This week’s Digest considers three judgments; one handed down by the Supreme Court and two handed down by the Divisional Court. The issue in Cape Intermediate Holdings was whether the Court of Appeal had inherent jurisdiction to make an order to disclose documentation available in a trial in the High Court to a victim’s forum which was not party to the proceedings. In De Zorzi the Court considered whether the appellant, who was resisting extradition to France, was a fugitive for the purposes of section 14 of the Extradition Act 2003. In Wixted the Court made it clear that, save in exceptional circumstances, a deliberate breach of an injunction protecting the new identity of Jon Venables will result in immediate custody.
Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38
The judgment, available here, was handed down by Lady Hale on 29/07/2019.
The Supreme Court held that the Court of Appeal had inherent jurisdiction to make an order to disclose documentation available in a trial in the High Court to a forum which was not party to the proceedings. The Supreme Court emphasised that the scope of the court’s power to order access to materials to non-parties is informed by the principle of open justice.
The appellant (“Cape”), a company involved in the manufacture and supply of asbestos, was a defendant in a trial in the High Court to claims brought by employers’ insurers. After the trial had ended, but before judgment was delivered, the claims were settled. The Asbestos Victims Support Groups Forum UK (“the Forum”), which was not a party to the proceedings, applied to the court under CPR 5.4C for access to all documents used at or disclosed for the trial. The Court of Appeal ordered limited disclosure to the Forum. Cape appealed to the Supreme Court, arguing that the disclosure should have been more limited. The Forum cross-appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C in the way that it did.
The Supreme Court dismissed the appeal and cross-appeal. The Supreme Court limited disclosure to (i) statements of case held by the court pursuant to Rule 5.4C; (ii) provision by Cape of witness statements, expert reports and written submissions; and (iii) ordered that the application be listed before the trial judge (or another High Court judge if he is unavailable) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum in accordance with the principles laid down in the judgment.
The default position is that the public should be allowed access, not only to the parties’ submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge has been asked to or has said that he or she has read [44]. It does not follow, however, that an applicant has a right for access to be granted (save to the extent that the rules grant such a right). A non-party seeking access must explain why he seeks it and how granting access will advance the open justice principle [45-47]. By way of postscript, the Supreme Court urged the bodies responsible for framing the court rules in each part of the UK to consider the questions of principle and practice raised by this case [51].
De Zorzi v France [2019] EWHC 2062 (Admin)
The judgment, available here, was handed down by Mr Justice Garnham on 29 July 2019.
The Court allowed an appeal against an extradition order. The appellant, charged with offences in France, who had been permitted to return to the Netherlands before her conviction and sentence were issued, was not a fugitive and therefore could rely on section 14 of the (“EA 2003”). She had not knowingly placed herself beyond the reach of French justice; she had already been beyond its reach. She was therefore permitted to rely on delay by France in seeking her extradition.
The appellant was arrested in Paris for smuggling drugs in 2000. She was summonsed to a hearing in 2001 in France, which she attended. She said that she was told after the hearing that she could leave, and she returned to the Netherlands. A judgment was issued in which she was convicted and sentenced to three years’ imprisonment. She appealed against the sentence, via her lawyers; she was summonsed to a hearing but did not attend at the French court. She resisted extradition from the Netherlands, and in 2005 the Dutch courts refused the extradition request. In 2015 France published an alert for the 2005 European arrest warrant, and in 2018 the appellant was arrested at Manchester airport while returning to the Netherlands after visiting a friend. She resisted extradition under sections 14 and 21 of the EA 2003 by reason of delay and Article 8 of the European Convention of Human Rights (“ECHR”).
The Court found that the judge had been wrong to find that the appellant was a fugitive. The test for fugitive status was subjective, and was whether the requested person had knowingly placed themselves beyond the reach of a legal process. The appellant had been at large since the conviction in 2001, but she had not been unlawfully at large given that she left France with permission. She had not knowingly placed herself beyond the reach of the French legal process; she had already been beyond its reach [46-62]. More than 17 years had passed between conviction and arrest, and 19 years had passed since the offences were committed. The appellant had continued her well-established life in the Netherlands and had avoided all criminality. As she was not a fugitive and bore no responsibility for the delay, extradition would be oppressive under section 14 EA 2003.
The Article 8 balance shifted significantly with the finding that the appellant was not a fugitive. The public interest in ensuring that the UK was not a safe haven for fugitives did not apply. However, the public interest in extradition diminished where there had been very significant delay for which the requested person was not responsible. The appellant’s offending was serious, but not of the very gravest kind. Extradition would interfere with her Article 8 rights and those of her adult daughter. She had led an apparently blameless life since 2000, and was in full-time employment with an established life in the Netherlands. The balance tipped in her favour [66-74].
