Weekly Digest: 2 April 2018

The issue in this appeal was whether the family services which an individual provides as a wife and mother constitute valuable consideration for the purposes of a tainted gift under s. 78(1) of the Proceeds of Crime Act 2002 (“the 2002 Act”). The appellant sought to challenge the ruling of the judge in confiscation proceedings regarding a property acquired by the appellant and his wife in their joint names. The appellant’s wife made no financial contribution to the purchase of the property and there was no sharing of relevant expenditure in the household at all. It was, in the judge’s view, a tainted gift for under s. 77(2) of the 2002 Act.

The appellant advanced two arguments on appeal:

1. For the purposes of the tainted gifts regime, there had been no transfer of property by the appellant to his wife as required by s. 78(1). At the time the property was transferred into the joint names of the appellant and his wife, the appellant did not hold an interest in it – rather the vendors did – and therefore could not transfer it.
2. The judge had erred in focussing on the financial contributions of the appellant and his wife at the time of the purchase; this was too narrow for the purposes of s. 78(1) of the 2002 Act. That she did not make any financial contribution did not make it a gift; rather her contributions were as a wife and mother.

Both arguments failed. Despite the seductive logic of the first, if such a submission were to succeed, it would undermine the entire statutory regime of the 2002 Act. It would result in the sophisticated criminal applying the proceeds of his criminal conduct to the purchase of property in joint names. Further, the argument replicated an argument advanced on similar facts in Thompson [2015] EWCA Crim 1820; in that case Macur LJ put it thus:

“The wife’s legal and beneficial ownership was conveyed to her but was dependent upon an endowment made by virtue of the monies held in the account of the husband, which he effectively gifted to her by his consent to the conveyance drawn.”

The latter failed primarily for the reason that the relevant provisions of the 2002 Act are drafted in terms of money or money’s worth, to be objectively assessed. Thus, the services the appellant’s wife provided did not constitute “consideration” of “value: which could to any extent come within s. 78(1).

The court also offered guidance to Crown Courts on the operation of the tainted gifts regime under s. 78 of the 2002 Act at [58].

(1)  The approach required under s. 78 (1) involves the following steps:

• first, place a value upon the property transferred, at the time of transfer;
• (second, assess whether consideration has been provided by the recipient of the property and (if it has) assess the value of the consideration provided;
• third, assess whether the value (if any) of that consideration (if any) is significantly less than the value of the property transferred, at the time of transfer;
• fourth, if there is found to be a significant difference apply the calculation prescribed in s. 78 (2); thereafter also applying the provisions of s. 81 as appropriate.

(2) Each of steps (i), (ii) and (iii) above must always be undertaken objectively and on an evidence-based approach.  There is no room, in this context, for “plucking a figure out of the air” or anything like that.

(3) Where the consideration which is asserted to have been provided by the recipient of the property is not in the form of a direct financial contribution or contributions, then it is necessary to examine the evidence rigorously and closely to see if the asserted consideration (whether by way of “services” or otherwise) is capable of being assessed as consideration of value and (if it is) to what extent.

(4) Any consideration which is asserted to have been provided must be attributable to the transfer of property in question.

(5) Any consideration which is asserted to have been provided must, for the purposes of s. 78 (1), be capable of being ascribed a value in monetary terms.

(6) Each case, ultimately, will depend on its own facts and circumstances.

In this case, both appellants were convicted of offences but wished to raise the defence under s. 45 of the Modern Slavery Act 2015 (“the 2015 Act”); i.e. they were not guilty of the offences they were convicted of as, being 18 or over, they had been compelled to do the act constituting the crime, the compulsion was attributable to slavery and, in the circumstances, objectively they had no real alternative. At their respective trials, both judges came to the same conclusion that the legal incidence, on the balance of probabilities, was impliedly shifted to the defendant by s. 45 of the 2015 Act.

