This week’s Digest considers three judgments from the Court of Appeal (Criminal Division). First, in R v Coker the court considered whether the leading criminal law textbooks were correct that the offences of supplying and of offering to supply controlled drugs could be offered as alternatives on a single charge. Secondly, R v Toner addressed whether under the post-2016 Criminal Procedure Rules historic offences and recent offences should be prosecuted on the same indictment or severed. Thirdly, in R v Williamson the court considered whether a sentence for causing grievous bodily harm with intent was unduly lenient where the trial judge had relied on exceptional features to move the case down from category 1 to category 2 of the sentencing guidelines.
R v Coker [2019] EWCA Crim 420
The judgment of Gross LJ, dated 28 February 2019, is available here.
The appeal turned on the correct interpretation of the offences of supplying and offering to supply controlled drugs contrary to sections 4(3)(b) and 4(3)(c)of the Misuse of Drugs Act 1971 (“the Act”), and whether it was permissible for the trial judge to direct the jury under an “either/or” direction that section 4(3)(c) could be used as an alternative when only section 4(3)(b) was included on the indictment. The Court held that the two sections could not be so used. They created separate offences, and the relevant paragraphs in both Archbold (2019) and Blackstone’s (2019) needed revising to reflect this.
In January 2018 the appellant pleaded guilty to possession of cannabis. In May 2018 he was convicted of supplying a controlled class A drug (crack cocaine) under section 4(3)(b) of the Act. He was sentenced to a total of 5 years and 6 months’ imprisonment. The trial judge directed the jury on the elements of the offence, stating that: “for an offence to be shown to be committed the prosecution must prove, firstly, that there has been a supply of class A drugs to another, or the making of an offer to supply class A drugs to another; secondly, that the defendant participated in such an enterprise involving such supply or such an offer to supply; and thirdly, that he knew the nature of that enterprise.”
The appellant appealed on the ground that the wording “or the making of an offer to supply” was incorrect. Subsections 4(3)(b) and 4(3)(c) of the Act created two separate offences: under (b) there has to be an actual supply, whereas under (c) it is enough that there was an offer to supply. The appellant argued that the direction given involved an impermissible “either/or”, creating risks both that the appellant might be convicted under s.4(3)(c) when he had not been charged under that provision, and that the jury might be under the impression that provided some agreed on one basis, and some on another, they would be entitled to convict.
The appellate Court agreed. Section 4(3) gives rise to three separate and distinct offences, leaving no room for an either/or direction. The elements of the offence are (i) that there has been the supply of a controlled drug; (ii) that the defendant participated in an enterprise involving such a supply; and (iii) that the defendant knew the nature of the enterprise, namely that it involved such supply. The Court noted that the treatment of the offence under section 4(3)(b) in Archbold (2019) at paragraph 27-41 is perhaps unduly compressed, and that Blackstone (2019) at paragraph 19.49 wrongly includes the either/or formulation. It did note that nothing in this judgment dealt with the situation where the indictment contained the two separate counts. However, the Court concluded that this misdirection did not make the conviction unsafe – the evidence made for an unanswerable case under section 4(3)(b). The appeal against conviction was dismissed.
R v Toner [2019] EWCA Crim 447
The judgment, available here, was handed down by Bean LJ on 15 March 2019.
The appeal concerned the correct interpretation of the 2016 Criminal Procedure Rules r.3.21(4): should a trial judge order an indictment be severed where historic offences and recent offences were being prosecuted under the same indictment? The Court held that r.3.21(4) gave trial judges a wider discretion than previously, removing the technical barriers to joinder of counts separated by a number of years. The test is now that where the evidence on one count would be properly admissible on the other as evidence as bad character, the two can be prosecuted on the same indictment. The appeal was dismissed.
Esther Schutzer-Weissman appeared for the Appellant.
The appellant stood trial in April and May 2018 on an indictment which contained charges of indecency with young children allegedly committed between 1986 and 1991 and of possession of several indecent photographs of a child in 2015. The defence applied to sever the indictment so that the historic counts and the recent counts could be tried separately. The judge refused the application. The appellant was convicted of four of the historic counts and three of the recent allegations. He appealed.
The pre-2016 Criminal Procedure Rules stated that charges for any offences may only be joined on the same indictment if those charges are founded on the same facts, or form, or are part of a series of offences of the same or a similar character. In the leading case of Ludlow v Metropolitan Police Commission [1971] AC 29 the House of Lords held that for two or more offences to constitute a “series of offences of the same or similar character” there must be some nexus between the offences i.e. a feature of similarity which all the circumstances of the case enabled the offences to be described as a series. Bean LJ stated that it was doubtful whether charges separated by at least 24 years, as in these case, could be said to form a series of offences of the same or a similar character.
