Weekly Digest: 15th July 2019

The claimant’s son, suspected of being involved in a number of thefts, died in a road traffic accident while being pursued by a Metropolitan Police Officer. The deceased, driving a moped, tried to overtake a white van on its nearside. The van moved to avoid the pursuing police car and collided with the moped. The Officer driving the police car was not trained in Tactical Pursuit and Containment (“TPAC”).

An Independent Police Complaints Commission investigation found that the Officer was driving closer to the moped than was safe. The CPS decided that while there was enough evidence to conclude that the Officer was driving dangerously by speeding, tailgating, and driving the wrong side of the central reservation, there was not enough evidence to determine that the dangerous driving caused the deceased’s death. It was the deceased’s choice to try and overtake the van; it was not that he tried to take evasive action to avoid the police car. At any point during the pursuit he could have stopped safely. Further, it would not be in the public interest to initiate a prosecution. A formal Review upheld the CPS’s original reasoning. The claimant challenged this Review.

The claimant submitted that the Review failed to take into account the fact that the Officer was not TPAC trained, and the pressure placed upon the deceased and the van driver by the Officer’s driving. It was necessary for the van to move because of the police car’s pressure. The defendant argued that the CCTV evidence showed that the police car was at some distance behind the moped at the time of the collision. The dangerous driving identified by the IPCC and the claimant took place sometime before the collision, as noted in the Review.

The Court noted that it must adopt a “strict self-denying ordinance” towards the constitutional position of the CPS as the prosecutorial decision maker. However, the Court found that the Review decision did not adequately respond to the detailed letter sent by the claimant’s solicitors criticising the original detailed decision of the CPS. It did not provide an analysis of the Officer and the moped derived from the best evidence, nor did it properly consider the evidence of an independent senior police driving instructor provided at the request of the IPCC. The Court held that, as a matter of criminal law, the earlier, dangerous driving was relevant to the issue of causation.

Further, it was an error of law to discount the evidence of the van driver, who stated that he moved to the nearside because of the approach of the police car. Such a move was foreseeable; no test of causation involved the question of whether it was necessary for the van driver to move. The Review ought to have dealt with the van driver’s evidence in discussing causation. The judicial review having succeeded on these grounds, there was no need to consider whether the public interest stage of the Full Code test was met. The Review was quashed and remitted to a different lawyer to be made again.

The offenders (C, E, and G) were convicted, alongside others, in a number of conspiracies to supply drugs, which were uncovered by two major and interlinked investigations into large scale supply of cocaine and heroin in Kent, London, and Sussex. C and E were also convicted of two counts of conspiracy to murder, both of which were motivated by a drug debt in the region of £850,000 which C and E owed to the intended victims. Pursuant to s. 225(2)(b) of the Criminal Justice Act 2003 (“the 2003 Act”), the judge imposed a life sentence for those offences with a minimum term of 14 years’ imprisonment. C renewed his application for leave to appeal against his convictions for conspiracy to murder; both C and E appealed against their sentences on the grounds that the offences were not so serious as to justify a life sentence; and G, who had pleaded guilty to three counts of conspiracy to supply Class A drugs, renewed his application for leave to appeal against sentence.

C’s renewed application to appeal

C’s argument was that his conviction could not survive the acquittals of a number of other defendants on the same counts. The court rejected this argument; it did not follow from the fact that the jury rejected the Crown’s case in respect of those other defendants that C and E were not involved in the conspiracy. Further, the judge’s summing up was impeccable and could not be impeached on any basis.

C and E’s appeal against sentence

The central ground pursued by C and E was that the judge had erred in concluding for the purposes of s. 225(2)(b) of the 2003 Act that the offences justified a life sentence. The judge had not erred in approaching the exercise laid down in R v Burinskas [2014] EWCA Crim 334, 22, but addressed the four relevant considerations in a careful and balanced way. The judge reached a conclusion which led to sentences which were neither wrong in principle nor manifestly excessive.