The Court of Appeal held, however, that on a true construction of s.45, there was no such reversal of the legal burden, but rather the burden on the defendant was only evidential. S. 45 was clearly drafted in the language of a defence, not an excuse or proviso. The opening words of the section were a strong indication that imposing a reverse legal burden would be tantamount to requiring a defendant to prove specific elements establishing his or her innocence. Further, the United Kingdom’s international obligations under Article 4 ECHR and Directive 2011/36EU of the European Parliament and Council of Europe on preventing and combatting trafficking in human beings and protecting its victims, which underlie the 2015 Act, justify the burden falling on the prosecution to disprove the elements of the defence.

In light of this conclusion, the individual appeal in MK was allowed, the conviction quashed, and a retrial ordered. MK’s convictions were unsafe since the direction given by the judge as to the burden and standard of proof were wrong. In the case of Gega, despite the error in the direction, the evidence against the accused in that case was found to be overwhelming and the conviction safe; the appeal was accordingly dismissed.

The applicant was a taxi driver, whom the complainant alleged had forced him to perform oral sex on him during a taxi ride home on the 16 October 2016. The applicant averred that the oral sex was consensual, and that the complainant had made physical advances which he had resisted. The applicant was convicted of rape on 16 January 2017.

The basis of this appeal was that fresh evidence corroborated the applicant’s story such that it raised reasonable doubt as to the guilt of the accused. The evidence of a Mr Clarke, a retired taxi driver from Liverpool, was that he had an experience when driving his taxi with a man whom he identified, with the help of the applicant’s wife, as the complainant, who had offered oral sex in lieu of payment for a taxi ride. Mr Clarke had read about the applicant’s case in the local newspaper and contacted the applicant’s wife through the owner of the local newsagent, who was a mutual friend and put the two in touch.

In the court’s view, however, inconsistencies in the evidence of both Mr Clarke and the applicant’s wife rendered the evidence unreliable. Further, the evidence of identification was, in the view of the court, worthless as, inter alia, his view of the passenger had only been fleeting and there had been a passage of some 19 months between his encounter with the passenger and his identification of him as the complainant via social media photos provided by the applicant’s wife. Thus, applying the appropriate test to a case like this (Dial v. Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660, at [31]), as the evidence did not raise reasonable doubt as to the guilt of the accused, leave to appeal against conviction was refused.

The appellants were all sentenced on 7 April 2017 in the Crown Court sitting at Blackfriars. Four appellants, Cuni, Gonzalez, Abazi, and Byberi were sentenced for one count of conspiracy to supply Class A drugs. Elezi and Cera were sentenced, respectively, for one and two counts of possessing Class A drugs with intent to supply. The conspiracy in question had been to supply wholesale quantities of cocaine of high purity; imported cocaine was distributed to top-tier dealers in return for cash payments. The transactions took place in service apartments.

The court made some general observations about the principles to be applied in this case.

1. The amounts of drugs well exceed the indicative amounts in the Sentencing Council Guidelines on drugs offences, such that a sentencing judge is entitled to exceed the maximum sentences in the Guidelines.
2. R Sanghera [2016] EWCA Crim 94 provided helpful guidance in that sentences for more than 30 years would be an appropriate starting point for the prime mover in an importation of 2000-3000 kg. Apart from extraordinary figures like that, there seems to be a ceiling of about 30 years.
3. Other authorities relating to appeals where sentences have been manifestly excessive were not helpful in this case.
4. Those who play lesser roles in large conspiracies can expect higher sentences that the sentences in the Guidelines which apply to amounts of drugs which are themselves in the Guidelines.

The court further noted that just because the lead sentence was excessive did not mean that the lesser sentences would be. Whether they were, rather, depended on a number of further factors.

Cuni

The judge’s starting point had been 33 years in this case. This was, in the court’s view, manifestly excessive in light of the guidance provided by Sanghera. Although the conspiracy was substantial, he had only carried approximately 900 kg of cocaine. Thus, 28 years was the appropriate starting point and, after full credit for the guilty plea, the correct sentence was 19 years’ imprisonment.

