Weekly Digest: 20 August 2018

Knaggs (K), Hadley (H), and Rich (R) were each convicted of conspiracy to import cocaine. They were sentenced to 20, 18, and 14 years’ imprisonment respectively. Ruiz-Henao (RH) was also convicted, at a later trial, of the same and sentenced to 16 year’s imprisonment. K, H, and R appealed against their conviction upon two grounds, each of which related to the disclosure, admissibility of evidence relating to communications between alleged conspirators, namely:

• mobile telephone calls which were said to have been intercepted by the Dutch Authorities (“the Dutch Intercept Ground”); and
• a Yahoo email account (slimjim25@ymail.com), which was said to be used to communicate via draft emails (“the slimjim Ground”).

On behalf of K, H, and R (and ultimately RH, too) it was said that material now available shows that there was, and continues to be, serious non-disclosure by the respondent of materials relevant to the lawfulness of the way in which the evidence was obtained. RH also sought permission to renew an application for leave to appeal on the ground that his rights under article 6 ECHR had been violated.

Before trial, K had queried the admissibility of the Dutch intercept evidence. The judge had found that, if the calls had been recorded outside the UK, the statutory bar under the Regulation of Investigatory Powers Act 2000 (“RIPA”) did not apply and, subject to s. 78 Police and Criminal Evidence Act 1984, they would be admissible if relevant. He was satisfied that the evidence had been lawfully obtained in the Netherlands and lawfully requested by the UK authorities, that it was wholly reliable and should not be excluded. The appellants asserted that evidence newly disclosed by the Crown showed that there had been serious non-disclosure of materials concerning whether the evidence had been lawfully obtained. They claimed that it supported their assertion that the obtaining and provision of the Dutch intercept had been for a UK prosecution in circumvention of RIPA, and that the appeal could not proceed until further disclosure was made. They contended that special counsel should be appointed and claimed that it was unfair that the court, but not they had seen the newly disclosed evidence, causing an article 6 ECHR problem. The appellants sought to adduce fresh evidence said to bring context to the newly-disclosed material. They contended that the fresh evidence on the email ground cast into doubt the origins of that evidence, its legality and admissibility, alleging that it was the product of unlawful monitoring or unlawful snapshotting.

RH – Article 6 ECHR

The nature of RH’s renewed application was that, as he had been unable to transfer his legal representation, he had been obliged to represent himself and consequently was not able to put forward his true defence. Further, the applicant alleged that he had been unable to examine any of the witnesses and, in the absence of an interpreter, had been denied his fundamental right to understand and contribute.

The Court concluded that Article 6 had not been breached. The trial judge had properly assessed RH’s English ability and been scrupulous in his following of the relevant regulations and authorities when considering his application to transfer legal representation. RH had chosen to represent himself and RH had not been prevented from giving, calling or challenging evidence.

Disclosure/Special Counsel

Having regard to the principles outlined in R v. H [2004] UKHL 3, [2004] 2 A.C. 134, R v. Chisholm (John) [2010] EWCA Crim 258 and R v. Austin (Herbert Charles) [2013] EWCA Crim 1028, [2014] 1 W.L.R. 1045, it was appropriate for the Court to scrutinise the material that the respondent had brought Court for three reasons: (i) to identify, if present, any material that should have been disclosed hitherto; (ii) to identify, if present, any material in relation to which it would be appropriate to appoint special counsel to assist appellants or the Court in any way; and (iii) to ensure that there was no possibly relevant material which had not been provided and whether special counsel was required to assist in this regard.

Having reviewed the material, the Court concluded that there was nothing omitted that should have been disclosed, nor was there any regard in which special counsel would have assisted.

Article 6 ECHR

The submission that the appellants had not seen the material did breach Article 6 was misconceived; the Court’s approach was in line with authorities, particularly Austin, and the appellants were not deprived of any material which would have allowed them to pursue admissibility or abuse of process grounds.

Dutch Intercept Ground

There had been no failure of disclosure in relation to the Dutch Intercept material and the trial judge had been entitled to admit it. Further, the Court declined to accept the further evidence on this point as it did not afford any basis for allowing the appeal.

slimjim Ground

There was nothing to suggest that the emails were the subject of any illegal snapshotting or monitoring. Therefore, the judge had been entitled to admit it. Further, the Court refused to admit the fresh evidence as the appellants urged as it afforded no ground for allowing the appeal.

Dawn Cranston and Denise Cranston were convicted of the manslaughter of Jordon Burling by gross negligence. Jordon died shortly before his 19^th birthday. Dawn was his mother and Denise his grandmother. Abigail Burling was convicted of allowing the death of Jordon, her brother, in circumstances where she must have been aware of the serious harm to him through the gross criminal neglect of her mother and grandmother. In addition, Dawn was to be sentenced for the offence of endeavouring to conceal the birth of a child, contrary to s. 60 of the Offences Against the Person Act 1861. An offence to which she pleaded guilty.

As for the facts surrounding Jordan’s death, the immediate cause was bronchopneumonia, that in turn was caused by three factors: malnutrition, immobility, and infected pressure sores. His malnutrition was so extreme that he weighed only 5 stone 11 lbs when he died. Both Dawn and Denise Cranston had assumed responsibility for his care when he became emaciated and immobile from April 2016 onwards. The sole breach of duty of care relied upon by the prosecution was Dawn and Denise’s failure to summon medical assistance to attend to Jordon’s worsening condition; as the judge put it: ‘anyone could [have] see[n] that such horrible wounds required immediate medical attention in hospital’ ([8]). The claim that Jordon constantly rejected medical assistance was rejected. Abigail Burling did not bear the same degree of responsibility. Nevertheless, she knew perfectly well, through constant attendance at the family home, how seriously ill her brother was and yet she too failed to obtain medical assistance.

