In this week’s Digest, the Court of Appeal dismissed an appeal concerning the correct interpretation of section 76(5A) of the Criminal Justice and Immigration Act 2008, which contains the defence of self-defence in so-called “householder cases”, the High Court considered extradition to the Czech Republic on the basis that it would be unjust or oppressive, and HHJ Pringle QC, the Recorder of Oxford, sentences a student at the University of Oxford for stabbing her partner in the leg.
R v Ray [2017] EWCA Crim 1391
Judgment (available here) handed down by the Thomas LCJ in the Court of Appeal (Criminal Division) on 26 September 2017.
Concerning section 76(5A) of the Criminal Justice and Immigration Act 2008, which contains the defence of self-defence in so-called “householder cases”. Appeal dismissed.
Steven Ray, the appellant, stabbed Rory Hemmings – the ex-boyfriend of Kirsty Allen, Ray’s partner – to death during a fight at Ms Allen’s home in 2015. The appellant’s evidence was that he thought that Mr Hemmings had a weapon, and/or might reach for a nearby knife. Thus, Ray himself grabbed that knife and stabbed him. The appellant was charged with murder. He insisted that he had acted in self-defence. The Judge summed the case up in accordance with R (Denby Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin). Ray was convicted by a majority, and sentenced to life imprisonment. The issue in this appeal was whether section 76(5A) of the Criminal Justice and Immigration Act 2008 – which contains the defence of self-defence in so-called “householder cases” – was interpreted correctly in Denby Collins. In that case, the Divisional Court held that the defence requires two questions to be put the jury. First, was the force grossly disproportionate? If ‘yes’, the defendant cannot avail himself of self-defence. If ‘no’, was the force nevertheless reasonable in the circumstances he believed them to be? If it was, he has a defence; if not, he does not. Ray contended that this interpretation put householders in the same position as non-householders, and had not, therefore, provided the requisite protection. He argued that Parliament had intended that, if the jury were satisfied that the force was not grossly disproportionate, then the force must, in law, be regarded as reasonable, such that the defence will have been made out.
The Court of Appeal dismissed the appeal. It held that the interpretation in Denby Collins of the householder defence was correct. If the force was not grossly disproportionate, the effect of section 76(5A) of the 2008 Act, the Court found, is that the jury must consider whether that force was reasonable in all the circumstances. The use of disproportionate force that is short of grossly disproportionate is not, on the wording, of itself necessarily the use of reasonable force, according to the Court of Appeal. The jury are, in such a case where the defendant is a householder, entitled to form the view that the force was either reasonable or not. Therefore, the 2008 Act has, in householder cases, slightly refined the common law, in that disproportionate force may nevertheless be reasonable. The position in non-householder cases, meanwhile, is different; in such cases, the force used is not to be regarded as reasonable if it was disproportionate. While that difference was clear on the language of the 2008 Act, according to the Court, it was narrow, and was not as wide-ranging as the appellant suggested. Accordingly, the Court of Appeal rejected the argument that, provided that the force used by a householder is not grossly disproportionate, then it is necessarily reasonable.
Konecny v District Court Czech Republic [2017] EWHC 2360 (Admin)
Judgment (available here) handed down by Sir Wyn Williams in the High Court on 27 September 2017.
Concerning an appeal against extradition to Czech Republic to serve an eight-year prison sentence for fraud offences. Appeal dismissed.
In 2008, Karel Konecny, the appellant, was convicted, in his absence, of three offences of fraud – in which victims were deprived of property worth approximately £70,000 – in the Czech Republic. He was sentenced to eight years’ imprisonment. Mr Konecny had left for the UK in 2007, at which point there were no proceedings against him and no restriction upon his right to travel and leave the Czech Republic. His long-term partner followed him to this country, and the two of them have lived together here for the last 10 years. The appellant had no knowledge of the proceedings against him until he was arrested and detained under a European Arrest Warrant – first issued in 2013, but not certified until March 2017 – earlier this year. In April, District Judge Ashworth directed that Mr Konecny should be extradited to the Czech Republic. Arguments that his removal would be unjust or oppressive, as per section 14 of the Extradition Act 2003, by reason of passage of time, and that it would constitute a disproportionate interference with his and his partner’s rights under Article 8 ECHR, were rejected. Before the High Court, the appellant contended that the District Judge was wrong to reject both such submissions.
