This week’s Digest considers four judgments of the Court of Appeal. Two of the cases were referred to the Court of Appeal by the Attorney General on the basis that the sentences passed by the respective trial judges had been unduly lenient. In the third case, the Court of Appeal considered whether a decision not to permit the indictment to be amended constituted a terminating ruling. In the fourth case, the Court of Appeal considered whether the appellant’s conviction for manipulating LIBOR was safe despite the failure of the prosecution’s expert to comply with the Criminal Procedure Rules.
R v Cook [2018] EWCA Crim 530
The judgment of the court, available here, was handed down by Treacy LJ on 14.03.18.
This was an appeal against sentence on the grounds that the judge had miscategorised the offence of attempting to cause or incite a child to engage in sexual activity as Category 1A. The appeal was allowed; recent authority showed that the correct category, in the circumstances, should have been 3A.
This appeal concerned count 1 of a five-count indictment to which the offender plead guilty; namely, attempting to cause or incite a child to engage in sexual activity. A sentence of three years’ imprisonment was imposed. The facts showed that a police officer posing as a 13-year-old female was approached online by the appellant. There were repeated requests made by the appellant for images of the girl and he asked whether she would allow him to take her virginity. When it became clear that things were not progressing in the way the appellant wished, the incessant sexual messaging stopped.
The ground on which the appeal was brought was that the judge, when imposing the sentence, had fallen into error in classifying this offending as Category 1A. On the appellant’s submission, where the case involves inciting rather than causing sexual activity without physical contact or communication, Category 3A is the correct category (as per the Court’s decision in R v Gustafsson [2017] EWCA Crim 1078; see also R v Buchanan [2015] 2 Cr. App. R (S) 13 and Attorney General’s Reference No 94 of 2014 [2014] EWCA Crim 2752). In light of those authorities, there had been a miscategorisation. Thus, the appeal was allowed. A sentence of 21 months would have been appropriate and, deducting one-third for credit for his guilty plea, a sentence of 14 months’ imprisonment was substituted on count 1.
R v Pollard [2018] EWCA Crim 439
The judgment of the court, available here, was handed down by McCombe LJ on 13.03.18.
This was an application to refer to the Court of Appeal sentences passed on two offenders for sexual crimes against children which he submitted were unduly lenient. The application was successful and the original sentences, of 15 months’ imprisonment suspended for 2 years, were substituted for sentences of immediate imprisonment for 2 years and 9 months and 3 years and 6 months respectively.
This was an application by the Solicitor General, under s. 36 Criminal Justice Act 1988, for leave to refer to the Court of Appeal sentences passed on two offenders which he submitted were unduly lenient. On 2 November 2017, after a joint trial at the Crown Court in Exeter, Lee Pollard (‘the First Offender’) was convicted of one offence of sexual activity with a child, contrary to s.9 SOA 2003; the offence was penetration of the vagina of a 14-year-old with his penis. Marc Allen (‘the Second Offender’) was convicted of two such offences, involving penile penetration of the mouth of the same child and that of another child. The offences all occurred at the same premises on the same night in the context of an event described as “akin to an orgy”. Both were sentenced to imprisonment for 15 months suspended for two years. In sentencing, the judge said he would undoubtedly feel a sense of injustice if the Second Offender received a different sentence to the first. He then indicated that he would pass a suspended sentence of imprisonment on each and, in doing so, made no reference to sentencing guidelines.
On behalf of the Solicitor General it was submitted that these were Category 1A offences within the Guideline in view of penile penetration and significant age disparity between the offenders and the victims. The starting point should be, accordingly, 5 years’ custody, with a range of 4 to 10 years. Aggravating factors identified included (i) taking advantage of the vulnerability of the victims, (ii) commission of the offences in the presence of others, (iii) offending under the influence of alcohol and drugs, and (iv) (in respect of the Second Offender) two victims. Mitigating factors included (i) absence of previous convictions, (ii) (for the First Offender) changed personal circumstances, and (iii) the delay in the commencement of the proceedings.
The original sentences were quashed by the court as unduly lenient and substituted with a sentence of 2 years and 9 months for the First Offender and 3 years and 6 months for the Second. The present case clearly fell within Category 1A. Given the various mitigating and aggravating factors, it was right that the First Offender’s sentence be shorter than the Second Offender’s. Both sentences were such that they could not be suspended, and immediate imprisonment was ordered.
