Weekly Digest: 17 February 2020

Jalloh had been subject to a curfew between the hours of 23.00 to 07.00 every day purported to have been imposed under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The curfew was enforced by an electronic monitoring tag and he had been told contravention of it was a criminal offence. Subsequently it was held that the imposition of that curfew under that paragraph had been unlawful. Jalloh then made a claim for false imprisonment for the period in which he had been subject to the curfew. The High Court held that the curfew had amounted to false imprisonment, and this conclusion was upheld by the Court of Appeal. The Secretary of State appealed against the Court of Appeal’s ruling.

The Supreme Court unanimously dismissed the Secretary of State’s appeal. False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant. The essence of imprisonment is being made to stay in a particular place by another person and this can be achieved by many methods ([24]). In this case there was no doubt that the defendant defined the place where the claimant was to stay between the hours of 23.00 and 7.00. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission ([25]). That the claimant did from time to time ignore his curfew for reasons that seemed good to him made no difference to his situation while he was obeying it ([26]). While there is a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction this was not a case of voluntary compliance. The offender had been fitted with an electronic tag, told he could face criminal liability and further immigration detention and the curfew had been backed up by the authority of the State. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal ([27]).

To align the concept of imprisonment for the purposes of the tort of false imprisonment with the concept of deprivation of liberty for the purpose of Article 5 of the European Convention on Human Rights, as the Secretary of State argued the court should, would not be to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. The Strasbourg court has adopted its approach because of the need to draw a distinction between the deprivation and the restriction of physical liberty. However, there is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom it has protected for centuries against unlawful imprisonment, whether by the State or private persons ([33]).

The appellant had been convicted on two counts of kidnapping, one count of carrying an imitation firearm with criminal intent and two counts of false imprisonment. The prosecution’s case was that the appellant, with a co-accused, had on two occasions kidnapped men from a cannabis grow-house and then detained and beat them in a small room, on one occasion using an imitation firearm to force compliance. The co-accused’s police interview, in which he said the appellant had seemed to be in possession of a gun, had been adduced as hearsay evidence against him but not against the appellant. However, before giving his speech prosecution counsel indicated he wanted to address the jury on the basis it was cross-admissible and the judge did not give a ruling or express any view on the issue. In his speech prosecution counsel did suggest the co-accused’s account in interview was true although he did not suggest it was evidence in the case generally or admissible against the appellant. Subsequently the judge ruled that the evidence was admissible hearsay under sections 114(1)(d) (interests of justice) and 119 (inconsistent statements) of the Criminal Justice Act 2003.

Section 114(1)(d) of the Criminal Justice Act 2003 does not only operate prospectively. An application may be made to admit a previous statement even if it is already before the jury ([58]). The judge properly assessed the various factors under section 114(2) ([60]) and gave proper consideration to it not being routine to admit statements in interview by one defendant as evidence against another ([61]). The judge was, however, wrong to admit the interview as a previous inconsistent statement under section 119 ([62]). The section refers to the previous inconsistent statement being “admissible as evidence of any matter stated of which oral evidence by him would be admissible” but does not say that the evidence in question – the previous inconsistent statement – is treated in every respect as if he did give that evidence ([62]). Using section 119 to make the previous inconsistent statement by the co-accused in interview admissible as evidence against the appellant was inconsistent with what Hughes LJ said in R v Y  [2008] EWCA Crim 10 at paragraph 48 to the effect that out of court statements which did not amount to confessions would only be admissible against another defendant “under section 114(1)(d) providing of course the interests of justice test was satisfied” ([63]). Finally, it is unfortunate that the application to admit the evidence was made so late ([65]). However, what matters is the extent to which the lateness of the application can be said to have caused irremediable prejudice to the appellant ([66]). The appellant’s case or his evidence would not have been presented differently if he had been on notice ([66]). Although there was some prejudice to the appellant from the lateness of the application, this was not sufficiently serious to warrant refusal of the application under section 114(1)(d); any prejudice could have been cured by an appropriate warning direction ([70]). Although for tactical reasons the appellant had not asked for directions it would have been better for the judge to give the jury a warning direction addressing the limitations of the interview and the need to consider the co-accused’s explanation for his lies ([71] to [73]). The judge should also have given the standard direction in relation to the other defendants’ interviews, although they were only evidence against the particular defendant being interviewed ([75]). However, given the evidence against the appellant was strong the failures to do so did not render the conviction unsafe ([77]).

