Weekly Digest: 17 June 2019

The appellants were four of 10 defendants charged with involvement in the victim’s death. The trial began on 2 May with an 8-10-week estimate. Delays occurred due to issues with technical equipment, illness and the judge’s other commitments and it became clear that the trial would overrun into a period when some of the jurors had pre-booked holidays. On 2 August, the judge refused the defendants’ application to discharge the jury made on the basis that it was unlikely that a verdict would be reached before the holiday period. The judge’s summing-up took place between 2 and 6 August. The jurors were given material to aid them in their deliberations. The jury retired to consider its verdict on 6 August. From 8 to 29 August, there was a break in deliberations for the pre-booked holidays. Jury deliberations resumed from 29 August to 6 September, when there was a further break until 27 September for a second tranche of pre-booked holidays. The jury delivered its verdicts on 2 October. The appellants appealed against their convictions, submitting that the delays had caused the trial process to become disjointed and that the protracted deliberations were incompatible with a fair trial.

The appeals were dismissed; although the second break in the jury deliberations was very far from satisfactory, it did not result in an unfair process or render the verdicts unsafe. The issue of whether the length of time that a jury had been dispersed in the course of its deliberations rendered a trial unfair, or otherwise called into question the safety of a conviction, involved a fact-sensitive analysis. However, potentially material matters were (i) the quality of the summing-up, (ii) the extent and quality of the material available to the jury on retirement, and the extent to which that would enable it to focus on the issues and evidence relating to them; (iii) the gap between the summing-up and the final verdicts; (iv) any application made to discharge the jury on the basis of the time in retirement; (v) the existence of indications tending to establish that, by reason of the length of the trial and the retirement, the jury was unable to discharge its functions; and (vi) the verdicts themselves. In the instant case, the different verdicts on different charges in relation to 10 defendants suggested that the jury had focused on its task despite the interruptions.

When considering breaks for holidays, a trial judge should establish the guiding principles for granting adjournments to allow for jury holidays and should adhere to them (R. v D [2007] EWCA Crim 2485). The judge had been entitled, if not bound, to consider the potential difficulties caused to jurors by the case overrunning and no complaint had been made of his decision to allow a three-week period away from the trial for pre-booked holidays.

The respondent shouted from the public gallery during a criminal trial while the defendant was being cross-examined by prosecuting counsel about their relationship. This outburst prompted the trial judge to discharge the jury and order a new trial. The trial judge elected not to deal with the contempt there and then, but rather referred the matter to the claimant, who, by way of a Part 8 claim, sought an order for the respondent’s committal. The issues in this case were four-fold: (1) did the Divisional Court have the jurisdiction to deal with the application; (2) if so, was permission required; (3) if permission was required, what was the applicable test; and (4) should permission be granted.

1. Jurisdiction. This issue arose as a result of “infelicitous rule-drafting” ([13]) of Part 81 of the Civil Procedure Rules (“CPR”); specifically, the most recent edition of those provisions, the result of a 2014 revision, did not clearly signpost the concurrent jurisdiction of the Divisional Court to hear an application for an order for contempt where the original court has decided not to deal with the matter itself. This concurrent jurisdiction clearly, however, existed and the procedure to be followed for such applications was that set out in CPR rr. 81.12 – 81.14.
2. Permission. It was quite clear that CPR r. 81.13 required a permission stage.
3. The applicable test. The applicable test was said to be twofold: (a) has the applicant demonstrated at least a prima facie case of contempt; (b) if so, is it in the public interest that an application to commit should be made.
4. Should permission be granted. The clear answer in this case was ‘yes’. In terms of the first limb, there was at least a prima facie case of contempt. The words used by the respondent were the subject of a court transcript and also evidenced by the officer in the case and the judge. Further, the respondent’s disruption of the trial also passed the required de minimis level of seriousness for the conduct to amount to contempt. In terms of the second limb, there was a clear public interest both in the respondent’s outburst being properly examined and, if regarded as contempt in the face of the court, in the nature of any penalty imposed. Accordingly, permission was granted.