R v Ikram [2018] EWCA Crim 440
The judgment, available here, was handed down by Treacy LJ on 14.03.18.
The Crown applied for permission to appeal against the trial judge’s ruling of no case to answer in a misconduct of public office case. The Court of Appeal held that under s. 67 of the Criminal Justice Act 2003 the court could not reverse a terminating ruling unless it was satisfied that it was wrong in law, involved an error of law or principle or had not been reasonable for the judge to have made. It was observed that despite the fact the phrase ‘terminating ruling’ was not in the legislation, it was used to distinguish certain appeals from evidentiary rulings. A ruling upholding a submission of no case to answer was a terminating ruling, but a refusal to permit amendment of an indictment did not necessarily have that effect. Whether it did so would depend upon the facts of the case.
The defendant was a city councillor who was charged with misconduct in public office after failing to declare a financial interest in a company with whom the local authority intended to contract. During the trial, the Crown applied to amend the indictment to allege that the defendant had promoted the company while failing to be clear that she was associated with it. The judge rejected this amendment on the basis that ‘promoting’ and ‘ associated with’ were too vague to be put before the jury. At the close of the Crown’s case, the defence submitted that there was no case to answer because there was no evidence that the defendant had a financial interest in the company, or that she had sought contracts for it.
After the judge declined to permit the Crown to amend the indictment, they sought permission to appeal to the Court of Appeal on the basis that it was a terminating ruling. The Court of Appeal observed that under s. 67 of the Criminal Justice Act 2003 the court could not reverse a terminating ruling on appeal unless satisfied that it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to make. It was held that a ruling upholding a submission of no case to answer was a terminating ruling, but that a refusal to amend an indictment did not necessarily have that effect.
By virtue of s. 58 of the Criminal Justice Act 2003, if the Crown decided to nominate another ruling in addition to a no case ruling, it undertook that if it failed to obtain leave to appeal, or abandoned the appeal, an acquittal would follow. Even if a ruling did not bring proceedings to an end, it would therefore have that effect. In a case where an application was made relating to a ruling in addition to a no case ruling, the Court of Appeal would need to examine the relationship between the rulings in deciding how to proceed. If the other ruling related to the admissibility of evidence, it was held that it might be important to determine whether the ruling’s correctness had impacted on the no case to answer submission. If there was no significant impact, the court would probably first consider the no case ruling. If the evidentiary ruling dictated the result of a no case submission, the court would probably consider that ruling first.
R v Pabon [2018] EWCA Crim 420
The judgment, available here, was handed down by Gross LJ on 13.03.18.
The appellant was convicted of conspiracy to defraud. At his trial, an expert gave evidence of behalf of the prosecution. Two co-defendants were also convicted but their convictions were quashed on appeal. At the re-trial of the two co-defendants cross examination on new material concerning one of the prosecution’s experts revealed that he had given evidence beyond his general knowledge of banking. The two co-defendants were acquitted and the appellant argued that the prosecution’s reliance upon the expert made his conviction unsafe. The Court of Appeal agreed that the expert had strayed into areas outside of his expertise, but held that there was no causal link between his failings and the issue of dishonesty, which was the central issue at trial.
The appellant was convicted of conspiracy to defraud for dishonestly manipulating LIBOR. At his trial, the key issue for the jury was dishonesty. The appellant was charged with a number of co-defendants, who were also convicted. Their convictions were quashed, however. At their retrial, the co-defendants were acquitted after it was revealed that an expert relied upon by the prosecution had strayed beyond his area of expertise. The appellant argued that his conviction was rendered unsafe by this evidence.
The Court of Appeal accepted that the expert had not complied with his duties enshrined in Criminal Procedure Rules 2015 Pt 19. He failed not only to comply with his basic duties, but either knew that he had not done so or was at least reckless as to whether he had done so. Despite the fact that the expert had not complied with his duties, the Court of Appeal nevertheless held that the appellant’s conviction was safe. The key issue in the trial was dishonesty and the court concluded that there was no causal link between the expert’s failings and this issue. The court was satisfied that, if the new material had been available at trial, it would not reasonably have affected the jury’s decision to convict.
The Court of Appeal also observed that, since his trial had been held before the Supreme Court delivered its judgment in Ivey v Genting Casinos [2017] UKSC 67, the defendant benefited from a more generous direction on dishonesty than he would have received were he to be tried today.
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