The appellant had been convicted of conspiracy to possess prohibited firearms with intent to endanger life, having earlier pleaded guilty to conspiracy to possess firearms. Most of the prosecution facts were agreed, which was that the appellant and E had been friends, and that they had attempted to have delivered to a house two packages containing five handguns hidden inside soft toys and that the appellant had been arrested in possession of a holdall containing four handguns and relevant ammunition. The defence case was that the appellant had no intention that the firearms would go to criminals to be used in crime to endanger life and claimed that E was responsible for sending WhatsApp messages on his phone to another to that effect. He claimed that E told him the guns were going to be sold to military and security personnel and others with licences. The appellant argued that directions given to the jury in respect of circumstantial evidence were wholly inadequate, that the hearsay directions were defective and that the direction given in respect of lies told in his first defence statement was defective.

Although the judge could have taken a more systematic approach to his summing up, viewed overall, the summing up was not confusing or inadequate, nor did it render the trial unfair or conviction unsafe ([62]). It would have been better had the direction in respect of circumstantial evidence been written down but the question for us is whether or not the direction was sufficient ([36]). The judge had identified and set out in detail the defendant’s account and the need to be sure of things if they were deciding against a defendant and had summarised the evidence of the appellant which he said showed that the Crown were not correct in the inference they were inviting the jury to draw ([38]). That the judge had not specifically directed the jury by reminding them in clear terms of the burden and standard of proof in respect of the hearsay evidence did not render the conviction unsafe ([45]). It is important to look at that direction in the context of the whole summing up in which the judge repeatedly made clear that it was for the Crown to prove the appellant’s intention so that they were sure of it ([46]). The appellant had initially served a defence statement in which he claimed ignorance of the nature of the items being imported which it was subsequently accepted was a lie ([49]). The judge’s reference to a stringent test in reference to being sure of the lie encompassed the burden and standard of proof ([57]). It is necessary to look at the summing up, in this relatively short trial, as a whole, to see whether the failure of the defence to seek, or for the judge to provide, any further specific direction as to how the jury should approach the issue at this point amounted to a material misdirection ([58]). While the judge at no point gave a full Lucas direction incorporating the rubric that people may lie for a number of reasons, including ones unconnected with guilt of the offence charged, he was not asked nor was he required to do so because this was a case which turned wholly on the jury’s assessment of the credibility of the appellant as to his state of mind and the judge scrupulously directed the jury that a rejection of the appellant’s explanation for the contents of the defence statement was not enough to prove the case against him, and at the most it would be ‘a factor that feeds into your decision’ ([61]).

The appellant had been convicted of two counts of rape, one count of sexual assault and one count of assault by penetration committed against DV. The offences had all occurred on a single occasion when the appellant had gone to DV’s house. The prosecution relied on the evidence of DV and her partner SL, photographs of injuries to DV’s neck and arms which the prosecution said were consistent with her description of what had occurred, the evidence of DV’s recent complaint to another, telephone call data and the appellant’s previous convictions for rape. The appellant had argued that the sex had been consensual and relied on the evidence of M, a friend, who said that he had previously seen the appellant and DV cuddling and kissing, and that the appellant had told him he loved DV. On an application by the prosecution the judge  admitted M’s previous convictions for sexual assault of a child under 13, assault by penetration of a child under 13, rape of a child under 16 and offences of sexual assault and assault by penetration, on the basis that they were relevant to his credibility and admissible under section 100(1)(b) of the Criminal Justice Act 2003 (that it had substantial probative value). However, he limited the admissible evidence to the jury being informed that M had convictions for ‘serious sexual offences’ and that it was as a result of his release from prison that he came to meet the appellant in a bail hostel.

The Court of Appeal dismissed the appellant’s appeal. In this case the credibility of the evidence given on each side was of crucial significance. Either the appellant had engaged in consensual sexual engagement with DV as the culmination of a whirlwind clandestine relationship; or what he described (with the evidential support of M) was a lie ([37]). The question was whether a jury could regard M’s history of sexual crimes as affecting the value of his evidence ([37]). The jury might properly take the view that someone who had committed serious sexual crimes in the past might regard a sexual crime committed by the appellant differently to most members of society, and might therefore be susceptible to being approached after the commission of such a crime in order to assist the appellant, and be prepared to make a statement supporting his defence. Such behaviour might be more than the act of a public-spirited acquaintance giving dispassionate evidence ([38]). Inevitably, the necessary assessment will be fact and case specific but here the judge was entitled to admit the evidence on the basis that he did, and was right to avoid too much focus on the nature of the witness’s offending by confining it by the exercise of his judgement under s.78 of the Police and Criminal Evidence Act 1984 ([39]).

