Weekly Digest: 13 November 2017

The appellant, the owner of the Indian Garden Restaurant, was convicted of manslaughter by gross negligence and contravention of other related food safety requirements on 23^rd May 2016. On 30^th January 2014, Paul Wilson died at home from anaphylactic shock having ingested substantial amounts of peanut contained in a curry, which purported to contain no peanut, purchased from the appellant’s restaurant. This was not an isolated incident, but rather had happened on two other occasions. At trial, there was evidence that the appellant’s business was doing poorly and, as such, he had ordered mixed nut powder rather than almond powder for his kitchen to save money. The appellant averred that he had not ordered mixed nut powder but mixed nut powder had been provided by mistake. The appellant further maintained that he had given oral instructions to his staff regarding appropriate allergen controls and his staff had received the proper food hygiene training. Thus, it was the appellant’s case at trial that he had discharged any duty owing in relation customers who declared that they had an allergy. The jury nevertheless returned a guilty verdict and the appellant appealed against the conviction primarily on two grounds.

1. The judge misdirected the jury on breach of duty. The appellant contended that where there are separate and distinct acts or omissions, each of which is capable of amounting to a breach of duty, it essential that the jury is given directions to enable them to identify and then determine the individual acts and omissions which constitute the breach. This, however, was based on a misunderstanding of the manner in which the prosecution brought their case. Their case was based not upon the individual acts or omissions of the appellant, but rather upon a single alleged breach; i.e. that the appellant had failed to take reasonable steps to avoid injury to customers who declared an allergy. Thus, this was not a case where the whole jury had to be satisfied in respect of one individual matter before they could find breach proved, but rather the jury were required to consider what steps, if any, the appellant had taken to avoid risk of harm to customers with an allergy. The judge had correctly directed the jury in those respects.
2. The judge misdirected the jury on causation. At trial, it was clear that legal causation was not a key plank of the defence. In defence counsel’s exchange with the judge during the discussion of directions, he confirmed he was satisfied that, if the jury concluded there was a breach of duty, then there was no issue on causation. That was reflected in the judge’s directions, which on appeal the appellant sought to take issue with. The court held that not taking legal causation as a separate argument below appeared to have been a tactical decision and thus it was inconsistent to maintain it now. It was clear that such an argument predicated on causation was unattractive since, if breach was made out, such breach would clearly have been more than a de minimis cause of the victim’s death.

Thus, with neither of these grounds made out, the appeal against conviction failed. Supplementary alleged shortcomings of the judge’s directions (on standard of care, standard of proof, foreseeability and risk of death, and lies) were found to have been adequately dealt with in the judge’s directions.

The appellant also argued that his sentence of six years imprisonment was manifestly excessive. The court held, however, that any mitigating factors were outweighed by those countervailing and aggravating ones relating to the seriousness of the breach of the appellant’s duty. The court held that the appellant’s negligence was not just gross, but ‘appalling’, such that a sentence of six years was not excessive at all.

The complainant (“K”) was the appellant’s half-sister and some six years younger than him. K alleged that while staying at the appellant’s father’s house, the appellant had bullied her and this progressed to sexual abuse, including sexual intercourse, when she was seven or eight. It was put to K in cross-examination that these allegations were fabricated. She had not told anyone about the abuse; no one had seen these alleged injuries from the bullying; and she was vague and unclear about dates and other important details. These allegations, it was suggested, were a product of jealously of the appellant’s close relationship with her father. Nevertheless, the appellant was convicted on one count of sexual touching of K’s leg while they were sharing a bed on 23^rd March 2017.

