Weekly Digest: 16 July 2018

The appellants are charged with an offence of entering into funding arrangements connected with terrorism, contrary to s. 17 of the Terrorism Act 2000 (“TA”). The charges allege that the appellants sent money overseas, or arranged to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism. They sought to challenge a pre-trial ruling made by a judge in the Crown Court regarding the meaning of s. 17(b) TA by which it was decided that the expression ‘reasonable grounds to suspect’ in that provision meant that it is sufficient, on the information known to the accused, if there exists, assessed objectively, cause to suspect that the money may be used for the purposes of terrorism. The Court of Appeal (Criminal Division) ([2017] EWCA Crim 129) upheld the judge’s ruling.

The appellants contended that the phrase means that the accused must actually suspect, and for reasonable cause, that the money may be used for terrorism; the Crown argued that the reasoning of the Judge and the Court of Appeal should be followed. In the Court’s unanimous opinion, the Crown’s contention was correct. The words of s. 17(b) TA suggest an objective test for mens rea at first sight. Thus, it was difficult to see this statutory provision as one which is silent as to the intent required for the commission of the offence. Thus, the appellants’ contention that it was necessary to revert to principles of statutory construction was unmeritorious.

At [24], the Court warned against supposing that the form of words used in s. 17(b) TA was a mechanism for creating an offence of strict liability. Rather, the accused’s state of mind is relevant for s. 17(b) TA; the requirement of an objectively assessed cause for suspicion focuses the attention on what information the accused had. That requirement is satisfied when, on the information available to the accused, the reasonable person would suspect that it might be used for terrorism.

On 8 January 2008, the applicant, along with two co-defendants, Valentine and Taylor, were convicted of the murder of a man named Ward, who was shot dead at his home in Clacton, Essex on 21 March 2006. The evidence, accepted by the jury at trial, was that a group of men, of which the applicant, Valentine, and Taylor were a part, had approached the door of Ward’s house and the applicant himself had discharged, accidentally, a shotgun which hit and killed Ward. The basis of conviction was that the members of the group had known about the presence and the proposed use of a loaded firearm, a fact which they had discussed before.

On this appeal, the applicant sought to adduce fresh evidence, namely witness statements, pursuant to s. 23 of the Criminal Appeal Act 1968 (“the 1968 Act”) which tended to show that, at the time Ward was shot, he was not actually present at the house but some 50 miles away at a restaurant at Southend-on-Sea. The reason he had told the jury at trial that he was at the scene of the shooting and that he had fired the fatal shot, albeit by accident, was because he and his family had been threatened and subjected to violence by Valentine.

The statements of a Matthew Jones (the applicant’s brother) and Witness A were to the effect that they had met the applicant in a restaurant in Southend-on-Sea at around 2100 on 21 March 2006. This was apparently corroborated by a Mr Locke, who had, by chance, seen them there in passing. In rebuttal, the prosecution sought to adduce further evidence; this consisted of correspondence between the applicant and Witness A dating from 2007, transcripts of telephone calls made by him from prison in 2016 and 2017, and transcripts of covert recordings of personal and family visits to him whilst he was on remand awaiting trial.

The first thing the court noted in relation to Witness A’s evidence was that it was undermined by the fact that she had been a relationship with the applicant. It was, further, totally discredited by the material disclosed by the prosecution; the letters showed that she knew that the applicant was involved in the shooting, the transcripts of the prison visits made no reference to the alibi defence of which he was supposedly fully aware, and the telephone material revealed that he believed his appeal had no prospect of success, not remarks of a man who knows he has a true alibi. The evidence of other witnesses could not begin to compensate for these deficiencies. Accordingly, the Court refused to accept the applicant’s fresh evidence under s. 23 of the 1968 Act.

As for the evidence in respect of intimidating acts, which forced the applicant’s false account at trial, the Court considered the argument made by the applicant false for three reasons:

• the prison visit recording revealed the applicant had agreed that Valentine could blame the applicant for shooting Ward;
• the recordings further showed that, in considering what defence to run, the applicant had sought to protect Valentine; and
• there was no mention of any threats or acts of violence during the period at which the intimidation was said to be at its height.

The Court concluded that the applicant’s grounds were ‘unarguable’.

The appellant was the proprietor of a five-floor terrace building in Tower Hamlets, which, in 2009, he sought to convert into a boutique hotel. In 2014, the appellant was informed of the following defects with the premises’ compliance with fire regulations:

• the lift shaft was not fire resistant;
• the external fire escape was not fire resistant;
• the enclosed yard at the back of the premises was not a place of safety both because of its physical nature and because the appellant had no right to use it;
• the external door to that yard was locked; and
• the fire alarm system was not operational.

It was made clear to the appellant that the problems needed to be addressed and under no circumstances, until they had been, should anyone be allowed to use rooms other than those on the ground floor. The appellant assured the inspectors that the matters would be resolved, and he would not rent those rooms. Later in 2014, inspectors returned. None of the problems had been resolved and had in fact been compounded by the fact that the fire alarm system, while operational, was inadequate. Further, rooms on the upper floors and basement were occupied.

