This week’s digest considers three judgments; two of the Court of Appeal (Criminal Division) and one of the High Court in Northern Ireland. In Twigg the court consider the admissibility of blood samples unlawfully obtained by the police in breach of section 7(3) of the Road Traffic Act 1988. In Farrugia the court considers whether a victim suffered significant psychological harm in the context of an aggravated burglary. Finally, in XX’s Application for Habeas Corpus the High Court in Northern Ireland considers the interpretation of Article 42(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (materially identical to section 41(6) of the Police and Criminal Evidence Act 1984) and whether the custody time limit pauses when detainees are transferred to hospital for psychiatric assessment, or in fact do not receive medical treatment at hospital.
R v Twigg [2019] EWCA Crim 1553
The judgment, available here, was handed down by Singh LJ on 13/09/19.
An appeal against conviction was dismissed on the basis that the trial judge had not been wrong to admit blood samples unlawfully obtained by the police in breach of section 7(3) of the Road Traffic Act 1988. The decision of the Divisional Court in Murray v DPP [1993] R.T.R. 209 that non-compliance with section 7(7) of the Road Traffic Act 1988 rendered a breath specimen inadmissible is not authority for the proposition that any breach of any of the procedures associated with the obtaining of specimens under section 7 of the Road Traffic Act 1988 means that a specimen is automatically rendered inadmissible in evidence in criminal proceedings.
The appellant had been convicted of causing death by careless driving whilst over the specified limit for a drug. At his trial the prosecution had relied upon blood samples unlawfully obtained by the police in breach of section 7(3) of the Road Traffic Act 1988. The trial judge dealt with the admissibility of the evidence by considering whether it needed to be excluded under section 78 of the Police and Criminal Evidence Act 1984, concluding that it did not. The appellant submitted that the trial judge had erred, and that the evidence was inadmissible as a matter of law.
The appeal was dismissed. Under both domestic law and the ECHR there is no automatic rule requiring the exclusion of evidence because of the manner in which it was obtained ([38] to [40]). The manner in which it was obtained will be a relevant factor to be taken into account when performing the exercise required by section 78 of the Police and Criminal Evidence Act 1984 and Article 6 of the ECHR but ultimately the question for the court is whether there will be a fair trial ([44]). The decision of the Divisional Court in Murray v DPP [1993] R.T.R. 209 that where the defendant had not been warned, in accordance with section 7(7) of the Road Traffic Act 1988, that a failure to provide a specimen of breath might make him liable to prosecution, that the specimen of breath was not admissible even if there had been no prejudice caused was distinguishable, as section 7(7) of the Road Traffic Act 1988 is in substance a statutory exception to the normal principle against self-incrimination. The decision in Murray is not authority for the proposition that any breach of any of the procedures associated with the obtaining of specimens under section 7 of the Road Traffic Act 1988 means that a specimen is automatically rendered inadmissible in evidence in criminal proceedings ([59] to [62]). In all the circumstances the trial judge had been entitled to refuse to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984. If not for lies told by the appellant to the healthcare professional it is likely the condition in section 7(3)(c) of the Road Traffic Act 1988 would have been met ([73]).
R v Farrugia [2019] EWCA Crim 1540
The judgment, available here, was handed down by Freedman J on 02/07/19.
The Court of Appeal dismissed an appeal against sentence finding that the victim had suffered significant psychological harm as a result of an aggravated burglary.
The offender, having attended at a home pretending to be a postman, forced entry into the house when the door was answered by the victim. He forced the victim to the ground, while two other men entered the house. He and the others then marched the victim through various rooms of the house, apparently looking for something, forcing her to be quiet, before then binding her wrists behind her and leaving her in the house. The entire incident lasted about 10 minutes and the victim thought she was going to be kidnapped. She sustained grazes to her back and shoulder and nerve damage to one foot, leading to a loss of feeling. The appellant pleaded guilty to aggravated burglary and was sentenced to 7 years and 6 months’ imprisonment. The offender appealed against his sentence on the basis that the judge had erred in categorising this case as one of greater harm for the guideline due to the victim having suffered significant psychological harm. The offender submitted that the only indicator of greater harm was that the victim was at home and was moved around during the search, and that if greater harm was present it was at the lower part of the scale.
