Weekly Digest: 12 November 2018

The Court in this case considered two cases that were not connected on the facts, but raised issues concerning the validity of the indictments uploaded by the prosecution onto the Court Digital Case System (“the CDS”) on which both appellants were convicted. In both cases the jury were put in charge, and returned a verdict of guilty on counts contained in an indictment uploaded to the CDS. After conviction, a court officer realised that the form of indictment used at trial differed from the indictment on which the appellant had been arraigned, in particular by adding one or more counts on which the jury had returned a guilty verdict, but in respect of which the applicant had not entered a plea. The prosecution had intended to apply to amend the indictment under s. 5 of the Indictment Act 1915, but had failed to do so.

Each appellant, while accepting that they were not prejudiced by these procedural irregularities, contended that the form of indictment on which they were tried was a nullity as the only valid indictment was the unamended original; accordingly, their convictions on the CDS indictments should be set aside or declared to be invalid. In particular, reliance was placed on R v. Leeks [2009] EWCA Crim 1612; [2010] 1 Cr App R 5 where a guilty plea to a count purportedly added to an indictment without amendment was held to be a nullity and was quashed.

The question was whether the form of indictment on which the trial proceeded had been ‘preferred’ within the meaning of s. 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (“the 1933 Act”), as amended by the Coroners and Justice Act 2009 (“the 2009 Act”), with the result that the draft indictments uploaded to the CDS became indictments “to be proceeded with accordingly”. The Court held that they were. The revised draft indictments had been preferred by being uploaded to the CDS in accordance with Rule 10 of the Criminal Procedure Rules and, in the absence of any objection before the commencement of proceedings made by the appellants under s. 2(6ZA) of the 1933 Act, there could be no objection made now.

A further issue raised by the appellants was whether the continuing existence of the original indictment somehow rendered the proceedings a nullity. The Court held that such an argument was wrong for two reasons: (i) an accused may have one or more indictment outstanding against him for the same offence (R v. Poole [1961] AC 223), all that is required is that the prosecution choose between them, as they did in this case; and (ii) that the applicants were not arraigned on the new indictment does not invalidate proceedings where the charges are disputed.

The Court emphasised that Leeks no longer represented the law and said the following about the modern practice about uploading indictments to the CDS:

“[t]he modern practice of uploading draft indictments onto the CDS, intended to be convenient for all parties and to improve efficiency, is capable of leading to confusion and serious error…. The risk of multiple versions and uncertainty as to which is the “true bill” is obvious. We emphasise that it is the duty of both prosecution and defence representatives to ensure that steps are taken to regularise the position as the case progresses and, in particular, that the form of indictment used at trial has received all necessary consideration. In that regard, it would also obviously be good practice for trial judges to enquire of counsel whether there were any outstanding issues in relation to the indictment before it is read before the jury at trial: whether that should be incorporated into a rule is a matter for the Criminal Procedure Rule Committee.”

Finally, one of the applicants sought leave to appeal against sentence on the ground the sentencing judge should not have imposed an extended determinate sentence. This failed; the circumstances of the offence – a sustained, premeditated attack on an ex-partner with ammonia – in itself justified a finding of dangerousness.

Virginia and Alan Shirt (VS and AS respectively) were convicted of conspiracy to defraud by making false representation contrary to s. 2(1) of the Fraud Act 2006. Two co-accused were on the indictment, but they pleaded guilty. The facts revealed that VS and AS had been party to an agreement to forge the will of VS’s sister’s partner, such that his property would devolve on VS’s niece. At trial, under s. 74(1) of the Police and Criminal Evidence Act 1984 (“PACE”), the trial judge allowed the prosecution to admit the co-accused’s pleas of guilty to the indictment. The defence case was that such evidence should be excluded under s. 78 PACE because of its prejudicial effect; it was said the admission of the evidence would have the effect of importing the complicity of the appellants in the conspiracy. The appellants appealed against their conviction on the basis that by not exercising his discretion under s. 78 PACE, the trial judge had rendered the proceedings unfair such that the appellants’ convictions were unsafe.

The appeal was dismissed. The Court acknowledged, as the judge did, that the introduction of such evidence would have raised difficulties for the defence on the issue of the genuineness of the will and the existence of a conspiracy, but it did not have a similar impact upon the other issues which the jury had to resolve; for example, the prosecution still had to prove that the appellants were a knowing party to the conspiracy and that they had acted dishonestly. These were the key issues which the jury had to decide to convict the appellants.

