This week’s Digest considers three judgments: two from the Court of Appeal (Criminal Division) and one from the High Court. First, the Court in R v AJ considered whether terrorism charges against an individual returning from fighting ISIS in Syria should be stayed as an abuse of process when he had been told he would not be prosecuted. Secondly, R v C concerned the interpretation of s. 116 of the Criminal Justice Act 2003 where the statement-maker had committed suicide before trial, and considered how a court should respond when the jury have noticed bad character evidence which counsel and the court have not. Thirdly, Cunliffe v CCRC addressed the test to be applied to post-Jogee joint enterprise murder cases by the Criminal Cases Review Commission.
R v AJ [2019] EWCA Crim 647
The judgment of Sweeney J, dated 11 April 2019, is available here.
At an interlocutory hearing the appellant unsuccessfully applied to stay the proceedings against him as an abuse of process. He was charged under the Terrorism Act 2006 with preparing terrorist acts and attending places used for terrorist training in both Syria and Iraq, where he had fought against ISIS. He appealed the decision to prosecute him on the grounds that the criminal offences were vague and imprecise, contrary to his legitimate expectation that he would not be prosecuted, and that the decision did not consider his mental illness and vulnerability. Leave to appeal was refused; the case proceeded to trial.
Mark Weekes appeared for the Crown.
For the purposes of the application, it was accepted that the appellant had undergone physical and other training before travelling to Iraq and Syria with the intention to fight for the PKK, a Kurdish terrorist organisation, and the YPG, the Kurdish People’s Defence Force, against ISIS. The prosecution accepted that if the appellant’s preparatory steps and intention only related to the YPG, then he should be acquitted. The appellant was seen by Prevent Officers prior to his departure to Iraq and Syria, where he was warned that he could be arrested for criminal offences if he went to fight, before joining the YPG in August 2017. He took part in fighting in Eastern Syria. The organisations he fought for were openly supported by the UK and its military allies. Having left the YPG in late 2017, he contacted the Prevent Team and was told by a Chief Inspector that the police could help repatriate him, and that if he came home he would be arrested but would not be charged or accused of being a terrorist. He was arrested immediately upon his return on 14 February 2018, and was charged the following day with terrorism offences.
The ultimate question as to whether a decision to prosecute is an abuse of process is whether a trial would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system. The judge’s ruling involved two principal decisions, namely that the prosecution up to this point was not an affront to the integrity of the criminal justice system, and that this was not overturned by the fact that some of the terrorist acts for which the appellant was preparing or training were carried out with the support of the Royal Air Force. The integrity of the justice system could be best affirmed by a trial, in which the judge would consider if the Crown had advanced a case to answer.
On appeal, the court upheld the trial judge’s reasoning and concluded that he was right not to consider the issue of whether, in public law terms, there had been a legitimate expectation that the appellant would not be prosecuted. A person in the appellant’s position has the protections of the criminal law and Article 6 ECHR, and it would be an error to introduce the doctrine of legitimate expectation into an application to stay criminal proceedings as an abuse of process. In the event, on the facts, the question of legitimate expectation did not arise, because the appellant received no categorical assurance from a person in a position to give such an assurance. Furthermore, the relevant provisions of the Terrorism Act 2006 were sufficiently certain, and the CPS had considered the appellant’s mental state when deciding to charge him. Leave to appeal was refused.
R v C [2019] EWCA Crim 623
The judgment, available here, was handed down by Simon LJ on 9 April 2019.
The appellant had been convicted of 13 counts of sexual activity with a child and sentenced to a total of 9 years’ imprisonment. He appealed against the convictions on the grounds that the court had misapplied the hearsay provisions in s. 116(5) of the Criminal Justice Act 2003 (‘CJA 2003’), and that the court was wrong to not discharge the jury where the jury became aware of a previous allegation against him of a similar nature. The appeal was dismissed.