Her Majesty’s Solicitor General v Anthony John Wixted [2019] EWHC 2186 (QB)
The judgment, available here, was handed down by Lord Justice Bean on 1 August 2019. William Hays appeared for the Solicitor General.
The Court decided to commit the respondent to prison for his contempt of court in breaching a longstanding injunction granted to protect the identity of Jon Venables. He was sentenced to nine months’ imprisonment.
On 8 January 2001 injunctions were granted by President of the Family Division, Dame Elizabeth Butler-Sloss, restricting the disclosure of information about the new identities of Jon Venables and Robert Thompson. On 20 February 2018 Mr Wixted posted an image on Twitter which included a photograph of a white male adult wearing glasses with a text saying that this was Jon Venables and giving the new name by which he alleged Venables was then known and the prison in which he was allegedly being held together with the words, “SHARE, SHARE, SHARE, SHARE.” In the three months during which the post of 20 February 2018 about Venables remained on Twitter it had been re-tweeted 47 times and received at least 56 likes.
The Government Legal Department wrote to Mr Wixted on 20 November 2018 informing him that the Solicitor General was considering committal proceedings. The application was issued on 21 February 2019. The contempt was admitted by Mr Wixted at a hearing on 11 June 2019. Following the adjournment at the previous hearing, a clinical psychology report was obtained. The clinician reported that Mr Wixted’s behaviour was not directly related to mental illness.
The Court referred to cases concerning the breach of these injunctions beginning with Harkins and Liddle [2013] EWHC 1455 (Admin). The Court observed that these cases had repeatedly stated that, save in exceptional circumstances, a deliberate breach of this injunction should result in immediate custody. That is so not only because breaches pose a substantial risk to Venables or Thompson but also because they pose a substantial risk to innocent members of the public who might be mistaken for Venables. The Court sentenced Mr Wixted to nine months’ custody with immediate effect. The Court considered that the contemnor would be entitled to be released at the halfway point of that sentence in the usual way.
Sentencing Remarks: R v Louise Porton
The sentencing remarks of Mrs Justice Yip, available here, were made on 2 August 2019.
Louise Porton was convicted of murdering her two daughters, aged 16 months and three years; she was sentenced to life imprisonment, with a minimum term of 32 years.
On 15 January 2018, Ms Porton claimed that she had found her daughter Lexi, aged three, dead in her bed. An initial post-mortem examination did not identify any obvious cause of death. The results of further tests were outstanding on 1st February 2018 when, 17 days after her Lexi’s death, Mr Porton killed her 16-month-old daughter, Scarlett. Ms Porton also tried to pass Scarlett’s death off as an unexpected natural death.
The judge did not consider that the extent of premeditation crossed the threshold as to amount to a statutory aggravating factor. However, the circumstances of the case were grave and aggravated the seriousness of the offending generally. The judge considered that the abuse of trust by Ms Porton and the vulnerability of the victims both derived from the relationship of mother and child and should be viewed together to guard against double counting.
On the other hand, the Judge considered that Ms Porton’s young age and relatively good character afforded her mitigation. The judge considered that Ms Porton was immature and, while there was no evidence of mental disorder, it was plainly part of her make-up that she found it difficult to make and sustain emotional attachments and to put the needs of others ahead of her own.
The judge considered that the aggravating features called for an uplift from the starting point. However, she moderated that uplift significantly to reflect the mitigation available to Ms Porton, particularly her young age.
Woman conceived by rape presses police to prosecute her father
A woman from Birmingham who was conceived when her mother was allegedly raped in the 1970s at the age of 13 years old, has asked the police to consider a “victimless prosecution” against her father, which would mean a case could be brought even though her mother did not want to report the rape again.
The full piece can be read here.
Man first to be jailed under Finn’s Law after police dog knife attack
A man who nearly blinded a police dog while high on monkey dust and cocaine has become the first person imprisoned under Finn’s Law. The man admitted a charge under the Animal Welfare (Service Animals) Act 2019 and was imprisoned for 21 months for the attack and other offences.
The full piece can be read here.
No release for killer under “Helen’s law” unless he reveals where victim is hidden
A businessman convicted of murdering a member of his church congregation may never be freed after he was sentenced to life on 5 August 2019 at Reading Crown Court, with a minimum term of 17 years, unless he reveals where he has hidden his 20-year-old victim’s body under “Helen’s law”, introduced in July 2019, which places a legal duty on the Parole Board to reflect the failure to disclose the site of a victim’s remains when considering a prisoner’s suitability for release.
The full piece can be read here.
Justice secretary warns police over “phone trawling” in sexual assault cases
Justice Secretary Robert Buckland has stated that police must not waste scarce resources on needlessly trawling through electronic devices in rape cases and has expressed concern that complainants in sexual assault cases were “having their innocent private lives trawled over by complete strangers”, warning that the police should be told to approach investigations of digital evidence with caution.
The full piece can be read here.