The applicants, Rahman (R), Ali (A), Hussain (H) and Aziz (AZ) were all convicted of an offence of engaging in conduct in preparation of terrorist acts, contrary to s. 5(1)(a) of the Terrorism Act 2006. The facts disclosed that all of them had been involved of the discussion of extremist Islamic ideology and, particularly, that a bomb, along with other dangerous paraphernalia, had been found in AZ’s car. The applicants’ advanced four grounds of appeal on this renewed application for leave to appeal against conviction:

• the trial judge should have discharged the jury at an early stage of the trial in light of the terrorist incident at Westminster Bridge on 22 March 2017 as thereafter a fair trial was not possible;
• the trial judge should have lifted the anonymity order which had been made in respect of two important prosecution witnesses as this deprived the defence of being able to properly test the credibility of that witness;
• the judge discharged one juror on the grounds of bias and, in those circumstances, he should have discharged them all, especially where other members of the jury had failed to report the bias of that particular juror; and
• the judge’s summing up of the evidence given by an important prosecution witness was unbalanced and unfair to the accused.

The Court refused leave to appeal and addressed the issues as follows:

• The discharge of the jury is a matter of the trial judge’s discretion and it was well established the Court would only interfere where the decision was wrong in law or beyond the ambit of decisions reasonably open to him. This was not such a case; the judge dealt with the incident expertly, directing himself correctly in law with reference to, inter alia, R v Abu Hamza [2007] 1 Cr App R 27 and, therefore, it was impossible to argue that the course he took was one which was not open to him. The result did not lead to an unfair trial; some four months had passed between the Westminster Bridge attack and the retirement of the jury and other terrorist incidents had happened in the intervening period, in respect of which the accused had taken no action.
• The test for lifting an anonymity order is found in s. 91 of the Coroners and Justice Act 2009. The issue in this particular case, on the applicants’ submission, was whether the anonymity orders had arguably prevented the applicants from making points which they would have otherwise been able to make, and whether their inability to make those points rendered the trial unfair. The Court held that the applicants had not been so prevented; the judge had directed himself correctly in law and considered all the relevant factors.
• The judge had, again, dealt expertly with the problem that arose. He was entitled, after making enquiries of the jurors who were involved in the incident which led to the discovery of juror 1’s bias, not to make further enquires of the jury and treat that breach of their duties as comparatively minor. Thus, there was no room for challenge.
• The judge had formulated a number of questions about the evidence of the prosecution witness in question for the jury, as he was entitled to do. On each occasion, he made it clear to the jury that it was a matter for them whether they wished to consider the question at all, and it was for them to determine what answer they gave to those questions. He did no more than assist the jury with questions they might want to ask. Again, there was no sufficient ground for impeaching the judge’s summing up.

Finally, the Court dealt with a renewed application by AZ for leave to appeal against sentence on the basis that the life sentence imposed on him was manifestly excessive and should be substituted for an extended determinate sentence. This application failed; while the Court recognised that the sentence was “a heavy one for the applicant” ([58]), the use of a bomb, the purpose of which was to kill, maim, and spread fear, could properly lead to a life sentence, as Kahar [2016] 2 Cr App R (S) 32 made clear. The judge had considered the extended sentence but was correct in his observation that it was impossible to predict when AZ would cease being a danger to the public. Accordingly, the life sentence was justified.

Proceedings against the respondent (E), who was charged on an indictment alleging assault by penetration and sexual assault, were stayed on the basis a fair trial would not be possible. E was alleged to have forced himself upon his two step-sisters, EC and R. It was said that E forced his way into EC’s pyjama bottoms and penetrated R with his fingers. At trial, the defence submitted that the case be stayed as an abuse of process of the court on the basis of a concession made by the prosecution that there had been a breach of duty by the police which led to the loss of material which might have supported E’s case. The breach of duty in question related to the police’s failure to seize EC’s phone. The prosecution sought leave to appeal against the terminating ruling of the judge on the basis that (a) there was no breach of duty, seeking to withdraw the concession, and, in any event, (b) it was still possible for E to have a fair trial.

The Court granted leave and allowed the appeal, ordering that proceedings in the Crown Court be resumed before a different judge. The application for leave fell to be considered pursuant, to the provisions of s. 67 of the Criminal Justice Act 2003, which as elucidated in R v. B [2008] EWCA Crim 1144 at [19] by Sir Igor Judge P, meant that “leave will not be given… unless it is seriously arguable… it was unreasonable for [the judge’s discretion] to have been exercised in that way”. It considered the following two points:

• The concession: Such a change of position would only be permitted in exceptional circumstances (R v.R [2015] EWCA Crim 1941). This was not such a case and, in the Court’s view, it was at least arguable that it was appropriate that the prosecution should make the concession.
• Fair trial: The proper approach on such issues was to consider whether the trial will be fair generally, which required an analysis of all the circumstances of the case, being, necessarily, a fact sensitive decision. The judge, in the Court’s view, took a decision that was not open to him. This was based upon (i) the undue weight which he had placed upon a single message between EC and her father, which did not mean it would be likely that material relevant to the offences would be on the device; (ii) the weight he had placed on the observation that a phone is a contemporaneous record of a young person’s life; and (iii) a direction to the jury appropriate to the facts of the case would have been effective.

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