Weekly Digest: 18 November 2019
18 November 2019
This week’s digest considers four judgments; one of the Supreme Court, two of the Court of Appeal, and one of the Divisional Court. In R v TRA the Supreme Court interpreted the term “person acting in an official capacity” in section 134(1) of the CJA. In Vote Leave Ltd v Electoral Commission the Court of Appeal considered an application for judicial review of the Electoral Commission’s decision to publish a report of an investigation undertaken under the Political Parties, Elections and Referendums Act 2000. In R v Idahosa it considered an appeal against conviction by an Appellant who pleaded guilty to possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010. R v Secretary of State for the Home Department concerned a judicial review application which challenged the government’s policy requiring that when a person’s claim to be a victim of human trafficking has been rejected, they can only have the decision reconsidered if one of a class of bodies intercedes on the person’s behalf.
R v TRA  UKSC 51
The judgment, available here, was handed down by Lord Lloyd-Jones on 13/11/2019.
In this case the Court considered what the correct interpretation of the term “person acting in an official capacity” in section 134(1) of the Criminal Justice Act 1988.
The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (“CJA”). The charges relate to events in the early stages of the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (“NPFL”), took control of parts of Liberia. Its leader, Charles Taylor, subsequently became President of Liberia in 1997.
The point of law raised in the appeal, and certified by the court below, relates to the correct interpretation of the term “person acting in an official capacity” in section 134(1) of the CJA.
The prosecution maintained that at the time and place of the alleged offences, the NPFL was the de facto military government with effective control of the relevant area. Charles Taylor and those acting for and with him, including the appellant, were therefore acting in an official capacity for, and on behalf of, the NPFL.
The appellant denied involvement in the offences and asserted that at no time did she act in an official capacity for the NPFL, nor was the NPFL the de facto government authority in the relevant locations. The appellant made an application to dismiss the charges. The judge concluded that section 134 applies not only to entities tolerated by or acting under the authority of a government but also, in situations of armed conflict, to individuals who act in a non-private capacity as part of an authority-wielding entity. Accordingly, the judge ruled that there was a case to answer on all counts. The appellant appealed to the Court of Appeal, which dismissed the appeal, holding that section 134 CJA is not confined to individuals acting on behalf of a State. It held that section 134 covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population, whether in peace time or during armed conflict. The appellant appealed the decision to the Supreme Court.
By a majority, the Supreme Court substantially agreed with the conclusion of the Court of Appeal, but because of further evidence from the prosecution’s expert produced after the judgment of the Court of Appeal, it allowed the appeal to the limited extent of remitting the matter to the judge for further consideration in the light of that further evidence and the judgment of this court.
Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“UNCAT”) . Accordingly, the wording of section 134 CJA must bear the same meaning as in article 1 UNCAT. The principles governing the interpretation of treaties are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (“VCLT”) . The ordinary meaning of the words describes a person performing official administrative or governmental functions and provides no suggestion that those functions must be performed on behalf of the government of a State .
The appellant’s suggested reading gives rise to a number of anomalies concerning issues of recognition of States and governments. The offence applies without distinction between recognised and unrecognised States. Similarly, resort to State practice in the recognition or non-recognition of governments cannot provide a uniform standard by which the Convention can be applied [56-59].
The majority concluded that “a person acting in an official capacity” in section 134(1) CJA includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict . The exercise of a governmental function, which is a core requirement, must be distinguished from purely military activity not involving any governmental function [77-78]. It is necessary to look at the reality of any particular situation. The question is whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi-official powers, as opposed to a rebel faction or mere military force .
In the light of further evidence from the prosecution’s expert witness regarding the nature of the NPFL’s control over the relevant territory, it is necessary for this matter to be remitted to the judge to reconsider whether there is sufficient evidence to enable a properly directed jury to conclude that the appellant was acting in an official capacity .