However, the new Criminal Procedure Rules introduced in 2016 at r.3.21(4) provide the court with a significant discretion when deciding whether to separate trials on the same indictment, stating that the court may order separate trials if it is of the opinion that “the defendant otherwise may be prejudiced or embarrassed in his or her defence”. The Court held that the 2016 rules have removed the technical barriers to joinder in appropriate cases. Where the evidence on one count would be properly admissible on the other as evidence of bad character it is difficult to argue that the defendant would be so prejudiced by having both counts or sets of counts on the same indictment. On the facts, an application by the prosecution to adduce the evidence of the historic offences at the trial of the current offences could properly have been allowed. It was a proper exercise of the judge’s discretion to refuse severance of the indictment. The convictions were not unsafe and the appeal was dismissed.
R v Williamson [2019] EWCA Crim 259
Judgment, available here, was handed down by Holroyde LJ on 7 February 2019.
D, after discovering the theft of his cannabis crop that he had started to cultivate to help cope with the loss of his wife, sought revenge on the man he thought responsible, Mr Ramshaw. Ramshaw suffered life-threatening injuries. D was sentenced on the basis of his written guilty plea to 4 years’ imprisonment for causing grievous bodily harm with intent. The Attorney General referred the sentence to the Court pursuant to section 36 of the Criminal Justice Act 1988 as unduly lenient. The Court allowed the appeal. While there were a number of significant mitigating factors, the trial judge had erred in not giving due weight to the aggravating factors of the attack. The Court substituted a sentence of 6 years 9 months’ imprisonment.
Paul Jarvis appeared for the Attorney General.
In late October 2016 someone stole D’s crop of cannabis that he had been growing in his outhouse. D suspected Mr Ramshaw and went to his house on 15 November 2016. Ramshaw suffered serious injuries, including a rupture of his spleen and an injury to the head. He was taken to hospital where his spleen was immediately removed. But for that operation there is a substantial risk that he would have died as a result of internal blood loss. Mr Ramshaw’s account of the incident is that three men armed with weapons came into his home and beat him.
D was charged with aggravated burglary, but pleaded guilty to a section 18 offence on the written basis that he was not intent on violence when he went to Ramshaw’s property and did not attend with a weapon. On the contrary, Ramshaw produced a baseball bat, which D took from him and struck him with twice unlawfully. The indictment was amended to reflect the plea but the prosecution did not accept the basis of that plea. The judge indicated that he did not think it was necessary for there to be a Newton hearing or trial of the issue as it would not make a material difference to sentence.
The pre-sentence report indicated that D expressed severe remorse for his actions, accepted that he had overreacted to his belief that Ramshaw had stolen his cannabis crop, and was still severely influenced by his grief at the loss of his wife 2 years before the offence. Before the court were a number of character references, including one from a retired police officer, who knew D well and spoke highly of him. In the time since his arrest he had lost both his home and his employment but had subsequently started his own business by which he was earning enough to care for himself and his children.
This case fell within category 1 of the sentencing guidelines for section 18, with a starting point of 12 years’ custody and a range from 9 to 16. The judge accepted this, however identified three exceptional features which caused him to move it down from category 1 to category 2: (i) D’s positive good character; (ii) genuine remorse coupled with clear evidence of a change of behaviour on his part, including cessation from drug use; and (iii) the position of the children who having lost their mother would now be deprived of their father for a time. The starting point for category 2 was 6 years, further factors in mitigation brought it down to 5 years 4 months, and then a 25% credit for guilty plea resulted in the final sentence of 4 years’ custody.
On appeal, counsel for the Attorney General submitted that significant aggravating factors included that the origins of the offences lay in D’s discovery that someone had stolen the product of his criminal activity, that Mr Ramshaw had suffered life-threatening injuries, that there was higher culpability through the use of a weapon, and that this was an attack on the victim in his own home. While the trial judge was correct to consider the lengthy mitigating factors, he had neglected to consider these aggravating factors. The appellate Court agreed. A sentence which started at 12 years before taking into account the undoubted aggravating features had come down to 5 years and 4 months. Such a substantial reduction could not be justified by the mitigation. The sentence on D’s own basis of plea could not properly have been less than 9 years’ imprisonment. The sentence was thus unduly lenient and, giving credit for the guilty plea, the appellate Court substituted a sentence of 6 years 9 months’ imprisonment.
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