This week’s Digest considers one judgment of the Court of Appeal and one judgment of the High Court. In the first the Court of Appeal considered whether the trial judge ought to have left loss of control to the jury. In the second the court considered whether section 2(5)(b) of the Extradition Act 2003 operates as a bar to the extradition of a person who is sought to face a hearing whether to activate a suspended sentence.
The judgment, which is unavailable, was handed down by Simon LJ on 25 January 2018.
The Court of Appeal held that the trial judge was correct not to leave loss of control to the jury and gave guidance on the applicable principles. The court agreed with the trial judge’s conclusion that there was no evidence to establish the existence of the final limb of the partial defence.
The defendant fatally stabbed the two victims during an altercation in their shared living accommodation. His defence was that he had been attacked by the victims and that he was therefore acting in self-defence. The prosecution case was that the defendant had not been acting in self-defence. Even if he had been, it was argued that his violently aggressive attack went beyond what was lawful. During the course of the trial, the judge ruled that loss of control should not be left to the jury. Although there was evidence to support the existence of both a loss of control and a qualifying trigger, the judge ruled that the defendant’s reaction was so extreme and so protracted that no jury properly directed could conclude that the notional reasonable person might have reacted or behaved in the same or a similar way (as required by the final element of the partial defence). The defendant appealed on the basis that the evidential threshold that must be crossed before the partial defence is left to the jury is minimal and that the judge had adopted the incorrect approach by not viewing the evidence in a fashion that was most favourable to the defendant.
The Court of Appeal held that the judge had taken the right approach. The court recognised that the terms of section 54(5) and (6) of the Coroners and Justice Act 2009 refer to “sufficient evidence”. The court cited Gurpinar [2015] EWCA Crim 178 in which Lord Thomas CJ stated that “it is clearly the judge’s task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence. The judge is bound to consider the weight and quality of the evidence in coming to a conclusion”. It was held that the judge clearly had this approach in mind in the instant case. The Court of Appeal emphasised that, since a trial judge is best placed to assess the relevant evidence, it would not readily interference with his or her judgment. The judge had also explicitly warned himself against usurping the function of the jury. The Court of Appeal concluded that the “judge was fully entitled, in our view, to conclude that such ferocious multiple stabbings with that intent could not conceivably be consistent with the notional reasonable man’s possible reaction. In our view, that conclusion was supported by the evidence viewed most favourably towards the defence and was reasonable, and in any event not one which this court could properly review as a ground of appeal”.
The judgment, which is unavailable, was handed down by Green J on 19 June 2018.
The appellant appealed against the District Judge’s decision to extradite him to the Czech Republic on the basis that section 2(5)(b) of the Extradition Act 2003 operated as a bar to the extradition of a person who was sought to face a hearing whether to activate a suspended sentence. The Divisional Court dismissed the appeal and held that there was no provision in Council Framework Decision 2002/584/JHA which excepted requests for the extradition of convicted persons sought to face a hearing to determine whether a prior sentence should be activated.
The appellant was convicted of an offence in the Czech Republic and received a suspended sentence. A European Arrest Warrant (“EAW”) was issued requiring him to attend a hearing at which the court would determine whether to activate the suspended sentence. It was submitted on behalf of the appellant that section 2(5)(b) of the Extradition Act 2003 precluded his extradition on the basis that the request did not fall within the phrase “… for the purpose of being sentenced” as he had already been sentenced. It could therefore not be argued that the appellant would be returned for the purpose of being sentenced. It was further submitted that the appellant’s extradition would not fall within the phrase “for the purpose of serving a sentence of imprisonment” as he would not automatically serve a sentence of imprisonment. For the same reason, it could not be said that the his extradition was “for the purpose of serving another form of detention”. Finally, it could not be said that the appellant was unlawfully at large.
The court rejected these submissions and held that section 2(5)(b) covers the situation of a requested person whose extradition is sought for a hearing to decide whether (or not) to activate the custodial element of a past conditional sentence. It was held that the extradition system creates a seamless mechanism governing the return of persons who are sought to face trial or serve a sentence and it does not countenance particular types of sentence imposed following conviction falling outwith the extradition regime. It was held that there is no basis in Council Framework Decision 2002/584/JHA for the proposition that there is a category of criminal judgment which falls outside the regime. This was said to follow from Article 1(1) and section (2) of the Decision, which defines an arrest warrant and the concomitant duty on Member States to execute “any” warrant on the basis of mutual recognition. The court observed that the purpose of the regime is set out in recital (5) which refers to the purpose behind a EAW as being “execution of prosecution” and it covers “pre-sentence and final decisions”. There is no provision in the Decision which excepts requests for the extradition of convicted persons sought to face a hearing to determine whether a prior (suspended) sentence should be activated. In the court’s view if such an important category of sentence was to be subject to an exception that it would have been expressly designated as such and further in the recitals to the Framework Decision a reasoned basis for the exception would have been given.
The court also held that the appellant’s argument collided with the basic purpose behind the Framework decision and the Extradition Act 2003, which was recently reiterated in the CJEU’s judgment in Case C-571/17 PPU Ardic (22nd December 2017), in which it stated:
“…It should be pointed out that Framework decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or accused of having infringed criminal law, to facilitate and accelerate judicial co-operation with a view to contributing to the objectives set for the European Union to become an area of freedom, security and justice, founded on the high level of trust which should exist between the Member States in accordance with the principles of mutual recognition…”
The court stated that a person sought in order to face a hearing to decide whether a prior suspended sentence should be activated is by no means in an unusual situation. No reason had been advanced in argument to explain why such a gaping hole in the extradition system would amount to good policy. The court cited the judgment of the Supreme Court in Goluchowski [2016] UKSC 36 in which Lord Mance stated:
“The present appeals are however concerned with sentences of imprisonment following conviction which did not take immediate effect. It is a notable feature of the Framework Decision and the 2003 Act that neither appears to show any consciousness of the possibility of such sentences, which are by no means uncommon. That cannot mean that they are not covered. The Framework Decision and the 2003 Act must be understood and made to work in a manner which would cater for such sentences.”
The court rejected the appellant’s attempt to distinguish this judgment on the basis that on the facts the judgment sought to be enforced against the requested person was definitive, and the EAW was to have him returned to prison. This was characterised as a distinction without a difference. It would also create a perverse incentive to minimise the rights of requested persons on return.
The third reason why the court did not accept the appellant’s arguments is that they ran counter to the jurisprudence of the CJEU in relation to suspended sentences. There is no judgment which addresses precisely the scenario arising in this case, but the court held that the case law that does exist supported the court’s conclusion.
The fourth reason that led the court to reject the appellant’s submissions is that the extradition system is based upon principles of international comity, mutual respect and “… a high level of confidence between the Member States “.
The fifth and final reason why the court rejected the appellant’s submission related to the argument that the phrase “unlawfully at large” in section 68A of the Extradition Act 2003 , and in case law considering the passage of time under section 14 thereof, is relevant. The court held that they are not.
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