The facts of this case were described as “extraordinary”. The Claimant (B) applied for judicial review of his convictions following summary trial as long ago as 26 August 2014. It appeared to be the case that, in the Magistrates’ Court and at a number of earlier court hearings, B was impersonated by his trusted agent, Mr Saad Maki Abdul-Jalil (SMAJ), a man to whom he had granted a power of attorney. In essence, B’s convictions originated from his ownership of a residential dwelling house in the London Borough of Ealing (“the Interested Party”). The Interested Party investigated this premises for breach of planning control. It issued two enforcement notices, neither of which was complied with. It could not conclusively be said that B knew about the enforcement notices. Nevertheless, an information was laid before Ealing Magistrates’ Court by the Interested Party’s solicitors. B was convicted. It was agreed that SMAJ had entered not guilty pleas and gave evidence as B. B was committed to the Crown Court for sentencing and subsequently made the subject of a confiscation order. B had, further, done nothing to disassociate himself from the actions of SMAJ. B advanced three grounds of claim:

1. breaches of ss. 17A and 20 of the Magistrates’ Court Act 1980 (“MA 1980”) led to a lack of jurisdiction; consequently, the whole of the proceedings flowing from that breach were a nullity and should be quashed;
2. as B was not present in court, the convictions and subsequent proceedings were a nullity; and
3. B’s convictions arose as a breach of the requirements of fairness owing to the fact that B was impersonated and did not participate in the proceedings.

The appeal was allowed. As for the first ground, the line of authorities from Cockshott [1898] 1 QB 582 to Owadally [2017] EWHC 1092 (Admin) established that compliance with the procedure laid down in ss. 17A and 20 MA 1980 is a precondition to the magistrates having jurisdiction to try an either-way offence. Thus, the court had no jurisdiction to embark upon a summary trial or to convict B or to commit him to the Crown Court for sentence. Ground one accordingly succeeded. As did ground two; it followed from the finding on ground one that the trial and the convictions were a nullity. Ground three also succeeded on the basis that it could not fairly be said that B should suffer the consequences of a trial at which he was undoubtedly impersonated and of which he may not even have known. Finally, the Court considered whether, despite their conclusion on the substantive grounds, relief should be refused on the basis of s. 31(2A) of the Senior Courts Act 1981; i.e. in circumstances where it “appears to the court to be highly likely” that the outcome would not have been substantially different if the conduct had not occurred. The court was satisfied that it should not exercise its discretion to refuse relief where the consequences for B of the proceedings taken without jurisdiction were of substantial weight.

A number of further issues also arose. First, a direction was given that the matter be relisted as soon as practicable before the defendant Magistrates’ Court; the summonses against B remained valid. Second, the Crown Court had not been a party to these proceedings; it was nevertheless appropriate to quash the decision of the Crown Court in relation to sentence and the confiscation order. Third, and finally, in terms of costs, the criminal costs scheme applied, but the court refused to make an order that any of B’s costs should be awarded from central funds.

The home secretary, Sajid Javid, has revealed he has signed a request for Julian Assange to be extradited to the US where he faces charges of computer hacking. Speaking on BBC Radio 4’s Today programme on Thursday, Javid said: “He’s rightly behind bars. There’s an extradition request from the US that is before the courts tomorrow but yesterday I signed the extradition order and certified it and that will be going in front of the courts tomorrow.”

The full piece can be read here.

One of the country’s largest digital forensics laboratories has been stripped of its accreditation after a former employee reported concerns about the handling of evidence at the business. At a recent inspection, it was found that the company, Sytech, had inadequate vetting procedures for new staff and police exhibits were being transported in private vehicles.

The full piece can be read here.

The Crown Prosecution Service is to face a judicial review challenge over allegedly covert policy changes that are blamed for a dramatic collapse in the number of rape cases going to court.

The full piece can be read here.

The Law Society has called for a legal aid taskforce made up of solicitors, barristers, prosecutors and judges to be set up after highlighting further examples of what it described as a criminal justice system on the brink of collapse.

The full piece can be read here.