Weekly Digest: 16 March 2020

Following the execution of a search warrant at the appellant’s home, the appellant was found to be in possession of 10 grams or less of Hexamethylene Triperoxide Diamine (“HMTD”) which he had produced in a laboratory in his garden shed using chemicals purchased online. HMTD is a sensitive explosive that can easily be detonated. The appellant’s explanation was that his plan was to conduct experiments with the HMTD he had made in his back garden. The appellant was charged with two offences contrary to section 4 of the Explosive Substances Act 1883: that he knowingly had in his possession or under his control an explosive substance, in such circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object. It is a defence to a charge under section 4 for a defendant to show that he made or possessed the explosive substance for a lawful object. At a preparatory hearing in the Crown Court the judge ruled that experimentation and self-education were not capable of being lawful objects for the purpose of section 4 of the 1883 Act. That decision was upheld in the Court of Appeal. The appellant appealed to the Supreme Court.

By a majority of three to two the Supreme Court allowed the appeal. A “lawful object” is any object or purpose which is not unlawful ([28]). The fact that the making or possession of the substance may involve the commission of regulatory offences does not prevent an accused who seeks to make out the defence under section 4(1) from relying on an object/purpose at a more general level which is lawful ([28]). It is for the defendant to show, on the balance of probabilities, that he had a lawful object ([27]). The prosecution may, however, seek to show that this was not in fact his object or that it was not his sole object and that his object, as correctly understood, involved an unlawful element ([29]). The prosecution may argue that although the stated object was lawful, the pursuit of that object would involve such obvious risk to other people or their property that the inference should be drawn that the object was mixed and not wholly lawful ([29]). In a case of mixed objects where one of the objects is unlawful or where unlawfulness taints the potentially lawful object on which the accused seeks to rely the defence will fail ([38]).

Experimentation and self-education, including to satisfy one’s curiosity, may be a lawful object and the accused does not have to identify precisely how the explosives will be used in future and that this will be lawful ([33], [34]). The accused only has to identify a relatively general object for which the explosive substances are to be used, that the object is lawful, and that it was in the reasonable contemplation of the accused that the explosive substances might be required for that purpose and could lawfully be used for that purpose; they do not have to demonstrate precisely how they might come to be used or guarantee that such use would necessarily be lawful ([34]). The absence of a precise plan as to how the substance was to be used in the course of pursuing those purposes might be a relevant matter to be taken into account at trial. But it would be for the jury to assess, on the evidence at trial, whether the defence was made out despite the absence of precise details as to proposed use ([40]). In the instant case, the appellant’s defence that he intended to use the explosives in small amounts to produce insignificant detonations at a lawful level for the lawful object of experimentation and self-education should have been left to the jury ([41]).

G (aged 20) had been intoxicated in town with B who had been carrying a knife. The two had approached another man, N, and B attempted to sell him drugs. They were initially rebutted and when B tried to trick him into buying drugs an argument broke out and N punched B hard in the face causing his nose to bleed. G and B retreated but then approached N and his friends again. B produced his flick knife and was uttering threats, shouting “I’ll stab any of you”. N’s friend CB engaged B in a fight. B stabbed CB multiple times but few present were aware this had occurred. When CB was on top of B, B still attacked him, G began kicking CB and repeatedly stamping on him, in an apparent attempt to dislodge him. He desisted before CB got off B and staggered away. CB died of his injuries shortly afterwards. B was convicted of murder and G was convicted of manslaughter and having an article with a blade or point, contrary to section 139(1) of the Coroners and Justice Act 1988. The judge found he could not be sure G knew of the knife and sentenced him to 3 years and 6 months detention in a young offenders’ institution for manslaughter with 6 months detention concurrent on the bladed article offence. The Solicitor General sought leave to refer the sentence imposed on G as unduly lenient.