The appellant was convicted of 13 counts of sexual activity against his two step-daughters, G and C. G committed suicide shortly after reporting his abuse in a police interview. Her suicide note and the police interview transcript were left to the jury as hearsay evidence. The appellant argued that although G was dead and so her evidence potentially admissible as hearsay under the gateway in s. 116(2)(a) CJA 2003, her death was caused by the very person in support of whose case it was sought to give the statement in evidence, and was therefore rendered inadmissible by s. 116(5) CJA 2003. The trial judge admitted the interview under the statutory gateway, and admitted the note too on the basis that the words ‘the current situation is too much to handle’ in the note showed that G’s suicide was not brought about by the prospect of giving evidence, but because of all of the events flowing from her disclosure of the appellant’s offending.
The appellate court upheld the decision of the trial judge. The phrasing of s. 116(5) makes it clear that the person referred to in that provision will be D or someone acting on their behalf. Section 116(5) does not therefore apply when the statement-maker commits suicide. Further, while the suicide note contained accusative, strong, and emotive language, the trial judge properly considered both the risk of the unreliability of both pieces of evidence and the extent to which they could be tested and assessed.
After the appellant had given evidence, a juror wrote a note to the trial judge asking him to explain a text message that had appeared in evidence, but the significance of which had not been appreciated by counsel or the judge. It transpired that the appellant had previously been accused of sexual assault by a member of staff at the bar where he had then worked. The defence applied to discharge the jury, as the text message and the juror’s note had the effect of introducing bad character. The prosecution considered that the appropriate course was to give a robust jury direction. The trial judge ruled that there was an overwhelming interest in continuing the trial, and directed the jury to disregard the note and the text message.
The appellate court made four points: (i) the appellant’s good character was an important issue in the case; (ii) the text and the note had the potential to invite speculation as to that good character; (iii) the matter arose by accident; however (iv) the matter was dealt with promptly and effectively by the trial judge. The issue was one for the trial judge to deal with at his discretion, and on the facts the appellate court could not fault his decision. The conviction was safe and the appeal was dismissed.
Cunliffe v Criminal Cases Review Commission [2019] EWHC 926 (Admin)
The judgment, available here, was handed down by Sir Brian Leveson P on 11 April 2019.
The claimant challenged the decision of the CCRC not to refer his joint enterprise murder conviction to the Court of Appeal (Criminal Division) on the grounds that the CCRC had misapplied the post-Jogee “substantial injustice” test, and were incorrect in finding that that appellate court was not likely to overturn his conviction. The claim was dismissed. On the evidence available, and on the basis of the claimant’s defence at trial, the approach of the CCRC could not be faulted.
On 10 August 2017 Garry Newlove was attacked by a group of youths outside his house, beaten to the ground, kicked multiple times, and killed. Three of the youths, including the claimant, were convicted of his joint enterprise murder on 16 January 2008. The claimant was sentenced to life in prison with a minimum term of 12 years. An appeal was technically successful in that detention at Her Majesty’s Pleasure subject to a minimum term of 12 years was substituted for his original sentence. He later applied to the CCRC, which decided in January 2018 not to refer his conviction to the Court of Appeal (Criminal Division). He judicially reviewed that decision.
The claimant advanced three grounds. First, that the R v Johnson [2016] EWCA 1613 “substantial injustice” test to post-Jogee CCRC referrals had been misapplied in his case; secondly, that the CCRC’s decision was irrational in finding that there was not a real possibility that the Court of Appeal would find that a different joint enterprise direction might have made a difference at his trial; and thirdly, that the decision was irrational in relation to the claimant’s participation in the offence.
As there was considerable overlap between the three grounds, the Court considered them together. The Court held that the CCRC was entitled to take into account the nature of the claimant’s defence at trial, namely that he was not present at the time of the attack, which was roundly rejected by the jury. The conclusion that no substantial injustice could be demonstrated was fully open to the CCRC. In particular, the CCRC was entitled to consider the proper inferences to be drawn from all the evidence in relation to intention. The claim for judicial review was dismissed.
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