Gonzalez

The judge had been entitled to conclude that this appellant’s role was more significant than he had averred. In light of this, the sentence of 24 years’ imprisonment was not manifestly excessive.

Byberi

The starting point in this case was 22 ½ years’ imprisonment. The judge was entitled to find that this appellant played a more significant role for the reasons he gave; he was trusted, UK-based contact. The starting point was appropriate.

Abazi

This appellant did not challenge the Recorder’s findings, but rather relied on R v. Apostu [2016] EWCA Crim 1150 for the correct starting point. The court did not find that authority useful, however, since it did not concern a conspiracy. The Recorder’s explanation as to why he was satisfied beyond any doubt that Abazi had played a significant role in the conspiracy was unimpeachable, and the sentence imposed consequently not manifestly excessive.

Elezi

The amount of Class A drugs which was the subject of Elezi’s conviction was the indicative amount for Category 1. That starting point is 7 years and the range is 6 to 9 years. There was no basis with interfering with the Recorder’s sentence for that offence.

Cera

The starting point for Cera’s sentence, despite the fact that he was not charged with conspiracy, was quite close to some of those who were. The sentence imposed by the Recorder did not, in the court’s view, adequately account for the difference between Cera’s limited role, and the roles of the conspirators, or the scale of criminal activity to which each pleaded guilty or was convicted. The Recorder should have imposed a total sentence of 9 years’ imprisonment rather than 12.

Drugs with a street value of £37 million were discovered in a car exported from Pakistan by the defendant.  Three co-defendants (Q, K and S) had been tried separately from the appellant. Q and K were convicted and sentenced to 21 and 19 years’ imprisonment respectively; S was acquitted. The Crown alleged that the appellant, K, who ran a car sales business, was involved in arrangements to remove the drugs from the car. There had been telephone calls between the defendant and Q on the day the car was to be delivered to a garage in the UK. The defendant denied knowledge of the conspiracy and said that the telephone discussions were unrelated to the drugs. He had previous convictions from between 1996 and 1999, including for dishonesty offences. S, who was an employee of the defendant, was called to give supporting evidence, despite having said at his own trial that he believed the defendant to have been involved in the conspiracy.  The defendant was convicted and appealed on the basis that his counsel had erred in (1) failing to explain that he had a choice whether to adduce his previous convictions; (2) failing to explain at trial that information had been wrongly omitted from his defence statement, which resulted in the judge directing the jury that it could draw an adverse inference from that omission; (3) deciding to call S as a witness.

The Court of Appeal, in upholding the defendant’s conviction, stated that the advice provided by the defendant’s counsel was not outside the range of competent counsel.  It was likely that the defendant did understand that he had a choice about whether to adduce his bad character.  The purpose of adducing the defendant’s bad character was to make the point that his previous offending was relatively low-level compared to the offences of which he had been accused.  It also demonstrated that the defendant was being candid.  In relation to the other complaints made about counsel’s conduct of the case, the Court of Appeal held that the defendant’s instructions had changed which made the conduct of his defence challenging.  Despite the fact the defendant did not accept this, the fact that he did not complain at the time about supported counsel’s version of events. The decision to call S as a witness was not without risk, but that this was not unusual and the decision was one that it was reasonable for counsel to have made.

At the time of the offence, the defendant was 42.  He was on the Sexual Offences Register and subject to a sexual offences prevention order.  He had committed 45 previous offences, nine of which were sexual offences, including indecent assault, rape, and most recently causing a child under 16 to engage in sexual activity. His other convictions, for which he had been imprisoned, were for burglary, offences against the person, robbery and driving offences.  The defendant suffered from a number of mental health issues, but the consensus was that the impact of his mental health on his sexual offending was minimal.  For the rape, he was sentenced to life imprisonment with a minimum term of nine and a half years.  For the sexual assault, he was sentenced to a concurrent sentence of 12 months’ imprisonment.  The defendant appealed against the imposition of the life sentence and the minimum term.