The offenders appeal against sentence was dismissed. His argument ignored the terrifying nature of the victim’s ordeal and its consequences, which included severe anxiety for the victim, affected sleep, having to take time off work and not being able to be at home alone due to fear and stress ([7] and [13]).
XX’s Application for Habeas Corpus [2019] NIQB 31
The judgment, available here, was handed down by McCloskey J on 21/03/19.
Article 42(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (which is materially identical to section 41(6) of the Police and Criminal Evidence Act 1984, and provides that the custody time limit pauses during the period when a detainee is transferred to hospital for medical treatment) applies to transfers to hospital for psychiatric assessments, and to transfers where no medical treatment in fact results, provided that the detained person was assessed at the police station as potentially requiring medical treatment.
The appellant challenged the legality of his continuing police detention on the basis that the 48 hours for which he could be held in police detention without judicial authorisation had expired under Article 42 of the Police and Criminal Evidence (Northern Ireland) Order 1989. During his detention he had twice been to hospital, on the first occasion for a mental health assessment which had not occurred, and where he received no treatment, and on the second for a psychiatric assessment. Article 42(4) of the 1989 Order (which is materially identical to section 41(6) of the Police and Criminal Evidence Act 1984) provides “When a person who is in police detention is removed to hospital because he is in need of medical treatment, any time during which he is being questioned in hospital or on the way there or back by a police officer for the purpose of obtaining evidence relating to an offence shall be included in any period which falls to be calculated for the purposes of this Part, but any other time while he is in hospital or on his way there or back shall not be so included.” The appellant submitted that “medical treatment” did not encompass psychiatric assessment for that purpose, and that regardless the appellant had not in fact received medical treatment on the first occasion.
The appeal was dismissed. “Medical treatment” in this context clearly encompasses psychiatric/mental state assessment, examination and interview. To exclude psychiatric conditions would give rise to a quite unjustifiable anomaly, indeed an absurdity. Further, the removal of a detained person from police detention to a hospital “because he is in need of medical treatment” does not require a flawless prediction on the part of the relevant staff that medical treatment will be provided. An assessment at the police station that the detained person may require medical treatment will suffice. Even if “medical treatment” does not materialise, this will not be an invalidating factor unless, possibly, a misuse of power of some material kind or improper motive can be demonstrated ([15]).
Independent Reviewer for Terrorism Legislation rejects calls to change treason laws
Jonathan Hall QC, the Independent Reviewer for Terrorism Legislation told an audience at the Royal United Services Institute (RUSI) that recommendations to amend treason laws to prosecute Britons who betray the country through acts of terror should be rejected. He said that prosecuting a treason offence would “risk politicising and complicating criminal prosecutions with arguably limited benefits”.
The full piece can be read here.
Crown Prosecution Service publishes annual Violence against Girls and Women report
The latest figures on prosecutions involving Violence against Women and Girls have been released this week by the Crown Prosecution Service. The new figures show a 15.1 per cent fall in prosecutions and a 14.3 per cent drop in convictions across the domestic abuse, rape, and sexual offences caseload. The Director of Public Prosecutions has announced that Her Majesty’s Crown Prosecution Service Inspectorate will hold a review of rape charging decisions to increase accountability and reassure victims of sexual offences.
The full piece can be read here.
Homophobic hate crime charges fall as reports soar
A freedom of information request from BBC Radio 5 Live Investigations shows that recorded reports of homophobic abuse in the UK increased from 5,807 in 2014-15, to 13,530 in 2018-19 while the number of prosecutions fell from 1,157 to 1,058 – from 20% of all reports to 8%. These figures are released as police forces continue to urge victims to come forward.
The full piece can be read here.