The appellant appealed against his conviction on three grounds:

1. The judge’s comments on K’s character before the summing up of her evidence amounted to a misdirection. It was argued that these comments regarding K’s character operated to undermine the direction given in the appellant’s favour. Added to this, there had been no evidence before the jury on K’s character one way or the other. This matter was revisited with the judge in the absence of the jury, but the judge denied that there had been an overly favourable character direction and that it negated the good character direction in respect of the appellant.
2. The judge’s directions diluted the points that the defence sought to make about the discrepancy between the evidence of K and contents of medical records. The judge’s direction seemed to encourage the jury to doubt the extent to which the written record could be trusted; phrases like “a record is only as good as the record-maker” tended to this conclusion.
3. The judge’s summing-up concerning the period the appellant’s mother had been living at the appellant’s father’s house and the periods when she was in Jamaica was unsatisfactory. The summing up omitted the mother’s evidence as to the time of her earlier period of presence in the property, when K had said she had been bullied and struck with a belt by the appellant. She had said she had never left the appellant and K on their own or seen the alleged injuries, despite bathing her regularly. This had been left out of the judge’s summing up.

The court accepted the points made on these directions; there was a tendency for the judge to undermine the credibility of the appellant and to enhance that of the complainant. This effect, it was held, was particularly stark in respect of the discrepancies between the evidence of K and what it was accepted were the facts disclosed by the medical records. The appeal was accordingly allowed, the conviction quashed and the Crown’s application for a retrial refused.

The appellant, a Polish national, committed a number of offences between September 2002 and August 2003. Accordingly, he was sentenced to 2 years and 8 months’ imprisonment by a court in Poland. While serving his prison sentence, he was allowed a 5 day pass to sell his property, but he did not return at the expiry of this period. Rather, he travelled to the UK with his partner and child and found work in London. Despite having had a daughter in 2006, the relationship between the appellant and his partner deteriorated such that the appellant moved away to Norfolk, where the children subsequently moved to live with him. This was motivated in part by the mother’s drug and alcohol problems.

There was a failed attempt to find the appellant and return him to custody in Poland. In June 2016, it was indicated to the District Court that the appellant might be in the UK and, as a result, a European Arrest Warrant (“EAW”) was issued for the his arrest. In December 2016, the appellant was arrested and, as a result, Norfolk County Council were contacted about the status and wellbeing of his children. They in turn produced an assessment which revealed strong concerns about their welfare.

At first instance, the District Judge concluded that, despite factors which militated against extradition – particularly the appellant’s family life in the UK and the fact he was in full time employment – he was satisfied the public interest in extradition outweighed any interference with the Article 8 rights of the Appellant and his children. The appellant was then  given leave to appeal on the ground that the judge failed to take sufficient account of the effect that the appellant’s extradition would have on his two children, who, if he was surrendered, might have to return to their mother, go into foster care or stay with extended family in Poland.

The judge, however, could see no basis for allowing the appeal. First, in his judgment, the judge had given proper weight to the concerns of social services and the children’s wishes. He further noted that the failure to give effect to those wishes did not mean that they had not been properly considered. Second, the judge held that DJ had properly considered the delay of some 14 years between the commission of the first offence and the extradition proceedings, but was within his right to conclude that surrender would not involve a disproportionate interference with the family’s Article 8 rights. Third, the DJ was correct to conclude that, even though social services were involved at the highest level, there was no basis for inferring the unfitness of the mother to care for the children and, in any event, social services were on hand to help her with any difficulties. As such, although separation may be painful, safeguards were in place to ensure the welfare of the children was properly looked after.

The appellant had been the subject of two European Arrest Warrants (“EAW”). The former related to a judgment in September 2014, which was issued in January 2017 but later withdrawn (“the earlier EAW”) and the latter related to a judgment of January 2017, which was the subject of these proceedings (“the latter EAW”). Before the District Judge at first instance, the appellant contended that the EAW did not contain the information specified under s. 2(6)(b) and (e) the Extradition Act 2003 (“the 2003 act”); i.e. the latter EAW did not contain particulars of conviction or particulars of sentence. The basis of this contention was that it was at least possible the sentence of “3 years” referred to in the latter EAW related not just to the offences particularised in that EAW, but also to the offences which had been the subject of the earlier EAW. As the relevant particulars of the offences in the earlier EAW were not contained within the latter, the latter was invalid. At the hearing, the DJ also had the benefit of further information sent from the District Court in Most which confirmed, in the DJ’s judgment, that the sentence imposed for the earlier EAW was not aggregated with sentence imposed for the latter EAW. Accordingly, the judge held the latter EAW compliant with s.2 requirements.