G’s appeal against sentence

G submitted that the judge had erred in failing to properly identify the category she believed G fell into when passing sentence. That, in the court’s view, was misconceived. Further, the court was satisfied that the judge gave proper weight to the evidence of G’s mental health difficulties and that she gave appropriate credit for G’s plea.

Between 2007 and 2017 two north London gangs engaged in violent clashes. Three weapons were found by the police in 2017 in the hands of the appellants, a mother (CD, aged 46) and her two children (MDN, aged 27, and MC, aged 16), following a number of shootings. Whilst in custody, awaiting trial, the mother made approximately 900 phone calls directing the other two appellants what to do and say in the course of preparation for trial, instructing them to destroy evidence, change phone numbers and erase email accounts. The three appellants were convicted of conspiring to transfer firearms but given leave to appeal against their sentences.

The Court began by noting that sentences for gun offences will be severe and laying down the key principles governing such sentences, according to AG References Nos 128 – 141 of 2015 and Nos 8-10 of 2016 [2016] EWCA Crim 54. First, a sentence of life imprisonment must be considered. Second, if a life sentence is not imposed then a long determine sentence must be. Third, the sentences must be commensurate with the role played by each defendant in any activity relating to the supply of guns. Fourth, a “very long” determinate sentence is required for the leader of any such enterprise. Fifth, a sentence greater than 25 years would be appropriate for a leader if there was any previous conviction for offences involved guns. Sixth, the same level of sentence was appropriate for criminal enterprises entailing converting, acquiring or importing guns. Finally, sentences would vary for defendants assisting in such transactions.

In this case the leader of the conspiracy, MDN, had received a determinate sentence of 20 years. The appellate Court noted that the guns were being used in a decade-long vendetta against a rival London gang; MDN had been involved in this vendetta since its inception; the guns were intended to be used in broader gang related crime; the weapons included a machine gun; MDN was the leading member of the conspiracy and had been involved in at two shootings, one of which had taken place at a public fund-raising event for charity; and MDN had previous convictions arising from gang violence. His appeal was dismissed. The sentence was not excessive nor manifestly so.

CD had received a sentence of 14 years’ imprisonment, essentially for storing the weapons. Her intercepted phone calls revealed her detailed knowledge of the family’s criminal activity. However, the sentencing judge had stated that she was the least involved of the appellants. The appellate Court held that sentences between members of a conspiracy had to be relative. Had MDN been of good character, the starting point would have been 18 years’ imprisonment. Considering this, a starting point of 14 years’ for CD was too high. A greater degree of disparity was justified to properly reflect CD’s role. The sentence of 14 years was quashed and substituted for a total sentence of 11 years.

MC was 16 years’ old at the time of the offending. He was heavily involved in the conspiracy, transferring the guns between different members of the gang. Had he been an adult he would have had a higher sentence. As it was, despite his age, a sentence of 8 years detention could not be said to be manifestly excessive. His appeal was dismissed.

A bar training course designed by the Inns of Court has been given the go-ahead by the Bar Standards Board (BSB).

The Inns of Court College of Advocacy (ICCA) will take applications for the ‘lower cost’ course from December 2019, having received conditional authorisation from the regulator.

The full piece can be found here.

Robinson, whose real name is Stephen Yaxley-Lennon, broadcast reports that encouraged “vigilante action” and “unlawful physical” aggression against defendants in a sexual exploitation trial, according to the judges who found him guilty last week.

More details can be found here.

In the latest session of Prime Minister’s Questions, Labour leader Jeremy Corbyn told Theresa May that this year marked the 70th anniversary of the Legal Aid and Advice Act, which gave everyone access to justice and was an ‘essential pillar of a welfare state and a decent society’. The prime minister said she recognised his concerns, but pointed out that a quarter of the Ministry of Justice’s budget is spent on legal aid.

More details can be found here.

The ‘Neoface’ system used by the Metropolitan police and South Wales police is supplied by the Japanese company NEC, which markets the same technology to retailers and casinos to spot regular customers, and to stadium and concert operators to scan crowds for “potential troublemakers”.

The full story can be found here.