The Court of Appeal upheld the imposition of the life sentence on the basis that of the defendant’s previous convictions (particularly for sexual offences), the level of danger he posed, the absence of any reliable estimate as to how long he would remain a danger, and the inappropriateness of any alternative sentences.  In relation to the length of the minimum term, judge concluded that the offence of rape fell within category 2B of the definitive guideline of the Sentencing Council, for which the starting point is 8 years’ custody with a range of 7 to 9 years. Having regard to the aggravating and mitigating factors in the case, after a trial, if he had been sentencing the appellant to a fixed term, the judge said he would have imposed a term of 19 years’ imprisonment. Such a sentence was more than twice the upper limit of the range for such an offence. Halving the sentence to represent the period that would be served in custody if a determine sentence of that length was passed, the minimum term was set by the judge at nine and a half years less credit for the period already served in custody.  Based on the lack of mitigating features and the presence of several aggravating features, the Court of Appeal held that the trial judge was entitled to take the offence into a higher category than the one in which he initially placed it and to take the determinate sentence into a higher category.  It was held, however, that the appropriate determinate sentence for the offence of rape in combination with the earlier sexual assault was 17 years. The appeal was therefore allowed reducing the term to be served to one of eight and a half years less the period spent on remand.

The defendant was a commercial balloon pilot who had worked for a company in Bristol on a self-employed basis.  After his contract was terminated in acrimonious circumstances, the defendant travelled to Nepal from where he sent several emails to the company’s directors.  In these emails, the defendant threatened to publish damaging material about the company on the internet unless he received several sums of money.  The defendant was charged with blackmail.  The trial judge ruled that the court had no jurisdiction to try the defendant as the demand for money was made from outside England and Wales.  The judge ruled that a prosecution could not be brought within the jurisdiction against an individual who made a blackmail demand abroad and sent it by email to a person in England and Wales.  The prosecution appealed to the Court of Appeal pursuant to section 58 of the Criminal Justice Act 2003.

Allowing the appeal, Simon LJ held that, by virtue of section 21(1) of the Theft Act 1968, the actus reus of blackmail is a “demand with menaces”.  The two concepts are not severable.  The court accepted that prior to the enactment of the Criminal Justice Act 1993, as a result of the judgment of the House of Lords in Treacy v DPP [1971] AC 537, there was uncertainty as to how jurisdiction to try blackmail was established.  The Court of Appeal held that section 4 of the Criminal Justice Act 2003 was intended to resolve the jurisdictional questions raised in Treacy and did so by adopting both sets of views as to how jurisdiction was established. So far as blackmail is concerned, the consequence of this approach is that the communication of a demand founded jurisdiction if it were sent either (a) from a place in England and Wales to a place elsewhere, or (b) from a place elsewhere to a place in England and Wales.  In relation to what constitutes the “relevant event” for the purpose of section 2 of the Criminal Justice Act 1993, the court held that this is the making of the demand with menaces.  The “relevant event” is not the communication of the demand, as the actus reus of blackmail is established as soon as the demand is made.  The court allowed the prosecution’s appeal and ordered a retrial.

Criminal barristers in England and Wales have voted to stage mass walkouts and refuse new publically funded cases in protest against sustained government cuts to the justice system.

The full piece can be read here.

Nick Hardwick, the former chair of the parole board who was sacked after the High Court’s decision to block the release of Worboys, has predicted that the decision will lead to wide ranging parole reform.

The full piece can be read here.

A book written by an anonymous author which lays bare the failings in the criminal justice system is to be given to every MP.

The full piece can be read here.

Civil liberties groups are alarmed that a guidance paper, which is intended to prevent the country’s intelligence officers from becoming involved in human rights abuses, is being rewritten in secret. The worry is that the guidance will be watered down.

The full piece can be read here.