Lord Reed dissented from the majority’s reasoning and finds the appellant’s arguments more persuasive . The ordinary meaning of the phrase does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country. The core idea is that the person is acting on behalf of the State . The reference to “lawful sanctions” later in article 1 supports the view that it is concerned with conduct for which the State bears responsibility . If torture carried out by insurgents in territory under their de facto control falls within the scope of article 1, then article 2(1) UNCAT, which requires each State Party to take measures to prevent acts of torture in any territory under its jurisdiction, imposes an obligation with which States cannot comply, since they cannot take effective measures in relation to territory they do not control . The problem which UNCAT was intended to address was the reluctance of states to investigate and prosecute torture in which their authorities were themselves involved [87-88]. A number of States Parties have adopted a definition in their domestic law based on the understanding that article 1 is confined to situations where the responsibility of state authorities is engaged . In relatively recent times, there appears to have been a development in the CAT’s interpretation of article 1. Accordingly, even if article 1 might now be interpreted as extending to the actions of non-state entities, it does not follow that it should be interpreted in the same way when considering the criminality of actions that took place in 1990 [95-98]. Finally, criminal legislation whose meaning is unclear should be given a restrictive rather than an expansive interpretation .
Vote Leave Ltd v Electoral Commission  EWCA Civ 1938
The judgment, available here, was handed down by Lord Justice Underhill on 12/11/2019.
This case concerned an application for judicial review of the Electoral Commission’s decision to publish a report of an investigation undertaken under the Political Parties, Elections and Referendums Act 2000 Pt X.
A campaigning organisation (Vote Leave Ltd) sought judicial review of the Electoral Commission’s decision to publish a report of an investigation undertaken under the Political Parties, Elections and Referendums Act 2000 Pt X.
The organisation was the lead campaigner for the “leave” outcome in the 2016 EU referendum. The Commission conducted an investigation under Sch.19B in relation to payments made to a data analytics firm for campaign services, and how those payments had been reported to the Commission. It served two notices, under Sch.19C para.6(5), of its decision to impose monetary penalties on the organisation in respect of four offences. It also published on its website a report giving an account of its investigation and findings. The organisation maintained that the Commission had no power to publish such a report and sought permission to seek judicial review of the decision to publish it. Permission was initially refused, but, on appeal, the Court of Appeal granted permission and directed that the judicial review application should be retained in the Court of Appeal.
The application for judicial review was refused.
Power of Electoral Commission to publish reports
There was no provision in the Act which expressly empowered the Commission to make or publish a report setting out the result of an investigation under Sch.19B which culminated in findings of offences under the Act and the imposition of fines for those offences under Sch.19C. However, the publication of the report was within the Commission’s powers under Sch.1 para.2 because it was “incidental” to the carrying out of the package of enforcement functions conferred on it by Pt X.
There was an important public interest in public bodies with an investigatory function being as open as possible about inquiries which they had conducted. That was particularly important in the case of investigations carried out by the Commission, both because of the centrality of its functions to democracy and because they might result in findings that criminal offences had been committed. Indeed, the Commission’s role under Sch.19C was quasi-judicial. It might be said that such publication was unnecessary because notices under para.6(5) were public documents and would contain all the information necessary to justify the determinations which they recorded.
However, there would certainly be cases where the Commission reasonably regarded it as important to report the results of its investigations in some other form. In this case, it would not be straightforward for a member of the public to gain a complete picture of the investigation from reading several individual notices, all of which told only part of the story. There was obvious value in a single report covering the same ground in a comprehensive and comprehensible way. In any event, it would have been within the Commission’s power to announce on its website that it had issued the notices, or issue a press release to that effect. The publication of the report did not constitute a distinct sanction falling outside the scheme provided for by the Act. The only sanction was the monetary penalties, and the report was simply an explanation of the basis on which the decision to impose that sanction was taken. [21-27]
Meaning of “monitor” in s.145(1)
(Per Singh LJ) Under s.145(1), the Commission was required to “monitor, and take all reasonable steps to secure compliance with” various requirements of the Act, including those of Pt VII. The word “monitor” could be construed as including acts of investigation and scrutiny which took place afterwards and not only contemporaneously. That was so in a statutory context in which the “referendum period” was narrowly defined. In practice it might be unrealistic for the Commission to monitor events as they took place. A broader construction of “monitor” was appropriate. 