The appellant was the subject of the first ever unexplained wealth order made under section 362A(1) of the Proceeds of Crime Act 2002. She is a national of Azerbaijan and married to H who had been the chairman of the International Bank of Azerbaijan from March 2001 to March 2015 when it had been the largest bank in the country and the Azerbaijan Democratic Republic had a controlling shareholding of not less than 50.2%. H had subsequently been convicted in Azerbaijan of various offences in connection with his employment at the Bank, including charges of misappropriation, abuse of office, large-scale fraud, and embezzlement. The appellant appealed against the decision of the High Court to dismiss her application for the unexplained wealth order to be discharged.

The Court of Appeal dismissed the appeal.

Politically exposed persons

Section 326B of the Proceeds of Crime Act 2002 provides the conditions that must be satisfied before an unexplained wealth order can be made under section 326A of that Act. Section 362B(7)(a) defines a politically exposed person as “an individual who is, or has been, entrusted with prominent public functions by an international organisation or by a State other than the United Kingdom or another EEA State”. The focus of the statutory wording is on the status of the entrusted person and not how that person has come to be entrusted with prominent public functions. The intent is to exclude from the definition of a politically exposed person those who are entrusted with prominent public functions in either the UK or another EEA State ([25]). Whether the Bank was a State-owned enterprise fell to be determined by reference to English, not local, law ([34]). The evidence was clear that the State had more than a 50% shareholding in the Bank. On the facts of the case, the judge was entitled to conclude that it had ultimate control, and consequently H was a politically exposed person, being a person who had been entrusted with a prominent public function as a member of the management of a state-owned enterprise ([33]) and his wife was one by virtue of being his family member ([29]).

Income requirements

Applying section 362B(3) and (4)(a) of the 2002 Act the court must be satisfied that there are reasonable grounds for suspecting that the known sources of the lawfully obtained income available to the politically exposed person would have been insufficient to enable him or her to obtain the property ([37]). Although the circumstances of a foreign conviction may be such (and would be such if there were a breach of jus cogen norms) that it could not form a proper ground for reasonably suspecting that lawful income was insufficient to enable the acquisition of material property (or that a person was involved in serious crime, within the meaning of section 362B(3) and (4)(b)), in the present case the National Crime Agency relied on more than simply H’s conviction for fraud and embezzlement ([38] to [43]). The judge was entitled, on all the evidence, to conclude that the reasonable grounds requirement was met ([44]).

Self-incrimination/spousal privilege

The High Court’s conclusions that the appellant and her husband had no right to invoke either the privilege against self-incrimination or spousal privilege in relation to a risk of prosecution for criminal offences outside the United Kingdom, that her evidence did not disclose a real and appreciable risk that either she or her husband would be prosecuted for offences in the United Kingdom or Azerbaijan, and that the unexplained wealth order regime had necessarily been intended to abrogate the two privileges could not be improved on ([49] to [56]).

The claimants had all been convicted in the 1980s or 1990s of multiple offences of loitering or soliciting in a street or public place for the purpose of prostitution, contrary to section 1 of the Street Offences Act 1959. The penalties imposed for the soliciting offences were almost always fines, with conditional discharges being ordered on a few occasions but under section 113A and 113B of the Police Act 1997 they had to disclose their convictions if they applied for certain types of employment, and were required to obtain a certificate verifying any such disclosure. In the Divisional Court they had succeeded in challenging what was described as the multiple convictions rule, namely the requirement of a series of statutory provisions that when applying for certain jobs anyone with more than one spent conviction has to disclose them. They now sought to appeal to the Court of Appeal on the grounds that that the criminalising of conduct falling within the scope of section 1 of the 1959 Act violates Article 8 read with Article 14 of the ECHR because it is gender discriminatory; and the recording and/or retention of data concerning convictions under section 1 of the 1959 Act violates Article 4 and/or Article 8 and/or Article 14 read with Article 8 of the ECHR and is accordingly unlawful.

The Court of Appeal allowed the appellant’s appeal in part.

Criminalisation

The challenge in this case was academic or hypothetical given that any challenge can only be to the continued criminalisation of soliciting for prostitution; but all the claimants in this case have long since given up committing the offence and had been convicted of an offence very different from the present one ([24] and [25]). In any event a challenge to the continued criminalisation of solicitation for the purposes of prostitution, brought by one of the rapidly diminishing number of people prosecuted for it, would not succeed on the grounds that the offence in its modern form is gender discriminatory. Simply the fact that over 98% of defendants in relation to section 1 of the 1959 Act offences are women, does not itself show a prima facie case of discrimination. Most criminal offences, certainly most offences of violence, are committed overwhelmingly by men, but that has never so far given rise to a successful argument that the existence of the particular offence is a breach of the defendant’s rights under Article 14 read with Article 8, or that it has a disparate adverse impact on men. It would be otherwise if the evidence tended to show that men who commit the offence of soliciting are not prosecuted ([27]). It is a legitimate point of view that prostitution should not be a criminal offence but there is no consensus among ECHR Member States to this effect ([28]).