On appeal, the appellant contended that the further information provided by the District Court at Most should have led the DJ to conclude that he could not be sure that the 3 year term did not also relate to the offences of which the earlier EAW was the subject. The judge did not accede to this submission, but rather he agreed with the respondent. The respondent had contended that, although the DJ should not have relied on the further information to be sure that the sentence of 3 years was not an aggregate of the earlier and latter EAW offences, all the particulars necessary to satisfy s.2 of the 2003 act could be supplemented by the particulars of the offences in the earlier EAW. Thus, taking into account all extrinsic evidence, the latter EAW was held to comply with s.2.

The defendant was the adoptive father of baby Elsie. On the 25^th May 2016, the defendant inflicted injuries on baby Elsie, which caused her immediate collapse and ultimately lead to her death on the 29^th of May 2016. Baby Elsie suffered hypoxic ischaemic encephalopathy, a brain injury including subdural haematoma, bleeding in the eyes, the retina, the perimacular folds and in the area of the optic nerve. She sustained a full thickness fracture of the skull and fractures to three posterior ribs. The injuries to her torso were caused by the way in which the defendant gripped the baby; the head injury by impact with a hard surface.

Elsie came to live with the defendant, Craig (the defendant’s husband) and her adoptive sibling on 10^th September 2015. Elsie was expected to fit in with the routine the couple had with their other child. Text messages between the defendant and his husband suggested this was not happening. The defendant referred to Elsie using derogatory terms, often employing aggressive language. Neighbours also reported the defendant swearing and screaming at baby Elsie.

These were not the first incidents of abuse; after two months of the baby moving to the defendant’s home, in November 2015, Elsie was taken to hospital as she had allegedly fallen while playing at an activity table in the kitchen. As a result of this fall, Elsie sustained fractures of the tibia and femur of her right leg. The doctor missed the fracture to the pelvis. Had this opportunity not been missed and the doctor accurately interpreted the x-ray, the case would have been referred to a consultant and there was a possibility this would have led to further inquiries as to the nature of Elsie’s injuries.

Further, in December 2015, January 2016 and March 2016 , Elsie was found to have sustained further injuries – a bruise to the head and other bruise-type injuries. Medical assistance was only sought in respect of the March 2016 incident, an apparent fall down the stairs. When explaining the December 2015 and January 2016 injuries, the defendant maintained these were sustained when Elsie fell while at her play kitchen. This, it was found, could not have been the case.

Against this background of constant abuse, the defendant was found guilty of murder. Thus, the starting point – as per schedule 1 of Criminal Justice Act 2003 – was a sentence of life imprisonment. Aggravating factors included the fact that Elsie was vulnerable and that the defendant showed a predisposition to injure his adoptive daughter. The defendant showed no remorse and although his crime lacked premeditation, this was tempered by the fact that the anger he showed towards Elsie was not an isolated incident. Having begun with the starting point of 15 years as the minimum term of imprisonment, the judge found the appropriate sentence to be 18 years’ imprisonment.

The five defendants in this case were all involved in a sophisticated scheme to cheat the Revenue, which had an intended loss to the tax payer of some £107 million. The defendants created and marketed a tax incentivised investment scheme which was intended to create a claim for sideways loss relief against income tax for anyone who invested in it. This tax relief was available to them because the tax system was designed to encourage investors to support environmentally beneficial schemes and to fund research into the state of the environment and sustainability.