R v Idahosa  EWCA Crim 1953
The judgment, available here, was handed down by Mr Justice Jay on 14/11/2019.
This case concerned an appeal against conviction by an Appellant who pleaded guilty to possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010 (“the 2010 Act”).
On 12th July 2013 at the Crown Court at Lewes before HHJ Kemp Mr Richard Idahosa (“the Appellant”) pleaded guilty to possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010 (“the 2010 Act”). On the same occasion he was sentenced to 15 months’ imprisonment. He appealed against his conviction with the leave of the Full Court granted on 2nd May 2019.
Leave was granted, together with the necessary extension of time, because it is arguable that the Appellant was not advised that he had a potential defence under section 31 of the Immigration and Asylum Act 1999 (“the 1999 Act”): namely, that he was a refugee in transit in the UK seeking to claim asylum in Canada. Although the Appellant has long since served his sentence of imprisonment, his conviction is not spent for the purposes of the Rehabilitation of Offenders Act 1974, and in his witness statements he has explained the difficulties that he has faced in obtaining suitable employment in this country.
The Appellant entered the UK lawfully on a tourist visa on 17th April 2013 and attempted to leave on 11th June, some 54 days later, on someone else’s passport. It was his case that he had no intention of claiming asylum in this jurisdiction but would have done so on arrival in Canada had he been permitted to board the plane.
The essential issues in this appeal were, first, whether the Appellant was properly advised by his Counsel on 12th July 2013 about the potential section 31 defence; and secondly, whether he can show on the balance of probabilities that it was explicable that he did not present himself to the immigration authorities because he was only here on a short-term stopover en route to Canada where he intended to claim asylum.
The appeal was allowed and the Appellant’s conviction was quashed.
The first issue was whether the Appellant was properly advised by his Counsel on 12th July 2013 about any potential section 31 defence. 
Counsel for the Appellant submitted that Ms Rowling gave no advice as to any potential defence under section 31 and submitted that his client’s plea was a nullity. Counsel for Ms Rowling submitted that He pointed out that the court should accept Ms Rowling’s evidence over the Appellant’s and that it may reasonably be inferred from her plea in mitigation that the section 31 issue was at the very least touched on, contrary to the Appellant’s adamant denial that this was so.
In the Court’s judgment, Ms Rowling concluded from what she had been told, that the section 31 defence was a non-starter, and she ran the point past the prosecutor for her peace of mind. We accept her evidence that she came to this conclusion without (inappropriately) disbelieving her own client, but the “disconnect” she has identified was not properly explored, probably because in her estimation the Appellant had told her nothing which displaced the presumptive state of affairs, that he would probably be pleading guilty. The solution to the apparent disconnect would have been to probe the Appellant by asking a question or two. The Appellant would then have explained that he had been waiting for his papers. This would have resolved the apparent conundrum, sufficiently at least for the purposes of giving proper advice on the potential application of section 31. 
As was explained by the Court in R v Z, guilty pleas following erroneous advice can be regarded as nullities only where the facts are so strong as to show that the plea of guilty was not a true acknowledgement of guilt; the advice must go to the heart of the plea. For the reasons we have given, we have reached the conclusion that the present case fulfils this stringent criterion. Nonetheless, that without more is insufficient for the Appellant’s purposes. The Court will only intervene where the defence would probably have succeeded and upon being satisfied that a clear injustice has been done. 
The Second Issue
The second issue was whether the Appellant can prove on the balance of probabilities that it is explicable that he did not present himself to the immigration authorities during the course of a short stopover in this country.