Retention

In light of the decision of the European Court of Human Rights in Catt v United Kingdom (2019) 69 EHRR 7, it is clearly arguable that the policy of retaining data concerning convictions under section 1 of the 1959 Act until the offender’s 100th birthday interferes with the Claimants’ rights under Article 8 ECHR to an extent which is not justified as being necessary and proportionate ([50] and [56]). That issue is an important one which should be argued out on its merits at first instance with the police being represented and having the opportunity to put in evidence, if necessary, to justify the policy, and would be remitted to a fresh Divisional Court ([56] and [57]).

However, the obstacles in respect of Article 14 are the same for retention as they are for criminalisation. If the existence of the offence is not gender-discriminatory, the retention of records of such convictions for a very long period cannot be gender-discriminatory either ([51]). Although human trafficking may fall within the scope of Article 4, neither that Article. the Trafficking Convention, nor the EU Directive 2011/36/EU on Preventing and Combatting Trafficking in Human Beings and Protecting its Victims require that no trafficked victim should be prosecuted or subject to penalties, whatever the circumstances ([52]). It is also very doubtful whether the retention of the record of a conviction is a penalty within the meaning of the non-penalisation provisions of the Trafficking Convention and the EU Trafficking Directive ([53]).

On an application made by the National Crime Agency for a disclosure order under section 357 of the Proceeds of Crime Act 2002 in the context of a money laundering investigation the Crown Court judge held that the disclosure order could not apply to bank accounts which were the subject of account freezing orders previously made in the course of a separate frozen funds investigation then being undertaken by the City of London Police, because section 357(2) of that Act provided that “No application for a disclosure order may be made in relation to a detained cash investigation, a detained property investigation or a frozen funds investigation”.

An initial question of jurisdiction arose due to the decision in Loade and others v Director of Public Prosecutions [1990] 1 QB 1052 ([32]) where it had been held that in the context of criminal proceedings the jurisdiction to state a case to question a decision under section 28(1) of the Senior Courts Act 1981 applied only to a final decision rather than an interlocutory decision ([34]). However, Loade could be distinguished on the grounds that an application under s.357(1) of the 2002 Act is not “criminal proceedings” in the sense meant in that case. An application under s.357 is not being sought in the context of any wider ongoing or extant court proceeding. Rather, the application for the disclosure order is the proceeding ([37]). In circumstances where an application to discharge or vary is not, or is no longer, available (here because there was no prospect of going back to the same judge to ask him to vary the order made for the reasons for which he had already rejected) a disclosure order made (or refused) under s.357 of the 2002 Act is ordinarily capable of being appealed on a point of law under s.28(1) of the 1981 Act ([40]).

The judge had erred in concluding that the statute precluded him from making a disclosure order with regard to bank accounts which were subject to the account freezing orders made in the frozen funds investigation ([45]). The words “in relation to” in section 357(2) were not to be taken as co-extensive with the words “for the purposes of” ([46]). However, to be precluded from the disclosure order regime of s.357, the required relationship of the application is to a frozen funds (or detained cash or detained property) investigation. The required connection is thus to the type of investigation identified not to the target of such investigation or any by-product of such investigation ([52]). Here the disclosure order sought by the NCA was being sought in relation to the money laundering investigation. The mere fact that some bank accounts may feature in other types of investigation, and have been in this case the subject of account freezing orders in the (separate) frozen funds investigation, does not mean that the application of the NCA is “in relation to” a frozen funds investigation ([53]). An application for a disclosure order in a money laundering investigation would potentially fall foul of s.357(2) if it was indeed intended or calculated to circumvent the lack of power to apply for a disclosure order in a frozen funds, detained cash or detained property investigation but that was not the case here ([55]).

Lord Justice Singh, as president of the Investigatory Powers Tribunal, has ordered MI5 not to delete vast databanks of personal information it is storing pending the outcome of a trial over the legality of its surveillance procedures.

The full piece can be read here.

The Government has introduced emergency legislation to provide that terrorist offenders would only become eligible for release at the two-third point of their custodial terms and that release would be subject to the Parole Board finding that their detention is no longer necessary for the protection of the public.

The full piece can be read here.

Two of the UK’s most prolific ticket touts who used false identities and computer software to buy tickets have been found guilty of fraud.

The full piece can be read here.