The appellant pleaded guilty to three counts of failure to take reasonable general fire precautions to ensure that premises are safe, contrary to articles 4(1)(c), 8(1)(b), and 32(1)(a) of the Regulatory Reform (Fire Safety) Order 2005 (“the Order”) and one count of failing to equip premises appropriately with firefighting equipment and with fire detectors and alarms, contrary to articles 13(1)(a) and 32(1)(a) of the Order. As a result, the appellant was sentenced to six months’ imprisonment suspended for 18 months, with a tagged curfew for 6 months, together with a fine of £250,000 and costs of £14,210. He now sought to appeal against that sentence on the basis that it was manifestly excessive.

The Court made some general remarks regarding sentencing in fire safety cases, as there are no sentencing guidelines. Endorsing the approach taken in R v. Whirlpool UK Appliances Ltd [2017] EWCA Crim 2186, [2018] 1 WLR 1811 at [7] – [9], first a court must consider culpability, taking into account the nature of the breach; second, the seriousness of the harm risked and the likelihood of that harm arising; third, and finally, whether the offence exposed a number of workers or members of the public to risk and whether the offence was a significant cause of the actual harm.

Applying those principles to this case, it was clear culpability was high in this case and as was the harm risked too; the appellant had a long-standing appreciation of the importance of fire safety regulations and, in light thereof, it was particularly inapt for him, the person responsible for fire safety, to seek to shirk responsibility for taking appropriate precautions. Further, even though on specific notice of the deficiencies, the appellant had breached his promise to ensure the property was not used. However, the Court concluded that the fine imposed, which, taking into account the discount of 20% for a guilty plea, would have originally stood at £300,000, was a manifestly excessive starting point. Rather, £200,000 was an appropriate starting point; considering the appropriate 20% discount for a guilty plea, a £150,000 fine was substituted instead. No alteration was made to the order for costs or the curfew requirement.

Mr Dempsey, the respondent, is a US citizen. On 23 June 2016, a grand jury, sitting in the Eastern District of California, returned an indictment charging the respondent with a single offence, namely making a false statement involving international terrorism contrary to Title 18, United States Code, Section 1001. The context to the charge was that the respondent had allegedly lied during an interview to an FBI agent about travelling to Syria with the intention to fight; he had in fact joined a group and engaged on fighting on at least two occasions.

Based on that indictment, the US Government, the appellant, sought his extradition. On contending the extradition request, the DJ decided that, if committed in the United Kingdom, the alleged conduct would not amount to a criminal offence such that the offence was not an extradition offence. He rejected the arguments that the request was politically motivated so as to offend s. 81 of the Extradition Act 2003 and/or was an abuse of process of the court. The US Government appealed on the basis that the offence was materially similar to the offence, in this jurisdiction, of perverting the course of public justice.

Actus Reus

The mere fact of lying to a police officer or other investigator may not of itself disclose the offence of perverting the course of justice. But that a lie is capable of constituting the necessary conduct is clear. For instance, a common form of the charge as preferred in this jurisdiction relates to witnesses who deliberately provide false statements to an investigator (R v. Robinson (1937) 2 Jo. Crim. Law 62). Lies (or other acts) which obstruct investigators and the investigation are themselves capable of amounting to the relevant conduct.

In this case, the lies told by the respondent went beyond the mere fact of lying; he said things that had the tendency to put the FBI on the wrong track. For example, he had told the FBI agent that he had asked his brother to take certain steps in relation to the US Department of State. As a result, the FBI investigation was liable to be diverted by fruitless inquiries to the Department. Although the US offence was not precisely the same, the English common law offences includes the elements thereof. Given that the Court was satisfied that the lies told by the respondent did have the tendency to pervert the course of public justice, the lesser nature of the offence for which extradition was sought did not affect the outcome. The appellant succeeded on this issue.

Mens Rea

The US offence requires a wilful act on the part of the respondent; i.e. a deliberate act committed in the knowledge that it was unlawful. The common law offence of perverting the course of public justice can only be committed if the act is committed with the intent to do so. It is sufficient to show that the defendant intended to pervert the course of public justice in a general sense. In this case, there was ample material to establish that the FBI were investigating participation by US citizens in the conflict in Syria. Further, the irresistible inference was that the respondent was aware that the was part of such an investigation, even if he did not know its precise scope. The appellant succeeded on this issue.

Extra-territoriality

In the Court’s view, if the respondent had been a British citizen and he had lied to a British police officer making investigations which could have led to proceedings in this jurisdiction, he would have been liable to prosecution for perverting the course of public justice. The appellant succeeded on this issue.

The respondent also sought leave to cross appeal on the DJ’s rejection of his supplemental grounds (i.e. that extradition was barred by operation of s. 81 of the Extradition Act and/or was an abuse of process); leave was summarily denied (at [18] – [19]). There was no evidence that the extradition was politically motivated, and it was not an attempt to usurp the provisions of the statutory framework.

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