one. In response, the Court noted five points. First, they agreed that s. 22(4)(a) of the 2002 Act conferred a discretion to reconsider the amount. Second, on an appeal under s. 31(1) the Court would consider whether the decision was outside the parameters of the reasonable exercise of a discretion. Third, the passage of time may be a relevant consideration in considering whether it is just to make an order, but there is no express limit. Fourth, an assessment of an amount which is “just” extends beyond what is just to the defendant; rather, it means just in all the circumstances of the case. Fifth, the Court stressed the importance of assessing the competing considerations in each case.
In the present case, it was open to the judge to conclude as he did; i.e. his decision was not beyond the parameters of a reasonable exercise of discretion. Thus the appeal was dismissed. The Court expressed the view that the judge’s reasoning could have been fuller.
R v. Jon Venables, Mr Justice Edis, Central Criminal Court, 7 February 2018
The full remarks are available here.
John Venables was sentenced to 40 months’ imprisonment following a guilty plea to three counts of making indecent images of children contrary to s. 1 of the Protection of Children Act 1978 and one count of possession of a paedophile manual contrary to s. 69(1) of the Serious Crimes Act 2015. Some 1170 images were found on his laptop; 392 of these were category A images.
The judge noted that the offences contrary to s. 1 are specified offences, but continued that the high risk of harm he posed to the public was fully addressed by the fact he was already subject to a life sentence for the murder of James Bulger. The relevant guidelines suggested a starting point of 1 year with a range going up to 3 years. Aggravating factors included the fact these offences were committed while on licence and the extreme nature of the images found; thus the sentence was increased to the next category range within the guideline ,which is usually reserved for offence involving the distribution of such images. The only point in mitigation was the guilty plea.
Louis Mably QC acted for the prosecution; Jonathan Hall QC represented the Attorney General in related injunction proceedings.
R v. Glen Gibbons, Mr Justice Bryan, Manchester Crown Court, 7 February 2018
The full remarks are available here.
Mr Gibbons pleaded guilty to murdering his ex-girlfriend, Ms Parker. Their relationship was described by the judge as volatile and was marred by a history of violence. On 25 September 2017, Mr Gibbons lay in wait for Ms Parker, having gained entry by trespass, with a large knife and stabbed her, with the intention to kill, no less than twelve times.
The judge imposed the mandatory life sentence, adopting the starting point of 25 years. Aggravating factors, including the premeditation, the trespass, and previous bad character, led to an inflation to 28 years. The mitigating factors, Mr Gibbons’ remorse and psychological traits, reduced the term to 26 years. Mr Gibbons was given full credit for his guilty plea and received a four year reduction, resulting in the minimum term being set at 22 years, less the 113 days spent on remand.
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The full piece can be read here.
British group living in EU obtain preliminary reference
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The full piece can be read here.
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In a letter in the Guardian, Professor Pamela Taylor, Chair of the Forensic Faculty of the Royal Society of Psychiatrists, highlights the dire state of the mental health provision in prisons.
The full piece can be read here.
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The full piece can be read here.