The High Court dismissed the appeal. There was no real basis, it held, to conclude that extradition would be unjust. Mr Konecny had been convicted of serious crimes, and the Court was entitled to infer that the evidence in the Czech Republic justified those convictions. Further, upon his return, the appellant can exercise his right to a re-trial, and the High Court had to assume that it would be fair within Article 6 ECHR. Oppression, meanwhile, is an elusive concept, but the bar, according to the Court, is a high one, requiring more than mere hardship. It is a hurdle that will not be satisfied easily – Gomes v Government of Trinidad and Tobago [2009] UKHL 21. On the facts, it could not be said that the District Judge was wrong to find that removal would not be oppressive. As to Article 8 ECHR, the High Court held that Mr Konecny, due to a previous conviction for like offending in 2003, was correctly regarded as a “particularly dangerous recidivist” in the Czech Republic, and that was a factor favouring extradition – as was the long prison sentence he received, and his right to a re-trial. As to the delay between the offending and the present time – 12/13 years – the Court considered that the District Judge was not wrong simply to categorise it as “unexplained”, and desist from inferring that the District Court in the Czech Republic and/or the National Crime Agency were guilty of culpable delay. The delay was a powerful factor against removal, but, given the very powerful opposing features, the High Court – whilst admitting that it would have been more troubled by the delay than the District Judge – was not persuaded that his decision on Article 8 was wrong.
Sentencing remarks: R v Lavinia Woodward, HHJ Ian Pringle QC, Oxford Crown Court (26.09.17)
In October 2016, Lavinia Woodward, who had both drug and alcohol addictions, began a relationship with a Cambridge University student. In December 2016, he visited Woodward at her accommodation at Christ Church, Oxford University. She had clearly been drinking and, as the evening progressed, her behaviour became increasingly volatile. At one stage, Woodward’s partner contacted her mother, over Skype, to seek her assistance about what to do with her. When she discovered this, she became extremely angry, and stabbed him in the leg with a bread knife. Two of his fingers also received cuts. Woodward then started to turn the knife on herself, and her partner had to disarm her. The wounds that he suffered, though, were relatively minor. The cuts to his fingers were treated at the scene, with steri-strips, and the wound to his leg was closed with three stitches. In April 2017, Woodward pleaded guilty to one offence of unlawful wounding.
As per the sentencing guidelines in relation to Section 20 offences, the Judge considered that this was a case of lesser harm. Whilst Woodward’s behaviour must have been extremely intimidating to her partner, his actual injuries were relatively minor – and certainly less serious in the context of the offence. However, she did use a bread knife as a weapon, and this raised her offence to one of higher culpability. Her case thus fell into category two, which has a starting point of one year and six months’ custody and a range of between one year and three years’ custody. There were no statutory aggravating factors, in the Judge’s view, but Woodward was heavily under the influence of alcohol at the time of the offence. There were, however, many mitigating features. First, she had no previous convictions of any nature. Second, she was genuinely remorseful, and, although it was against her bail conditions, contacted her partner fully to confess her guilt and sorrow. Third, Woodward had an immaturity about her that was not commensurate for someone of her age. Fourth, she suffers from a personality disorder, severe eating disorder, and drug and alcohol dependence. Finally, and most significantly, she has demonstrated that she is determined to rid herself of her addiction, and has undergone extensive treatment, including counselling, to address her issues. Accordingly, Woodward was sentenced to 10 months’ imprisonment, suspended for 18 months.
Other news
Man accused of conspiring to kidnap British model to be extradited to Italy (29.09.17)
A man accused of conspiring to kidnap the British model Chloe Ayling should be extradited to Italy to face trial, Westminster Magistrates’ Court has ruled. Michal Konrad Herba, together with Lukasz Herba, his brother, is facing charges over the alleged abduction of Ms Ayling back in July. Mr Herba was arrested, under a European Arrest Warrant, in the West Midlands in August, and prosecutors have requested that he be sent to Milan, where his brother is in custody, in relation to an offence of kidnapping. It is alleged that Ms Ayling was drugged and bundled into the boot of a car, after being tricked into attending a fake photo shoot, and that the brothers then demanded a €300,000 ransom for her. Mr Herba denies any involvement, and, at an earlier hearing, his lawyers argued that the case was a “sham” invented as a “publicity stunt”. However, District Judge Paul Goldspring disagreed, and held that Mr Herba should indeed be surrendered to Italy. His legal team said that an appeal would be lodged to the High Court.
Sentences for animal cruelty to increase ten-fold to five years in prison (30.09.17)
People who abuse animals in England could now face up to five years in prison, the environment secretary, Michael Gove MP, has said. The ten-fold increase from the current maximum six-month prison sentence is necessary to combat cruelty, according to the Department for Environment, Food and Rural Affairs. The new legislation will also enable the courts to deal more effectively with gangs involved in organised dog fights. Whilst cases of extreme cruelty are rare, Mr Gove MP said, the change in the law would ensure that offenders are properly punished in such rare, but shocking, instances. Under the plans, the courts will retain the ability to hand out an unlimited fine and ban an offender from owning animals in the future. The move would bring maximum sentences into line with other countries such as Australia, Canada, the Republic of Ireland, and Northern Ireland.