Weekly Digest: 16 April 2018

This was an application for permission to appeal against conviction on the basis of fresh evidence that rendered the conviction unsafe. The applicant was convicted of reckless arson and doing an act tending to pervert the course of justice. The prosecution case at trial was that she had set fire to her home in the early hours of 25 October 2014, with her parents asleep inside; she then immediately blamed her boyfriend by falsely suggesting that he had threatened to kill her and her family. At trial, the prosecution relied on an expert report which purported to show that the applicant’s iPhone connected to the WiFi router in her room at 0215, placing her within 25 metres of the premises, which was the range of the router. She was alleged, while intoxicated, to have entered the house, gone through to the back garden, collected a petrol can from the shed, and set the fire at the bottom of the stairs. At 0221, she rang her friend in hysterics over the fire, ‘screaming about her parents and her cat’.

An expert report obtained by the applicant, however, tended to show that the range of the router was considerably more, such that the applicant could have been up to three times the distance away from the premises when her iPhone connected to the router. In the court’s view, in light of this evidence, the timing postulated by the prosecution required the appellant to accomplish a good deal more whilst she was drunk in a very short period of time than was probable. Thus, the court concluded that the fresh evidence, which they accepted under s. 23 of the Criminal Appeals Act 1968, undermined an important enough part of the prosecution case that the conviction was rendered unsafe; the appeal was allowed, and the conviction quashed.

This appeal concerned the application of the Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (“the Guideline”). On the 24 April 2017, the applicant (ATE) pleaded guilty to a count of failure to provide a suitable and sufficient risk assessment as required by regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999. No evidence was offered in respect of a further count on the indictment: failing to discharge the same duty to non-employees contrary to s. 3(1) of the Health and Safety at Work, etc. Act 1974 (“the 1974 Act”). ATE was sentenced to a fine of £475,000. The proceedings arose out of a tragic accident involving a Mr Price, who was killed on the applicant’s premises while employing a particularly risky method of removing the cab from flatbed trucks. ATE’s employees undertook the same work on site, but using substantially safer methods than those employed by Mr Price.

ATE had pleaded not guilty to the offence under s. 3(1) of the 1974 Act, but was invited to consider pleading guilty to the Regulation 3(1)(a) offence, which the company did. In the course of discussion between the parties, it was agreed that:

(i) the case fell within the category of Low Culpability;

(ii) the Seriousness of Harm risked fell into Level A; and

(iii) as for causation, the offence was to be regarded “as having more than minimal, negligible or trivial connection with the accident leading to Mr Price’s death, but … it was not a major cause.”

However, the judge, in sentencing, assessed the culpability as high, although not disagreeing with the parties as to the seriousness of the harm. He assessed the company as a medium organisation and, taking into account his view that ATE’s conduct was a substantial cause of the harm, imposed a fine of £750,000; the reduced figure, reduced by a third to take into account ATE’s guilty plea, was £475,000.

The appellant appealed against that sentence on the basis that the judge had materially departed from the basis of the plea and had fallen into error in a number of factual respects. The respondent contended that the judge was entitled to reach the conclusions he reached.

The court allowed the appeal to a limited extent and substituted a fine of £200,000. First, although, as a matter of principle, the judge was entitled to depart from the basis of plea, the judge’s approach was misguided in that he focussed on the method of work followed and the frequency of the work undertaken by ATE’s own employees as distinct from the method of work adopted by Mr Price. This led to the judge straying to sentencing the appellant on a count on which no evidence was offered. There was, in the court’s view, no sufficient justification for the judge categorising this case as one of high culpability.

Second, with regard the judge’s conclusion on causation, the judge fell into error, again, in focussing on the work done by Mr Price rather than ATE’s employees. The evidence fell well short of showing that his activity exposed a number of workers or members of the public to the requisite risk of harm.

Pulling the threads together, in the court’s judgment, this was a low culpability case falling within harm category 2. The starting point was thus £40,000, with a category range of £14,000 to £100,000. To reflect causation and the fact that fines of this sort must have a real economic impact, the right course was to move harm up to category 1 and to the top of that range – i.e. £300,000. Giving credit for the guilty plea, the appropriate fine was £200,000.