The Court of Appeal refused leave. The Solicitor General had pointed out that there is no reference in the unlawful act manslaughter guideline to the time and location of the offence in the lists of aggravating factors notwithstanding the observations of the court in R v Appleby [2010] 2 Cr. App. R(S) 46 that they could be significant aggravating factors. The court disagreed it was necessary therefore to refer back to Appleby to ensure these factors were taken into account ([32] – [33]). The location of a crime is always relevant, the extent to which it is an aggravating factor will depend on the facts of each case. As to timing, the offence in this case would have been no less serious had it taken place in the middle of the day in the middle of town. The absence of specific references to time and location is not an omission or a defect in the guideline. The guideline reads “Below is a non-exhaustive list of additional elements providing the context of the offence and factors relating to the offender. Identify whether a combination of these or other relevant factors should result in any upward or downward adjustment from the sentence arrived at so far”. In every case there are a number of potentially aggravating factors. It is for the judge to identify them and to accord them the weight he or she considers appropriate ([37]). Sentencing remarks should contain only that which is relevant. The judge set out the city centre context of the case at the beginning of his remarks and that was all that was needed to make clear that he had well in mind the fact that this offence took place in a city centre at night when people were around. There is no omission or defect in the guideline. There was no error by the judge ([40]). The judge had not been required to take into account that there was a background of other criminality namely B’s earlier drug dealing. That had nothing to do with the respondent ([41]). G’s involvement was not akin to using a shod foot on an injured victim. He kicked and stamped when CB was on top of B who was, as he thought, punching CB from underneath. He caused no injury ([42]). Further, he was to be sentenced on the basis that he had the level of maturity of a 19-year-old ([45]). While any judges would have passed a consecutive sentence in respect of the lock knife or would have imposed a longer sentence for manslaughter and a concurrent sentence for the bladed article the sentence was only lenient, not unduly so ([48]).

Section 1(1)(a) of the Abortion Act 1967 provides that a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. The Chief Medical Officer, acting on behalf of the Secretary of State, had advised doctors that the words “the pregnancy has not exceeded its twenty-fourth week” should be interpreted as meaning that a woman will have exceeded her 24th week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24th week of pregnancy. The appellant challenged this interpretation, arguing a pregnancy only exceeds its twenty-fourth week when a woman is 24 weeks + 1 day pregnant. The appellant’s challenge was dismissed in the High Court but permission was granted to appeal to the Court of Appeal (Civil Division).

The Court of Appeal upheld the decision of the High Court. There is no ambiguity in the wording of the phrase “the pregnancy has not exceeded its twenty-fourth week” in section 1(1)(a) of the 1967 Act. Plain English words are used ([58]). There is nothing in the evidence to suggest the words of section 1(1)(a) were intended to carry a specialist meaning. That being so, there is no reason to go outside the statutory language in order to construe the same ([59]). The core premise underlying the appellant’s submission is that in calculating the days of pregnancy for the purposes of section 1(1)(a) no account should be taken of day 0 because it is inevitably less than a full day. This is a premise which runs counter to the calculation of the gestational age of a foetus for the purpose of pregnancy dating, which prevails in the United Kingdom and beyond. It runs counter to the way in which individuals calculate their age. As was stated on behalf of the Secretary of State, medical science cannot pinpoint when a pregnancy begins, so the clinical convention of counting back to the first day of the LMP as day 0 is a construct, but one that is necessary in order to provide certainty. Certainty is critical for the interpretation of this penal provision carrying with it, as it does, the sanction of a criminal prosecution and imprisonment ([61]). The expert evidence shows that as standard practice clinicians describe the woman as being in her 24th week when she is 23 weeks + 0 days to 23 weeks + 6 days. At 24 weeks + 0 days she enters the 25th week of pregnancy. It follows that at 24 weeks + 0 days the woman has “exceeded her 24th week of pregnancy” and this is the 25th week of pregnancy. This is accepted medical terminology not only in the UK but it is also a common convention internationally. It corresponds with the usual way of referring to somebody’s age ([62] – [65]). The legal construction of the words “the pregnancy has not exceeded its twenty-fourth week” should be consistent with clinical practice, in particular as to the calculation of the gestational age of a foetus. It is necessary in order to provide certainty in respect of a penal statute, the interpretation of which has serious consequences for vulnerable women and medical practitioners ([70]). The correct construction of the words “the pregnancy has not exceeded its twenty-fourth week” in section 1(1)(a) of the 1967 Act is that a woman will have exceeded her 24th week of pregnancy once she is 24 weeks + 0 days pregnant, which will commence from midnight on the expiration of 23 weeks + 6 days ([73]).

Plans to simplify the country’s complex sentencing laws moved a step closer as Ministers have introduced a new Bill into Parliament.

The full piece can be read here.

Judges could be handed wider powers to take the initiative over contempt of court in draft rules proposed by the Civil Procedure Rule Committee

The full piece can be read here.

The Sentencing Council have launched a consultation to determine its future direction, balancing its priorities against limited resources. The consultation, which will run from 10 March to 9 June 2020, is seeking views on where the Council should focus its efforts in the next 10 years.

The full piece can be read here.