Counsel for the Appellant submitted that the Court should accept his client’s evidence and find that he had no idea how long he would have to stay in Brixton but believed that he would be receiving the go-ahead from the agent at any time. He urged us to apply a benevolent, purposive construction to section 31 in the light of the authorities. 
The Court was not aware of any case where the defence has successfully operated in connection with a putative stopover as long as 54 days. The Court was also unaware of any case where a defendant has been lawfully in the UK during the period of his stopover, regardless of its length, although the Court agreed with counsel for the Appellant that this in itself can make no difference to the applicability of section 31 read in conjunction with Article 31. The Court wrestled with the proposition that a person could be here for so long, and on the face of things may not be acting promptly, yet might still avail himself of the provision. 
An individual fleeing persecution is not obliged to claim asylum in the UK on arrival. However, as and when it becomes apparent to him or her that s/he will not be able to leave in the near future, there is a strong argument that at that point the defence is no longer available. The right option then would be to apply for asylum here, or to present oneself to the authorities and seek in effect Article 31.2 protection. This approach to the section is consistent with the overall philosophy of Article 31 that asylum seekers should act with reasonable expedition. 
Did it become apparent to the Appellant that he would not be leaving the UK in the near future? This brought into question his overall credibility. His account was that he was waiting in Brixton with his bag packed awaiting the go-ahead from the agent which he believed could be forthcoming at any time. If this account were true, the Court would hold on these certainly atypical facts that the Appellant should be treated as having been on a short-term stopover. 
The Court commented that the Appellant’s credibility should be called into question as regards what happened on 11th and 12th June, but credibility was not a monolithic entity. There are two factors which pointed strongly in the Appellant’s favour. First, the account he gave to the immigration officer at his asylum interview was detailed, compelling and accepted by the Home Office as being substantially true. Secondly, it did seem clear that the Appellant genuinely wanted to claim asylum in Canada in order to be with his partner, he had no wish or reason to remain here, and it is credible that he was strung along by his agent who was no doubt unwilling or unable to provide a likely timeframe for departure beyond giving emollient assurances. 
It followed that the Court was driven to conclude that the Appellant did have good prospects of establishing that it is explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum. 
R (on the application of DS) v Secretary of State for the Home Department  EWHC 3046 (Admin)
The judgment, available here, was handed down by Mr Justice Kerr on 15/11/2019.
This case concerned a judicial review application which challenged the government’s policy requiring that a person whose claim to be a victim of human trafficking has been rejected, can only have the decision reconsidered if one of a class of bodies intercedes with government on the person’s behalf.
This judicial review application challenged the government’s policy requiring that a person whose claim to be a victim of human trafficking has been rejected, can only have the decision reconsidered if one of a class of bodies intercedes with government on the person’s behalf. The claimant’s individual claim had been resolved by a recent decision on reconsideration after initial rejection, that she was a victim of trafficking.
The essence of the challenge was that the state is responsible under international law instruments for identifying and assisting victims of trafficking and may not delegate important aspects of that duty to non-state bodies. It was said that a rigid policy, not on its face admitting of any exceptions, is leading the defendant to close her eyes and mind to relevant evidence that individuals are victims of trafficking after being wrongly identified as non-victims.
The defendant said the policy was reasonable and lawful; it was a legitimate means of performing the state’s duty in a manner that is efficient, swift and effective. It was necessary and lawful to bar direct access by individuals and organisations, including legal representatives, to the remedy of reconsideration, so as to manage cases in an orderly way, deter repetitious and long winded advocacy and use the state’s resources effectively and efficiently.
The Court held that the reconsideration policy was not lawful. Subject to any further submissions, the Court consider that this judgment was a sufficient remedy for the illegality and that an order attempting to declare the extent of the illegality could be difficult to formulate and would add nothing of substance to the judgment itself. The government was already committed to reviewing the policy.