The investors each became a partner in an LLP which then commissioned Carbon Positive Trading Limited to carry out research and development at a cost of £7.1 million per LLP. In the end, there were 38 LLPs, each of which purported to raise £8.5 million to fund scientific research agreements and meet other costs. Of that total amount, £269.8 million appeared to have been spent on research and development and it was on this basis that tax relief claims were made. In reality, 80% of that figure was thin air. Each time an LLP was floated, money contributed by previous investors was passed to it by an offshore company owned and operated by the conspirators, Environmental Guarantee Corporation Limited (EGCL) based in the Isle of Man. The LLP in turn then passed that money to the development contractor, an offshore company registered in the BVI. Each transaction was recorded on the books of the LLPs as a loan of £7.1 million. The conspirators never intended the value to be used on research and development. Rather, the contractor passed the money back to EGCL where it was available to fund the next LLP or be moved in accordance with the conspirators’ instructions for their own personal benefit.

Given the complexity of the case, the judge had much to say in respect of the involvement of all five individuals. He sentenced them individually as follows.

Michael Richards

Mr Richards was one of two who devised and ran the fraud. His level of culpability was, accordingly, very high. On a personal level, he was found to have cheated the Revenue out of £2,327,372 in unpaid income and capital gains tax over a period of three years. This was due because of the proceeds of fraud. This was, therefore, an aggravating feature of the fraud.

In terms of mitigation, Richards was entitled to the benefit of previous exemplary conduct as well as a 20% reduction for delay – which all the defendants benefitted from – since the trial had taken seven years to come on.

This was a category 1A offence and so the starting point was 12 years based on a loss of £80 million. The loss in this case was intended to be £107 million and the starting point had to be adjusted to 14 years to reflect that. Therefore, taking into account the mitigating factors, the sentence to be imposed on the conspiracy to defraud the Revenue was 11 years, with a concurrent term of 7 years imposed for his personal tax offences.

Robert Gold

Mr Gold was treated in the same way, being the second man at the helm of the scheme. The only difference was that the concurrent term imposed for his personal tax offences was 6 years since he had cheated the Revenue out of half the amount Richards had.

Rodney Whiston-Dew

Mr Whiston-Dew was a solicitor who stood as general counsel to the scheme. He provided information which led to the formation and abuse of offshore companies and accordingly his level of culpability was high but he was not the controller. Thus the starting point for his sentence, with the 20% reduction was 10 years. The concurrent term imposed for his personal tax fraud was 7 years.

Evandros Dimitrou

Mr Dimitrou’s level of culpability was not as high (category B) but he benefitted from the fraud and had aided in perverting the course justice through his dishonesty. The starting point in his case was 8 ½ years, which, on account of the fact that he is the sole carer of his elderly and sickly wife, was reduced to 6 years.

Jonathan Anwyl

Mr Anwyl’s level of culpability was also category B. He was first moved to involve himself in the project through genuine concern for the environment. He was later, however, corrupted by the other individuals in the scheme and his sentence was not affected by the same aggravating factors. The starting point for his sentence was thus 7 years, reduced to 5 ½ with the 20% reduction.

The CPS has accepted deleting emails concerning the extradition of Julian Assange. Email exchanges between the CPS and the Swedish equivalent were apparently deleted after the retirement of a CPS lawyer in 2014. The disclosure was made following a Freedom of Information request made by an Italian journalist. This journalist is pursuing her FOIA request at a tribunal hearing this week.

The full piece can be read here.

A family whose daughter was killed by a lorry while walking along a dual-carriageway have said that the authorities charged with keeping her safe let her down. Previous investigations by public bodies identified failings and neglect and, as a result, the family have called for the coroner to be replaced so that full inquiry into the death can be conducted.

The full piece can be read here.

Police reportedly used a facial reconnection service at the Remembrance Sunday Cenotaph service. This, it has been stressed, is a trial. The police forces complied a dataset of 50 individuals known for obsessive behaviour towards public figures and cameras were used to identify any individual on the list who attended the event.

The full piece can be read here.

The International Court of Justice could be without a British member for the first time since 1946 as Sir Christopher Greenwood has been forced into a runoff election against an Indian Candidate, Dalveer Bhandari. Facing the prospect of losing a British judge at the ICJ has been hailed an “international political embarrassment”. Voting is expected to take place on Monday.

The full piece can be read here.