As for Dawn and Denise Cranston, there were the following aggravating factors: first, that Jordon was entirely dependent upon them; second, their gross negligence persisted over a long period of time; and third, the delay in summoning medical assistance must have caused Jordon immense physical suffering. Further, there were other aggravating features which increased Dawn’s culpability; namely, as his mother, she failed to seek medical assistance, but had also lied about doing so. Mitigating features were limited; the only significant one being that Dawn Cranston’s culpability was reduced by reason of a persisting dissociative disorder. Accordingly, Dawn received 4 years’ imprisonment for the manslaughter count and Denise 3 years. Finally, Abigail Burling received a significantly shorter term of imprisonment, given that her culpability was less and, being still 25, had no previous convictions – 18 months.

Finally, there was the s. 60 offence. Dawn had given birth to a child in 2002, having been unaware of the pregnancy until the child’s birth. The police had found a rucksack concealed on the top shelf of her wardrobe which contained the remains of a full-term baby of between 38-40 weeks. On this count, Dawn Cranston received 12 months, to run concurrently with the term imposed for the manslaughter offence.

David Clark (DC) was convicted of the murder of his wife, Melanie Clark. Since 2015, their relationship became difficult. On the evening of the offence, New Year’s Eve 2017, DC and his wife had gone to visit friends. They left around 1030 and shortly after returning home ‘an ever increasingly vitriolic argument’ developed between the two of them. That argument was conducted both by a series of WhatsApp messages and verbally. Directly before the incident, Melanie had sent DC a message mocking him and saying she wanted him to leave the house in the morning. DC could not handle the rejection. He walked into the bedroom with a kitchen knife and stabbed Melanie with severe force through the chest. She offered no resistance and there were no defensive injuries to her body. She had not been violent towards him. DC, in a highly destressed state, immediately called 999 and reported the incident. At trial, the jury had rejected DC’s defence; namely, that he was the victim in an abusive relationship with his wife.

In terms of aggravating features, there was the use of the knife and the severe force of the stabbing. Further, the fact that the attack took place in the victim’s own bedroom at a time when DC was severely intoxicated. As regards mitigating factors, there was no premeditation and DC was a man of previous good character. From the outset he had shown remorse and, pursuant to s. 11(a) of Schedule 21 to the Criminal Justice Act 2003, the judge considered the provocation as a mitigating factor. Overall, the aggravating factors balanced the mitigating factors such that the appropriate minimum term for DC’s life sentence was 15 years’ imprisonment.

Thomas Wyllie (TW) and Alex Bolland (AB) were convicted of conspiracy to murder. TW was also convicted of one count of unlawful wounding. Both offenders were just 14 years of age. They planned to murder teachers and pupils at the school they attended in North Yorkshire in a re-enactment of the April 1999 Columbine school massacre in Colorado USA. AB was bullied at school over a period of years; it had a profound effect on AB and the school authorities had done nothing to address his complaints. He became part of the conspiracy by way of revenge. TW, on the other hand, had become fascinated with the media attention given to American school shootings. TW saw himself as somebody outside the system, modelling himself on the apparent leader of the Columbine pair. Both teenagers had consumed vast amount of internet material on the subject of school mass-shootings and had even taken steps to procure items for making explosive devices at home. They were both, therefore, sentenced on the basis that there was a firm plan, specific targets in mind as well as an intention to carry out indiscriminate explosions, that they had carried out research to prepare making bombs, and expected they would be able to procure firearms in the not too distant future.

TW was, in the judge’s view, the leader of the conspiracy. On the basis of psychiatric evidence, TW was able to create menace and fear in others and express homicidal expressions about people whom he felt had angered or thwarted him. This was, in part, evidenced by the facts of the offence of unlawful wounding. In a ceremony of scarification, TW had carved his name onto his then 13 year-old girlfriend’s (A) back; in order to do this, TW was in a position of trust, one that he abused. In light of the above, the judge was driven to the conclusion that TW was a dangerous young offender. On count 1, the sentence was one of 12 years custody, with an extended period of licence, pursuant to s. 226B (1) Criminal Justice Act 2003 (CJA), of 5 years. On the count of unlawful wounding, the sentence was one of 12 months to run concurrently. A restraining order was also imposed against TW in favour of A.

As for AB, he was not the prime mover of the conspiracy. AB, however, when questioned initially at school, had made full admissions to the staff about the conspiracy, although this also disclosed that AB was not a simple follower of TW, but took an active part in the conspiracy. While there was evidence that AB presented a future risk, the judge was not persuaded that he was dangerous for the purposes of the CJA. However, neither a youth rehabilitation nor a detention and training order was suitable, such that AB was sentenced to 10 years’ detention, under s. 91(1) Powers of the Criminal Courts (Sentencing) Act 2000.

 Two letters published by the Guardian on Friday 17 August 2018, written by Labour Peer Willy Bach and Christine Waters, a retired magistrate, call for the ‘urgent’ consideration of the legal aid situation and for the government to listen to those whom the system is failing.

The letters are available here.

 The government must soon respond to the latest challenge to the Brexit vote. A challenge launched in the High Court which alleges that the Electoral Commissions findings on BeLeave and Vote Leave, renders the Brexit vote unlawful.

The full piece is available here.

The number of prosecutions in the UK has reached its lowest since records began, according to Ministry of Justice Figures. This is despite an increase in recorded crime overall. The figures showed that 1.61 million people were either prosecuted or given an out-of-court disposal in the year ending March 2018, a fall of 7%.

The full piece can be read here.