This week’s Digest considers three judgments. In R v D the Court of Appeal considered the definition of a foldable pocketknife under section 139(2) of the Criminal Justice Act 1988, while in R v LG the same court assessed whether sentences passed for historic sex crimes should have taken into account the appellant’s relative youth at the time of the offences. Finally, in Douherty v The Chief Constable of Essex Police, the High Court considered whether a County Court judge should have adjourned proceedings for a young appellant to seek legal representation for his committal hearing despite the appellant’s expressed wish to continue unrepresented.
R v D [2019] EWCA Crim 45
The judgment of Simon LJ, handed down 15 January 2019, is available here.
At trial the defendant was charged with having an article with a blade or a point in a public place without lawful excuse, contrary to section 139(1) of the Criminal Justice Act 1988. The article in question was a foldable cut-throat razor. The judge held that it was excluded from section 139(1) by sections 139(2) & (3), which create an exemption for folding pocketknives with a cutting blade of less than 3 inches. The prosecution appeal was successful. The razor was not a pocketknife.
The defendant asserted in his police interview that he had the article in his pocket in connection with his apprenticeship as a barber, but at trial his defence team also submitted that it did not fall within the prohibition in section 139 as this provision was intended to prevent the carrying of fixed bladed knives in a public place. The prosecution argued that it was a razor, not a pocket knife, and lethal in the wrong hands. It was thus appropriate to invoke to mischief rule of statutory interpretation. The judge ruled that while the authorities offered minimal assistance, as a matter of common sense the article was a bladed article that folded simply into and out of the handle, and thus fell within the definition of a pocketknife.
On appeal the prosecution argued that on its plain meaning a cut-throat razor is not a knife and therefore not a pocketknife. In addition, under the ‘mischief’ approach to statutory interpretation, Parliament could not have intended for someone to carry a cut-throat razor in a public place without having to justify such possession. The defence submitted that the starting point when determining any provision imposing criminal liability should be to apply the presumption that Parliament intended the meaning that was most favourable to the accused.
The Court agreed with the prosecution. While a penal statute is to be construed strictly in favour of those who may be prosecuted under them, that did not outweigh the plain meaning of the statute. Previous authorities established that a folding knife had to be readily and immediately foldable, without the pressing of a button. The article in question in this case required the pressing of a button to close. However, the real issue in this case is whether the article can properly be regarded as a pocketknife, not whether or how it can fold. In the Court’s view, it plainly could not, as a pocketknife is not an apt description for a cut-throat razor. The appeal was allowed and the proceedings resumed.
R v LG [2019] EWCA Crim 109
The judgment of Simon LJ, handed down on 16 January 2019, is available here.
The appellant was convicted of 14 historic sexual crimes against two young girls. The sentence passed included custodial periods of 12 years consecutively for the offences against each victim, so 24 years custody in total, with an extended licence period of two years. He appealed against his sentence. The appeal was allowed to the extent that some further reductions should have been made given that the appellant himself was under 18 at the time of many of the offences. The Court substituted a sentence of 18 years.
The appellant, now 46 years old, argued that the sentence was manifestly excessive, the two sentences should have been imposed concurrently since the offences happened at the same time, and that the judge gave insufficient weight to the appellant’s youth at the time that the offences were committed. On any view he had been under 18 when most of the offences were committed. The prosecution submitted that there had been abundant aggravating features, that the judge clearly passed the sentence with the principle of totality in mind, and that the judge also took into account the appellant’s age at the time of the offences.
The Court held that the sentences were not manifestly excessive, and that the judge had considered the principle of totality, but agreed that he had appeared not to have taken into account the age of the appellant at the time of the offending. For example, he had passed a 12-month period of extended licence under section 236A(1)(b) of the Criminal Justice Act 2003 in respect of offences which took place when the appellant was under 18, which was contrary to that section. The Court therefore substituted two sentences of nine years, to run consecutively, and quashed the section 236A sentences.
Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55
Judgment was handed down by Davies LJ on 30 January 2019.
The appellant appealed as of right against an order committing him to prison for 28 days, suspended for a period of 12 months, for breach of an injunction. He had represented himself at the committal hearing. The appeal was allowed. The judge had failed to adjourn the proceedings to permit the appellant to obtain legal aid and representation, advise the appellant of his right to remain silent, warn him of the risk of self-incrimination, and permit him to find representation to enable proper mitigation to be made on his behalf.
The appellant was made subject to a ‘gang injunction’ order containing 26 conditions including not entering various areas of Grays Town Centre, not being in possession of knives or drugs, not wearing a hooded top, and not changing his mobile phone without first notifying the police. He was arrested in breach of these conditions and on suspicion of criminal offences (possessing a knife in a public place and possessing cannabis), interviewed in the presence of his solicitor, and remanded in custody overnight for a hearing the next day in relation to the breach of the court order. However, no representation was arranged for this hearing, as his solicitor was under the impression this was a civil matter. At the civil committal hearing the appellant, though surprised to not be represented on legal aid, agreed to represent himself. He was sentence to 28 days imprisonment suspended for 12 months.
On appeal the appellant argued that the judge wrongfully failed to adjourn the proceedings to allow the appellant to obtain legal aid and representation, to inform the appellant of his right to remain silent, to warn him of the risk of self-incrimination, and to adjourn the proceedings at the conclusion of the appellant’s evidence to permit him to obtain legal representation for a plea in mitigation.
The Court held that the appellant had been deprived of valuable safeguard to ensure a fair hearing. The nature of contempt proceedings was not explained to him, and the terms of the injunction were lengthy and convoluted. The hearing was not so urgent that an adjournment could not be granted, especially when both the judge and counsel for the respondent recognised that the appellant was likely eligible for legal aid and representation. The appellant, under the age of 18 and with no prior convictions or other experience of the courts, could not have been expected to understand the consequences of the hearing. The judge also failed to inform him of his right to remain silent, or warn him about self-incrimination. The appeal was allowed and the contempt application remitted for further hearing before a different judge.
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