Both parties agreed that the state is under a duty to identify victims of human trafficking, undertaken by the United Kingdom by signing up to the obligations in the ECAT and arising also under article 4 of the ECHR and the Anti-Trafficking Directive. The parties agree that the United Kingdom is required to perform this duty.  The parties also agreed that the duty to identify victims of human trafficking is performed by the SCA, i.e. by members of the defendant’s staff, on behalf of the United Kingdom, as its chosen instrument, in accordance with the administrative processes of the NRM. 
The Court considered that there is nothing wrong with entrusting to the first responders and support providers the task of receiving and considering requests for reconsideration of individual cases and submitting them to the SCA, where those bodies are presented with information and evidence (which will usually be fresh evidence not previously available) that in the opinion of that body raises a real possibility that a previously taken rejection decision may be wrong or flawed.  This form of triage was plainly lawful, provided it does not replace and usurp the decision making function of the SCA. 
The Court agreed with counsel for the defendant that a nimble NRM with swift decision making is a laudable and desirable policy objective which should be promoted and nurtured.  The Court also accepted that the defendant is entitled to be concerned about the risk that the NRM’s valuable resources will be sapped by vexatious and time wasting reconsideration requests based on flimsy if any foundations.  While the concern was a valid one but the Court found no suggestion that it arises in cases of reconsideration requests undertaken by this claimant’s solicitors. 
The Court considered that there was real force in the counsel for the claimant’s proposition that the SCA cannot refuse to consider a reconsideration request at all, merely because it does not come from a first responder or support provider.  The NRM process plainly and correctly included a discretionary power to reopen negative decisions. The discretion must be exercised in accordance with the duty to identify victims. The duty must be performed of the state’s own motion; it was a continuing duty; and if there has been a prior negative decision, relevant evidence casting doubt on the correctness of that decision must not be disregarded.  To hold otherwise would be to dilute the content of the duty and water down the protection afforded to victims of trafficking by ECAT, the Anti-Trafficking Directive and article 4 of the ECHR, which is absolute and may not be subject to derogation even in time of war or other national emergency. If victims of trafficking could be denied that protection for administrative reasons, the NRM would not be operating in compliance with the international obligations of the United Kingdom. 
In the Court’s judgment, the policy entailed an abdication of the state’s responsibility to perform the identification duty, in cases where a negative decision needs reconsidering in the light of relevant new material and the request for reconsideration is made directly to the SCA, not by a first responder or support provider but by a victim or victim’s friend or relative or representative.  On its face, the policy was rigid and did not admit of exceptions. However strong the merits of a case for reconsideration, the identity of the requesting person may determine whether the request was considered or ignored. That was an unlawful fetter on the discretion to reopen negative decisions. 
Tumbling prosecutions blamed on “disproportionate cuts”
According to the Ministry of Justice’s Criminal Justice Statistics quarterly, England and Wales, July 2018 to June 2019 statistics, the number of individuals prosecuted across all courts fell by 2% to 1.37m, representing almost 30,000 fewer people being prosecuted this year than in 2018. Prosecutions for indictable offences fell by 5% to under 500,000.
The full piece can be read here.
Gazette Investigation: CPS conviction rate “benchmark” never made public
The Law Society Gazette reveals that an undisclosed CPS target could be behind declines in numbers of rape suspects charged since 2016. Having previously denied any change in its approach to charging rape, the CPS has admitted imposing targets from 2016-2018 that might have acted as a “perverse incentive” on prosecutors by deterring them from charging less straightforward cases. The CPS has argued that the targets were intended as a benchmarking tool and did not amount to a change in policy.
The full piece can be read here.
Response to Sentencing Council Consultation on Terrorism Offences Guideline
In his response to the consultation proposing changes to some of the current sentencing guidelines for terrorism offences, the Independent Reviewer of Terrorism Legislation discusses the proposed amendments relating to culpability factors under the Terrorism Act 200 s.12. He suggests that the effect of the proposed amendments is to steer the sentencing judge from ever including an offender who has been convicted of the s.12(1A) offence in the highest culpability bracket (A). He also discusses funding guidelines under the Terrorism Act 2000 s.17.
The full piece can be read here.