The defendant was convicted of five counts of obtaining a money transfer by deception, contrary to section 15A of the Theft Act 1968.  The offending arose as a result of the defendant either buying or remortgaging six different properties by providing false details to lenders that dishonestly inflated his income.  Confiscation proceedings culminated in an order for the defendant to pay £703,501.  The remortgage loans in relation to three of the properties had either been repaid or would within a short period of time be repaid.  It was submitted on behalf of the prosecution that the correct approach, applying Waya [2013] 1 AC 294, was to work out the extent of the increase in the value of the equity attributable to the fraudulently acquired mortgage loan and then to add on any rental income received.  Where the defendant is soon discovered and quickly repays the loan, it was submitted that he may be in a position similar to that of a thief or benefit fraudster who makes full reparation or restores the stolen goods and there is no benefit, but where not soon discovered and he enjoys the benefit of the loan for a number of years, it will be otherwise; he has not been denied the profit of his crime. The prosecution submitted that it would be proportionate for a confiscation order to be made, but it would be unjust and disproportionate to require him to pay the same sum again.  The Waya analysis as applied to acquisition mortgages should be applied to remortgage cases as well. The fact of past or prospective repayment was submitted to be irrelevant. Further, or alternatively, the prosecution contended that it would be appropriate to apply a pecuniary advantage analysis. The defendant had at least obtained a pecuniary advantage by the receipt of the loan, which by virtue of section 76(5) of POCA was to be considered as equivalent to a cash sum.

The defendant responded by contending that in relation to remortgage transactions such an approach would result in a disproportionate confiscation order. The correct approach was to limit the benefit to the value of the remortgage obtained. Since the appellant had either repaid the loan or undertaken to do so it was submitted that it would be disproportionate to make any confiscation order in relation to those sums.

The judge ruled that the approach in Waya was to focus on the equity of redemption to which the mortgagor was entitled. Thus upon a remortgage the bundle of rights and liabilities between mortgagor and mortgagee was replaced by a new bundle of rights and liabilities. One equity of redemption was extinguished and another created. The approach of the defendant, described as “technical”, was rejected. The property obtained by the defendant in connection with his criminal conduct was the associated proportion of the increase in the equity of the property.

The Court of Appeal observed that it will in general terms be disproportionate to make a confiscation order when a defendant has restored to the loser any proceeds of crime which he had ever had, or where restitution is assured or certain.  This would not achieve the statutory objective of removing the proceeds of crime but simply be an additional financial penalty.  Dismissing the defendant’s argument, however, the court rejected the submission that there is a fundamental difference because the result of obtaining a loan by way of mortgage as opposed to remortgage is that one obtains an interest or legal title in the property, which is the subject of the mortgage.  It was held that the defendant’s argument ignored the reality of the situation, which is that he did obtain a benefit from the remortgages beyond the loan monies. They allowed him to discharge debts including the original mortgage or other secured debts and to maintain his interests in the properties, which then rose in value. The defence submission also ignored the focus placed by the Supreme Court in Waya on the equity of redemption to which the mortgagor is entitled. On a remortgage, one equity of redemption is replaced with another. It was held that there is no clear materially different legal reality. The fact that there is no change in legal title is not the point. The question is the amount of benefit.

Furthermore, the court stated that it would be counter-intuitive for a court to decide that the benefit figures on three properties should be nil because the loan had been repaid or was shortly to be repaid, and to ignore the defendant’s financial gain arising out of his interest in the properties maintained as a result of or in connection with his fraudulent activities. The defendant had clearly benefited in each case for many years – about a decade in each case – by reference to the increase in the properties’ values over the periods when the fraudulently obtained loan monies were used to maintain his title and interest in those properties.  This was not a question of requiring the defendant to pay the same sum as the repaid loans or loans to be repaid.  Rather, it was a case of requiring the defendant to pay the additional benefit, namely the increase in value of the properties in question that he obtained as a result of or in connection with his criminal conduct.

The government published its legal case for military action after the Prime Minister declared that strategic air strikes in Syria were a success. The government says that the action was justified on humanitarian grounds.

The full piece can be read here.

The ICC has launched a prosecution against an Islamist militant for the crime of persecution on the grounds of gender, seeking a lengthy jail sentence for forcing hundreds of women into sexual slavery.

The full piece can be read here.

A business man has won the right to remove search results about a criminal conviction, conspiracy to account falsely, in a case that is expected to have wide-ranging repercussions.

The full piece can be read here.

The acquittal of two Irish international rugby players has caused collective anger, with demonstrations across the Republic of Ireland and in Northern Ireland.

The full piece can be read here.