Weekly Digest: 20 November 2017

The appellant, a famous entertainer, was convicted after trial at Southwark Crown Court on 30^th June 2014 on 12 counts of indecent assault, contrary to s. 14 of the Sexual Offences Act 1956. Those convictions related to four different complainants: WR (count 1); GP (count 2); JH (counts 3 to 9); and TL (counts 10 to 12).

Ground (i) – Count 1 (WR) – Fresh evidence

The allegation was one of indecent assault by touching of WR’s vagina over her clothing. This occurred in 1969 when WR was aged 7 or 8 and had attended an event at the Leigh Park Community Centre in Portsmouth. WR placed the incident by reference to television reports of the first moon landings and the applicant’ s song “Two Little Boys” being in the pop charts. She recalled the applicant performing the song on stage and signing autographs. After he signed an autograph for her, the applicant had put his hand between her legs. This happened twice and on the second occasion it was done forcefully and aggressively. She reported it to the police in May 2013, saying she had nothing to gain from this apart from closure. The only corroborative evidence was given by David James, who said after returning from a long tour of duty in Korea the applicant had visited the centre after opening a local shop. The applicant’s defence was one of total denial, he said he had never attended the event.

The Court received evidence from a number of witnesses on a provisional basis. That evidence confirmed that there was never any record of such a visit. The Court also heard from Daphne James, the ex-wife of David James. She said that David James had never been to Korea and had never served abroad. She also said that she would have known if her then husband had got the applicant’s autograph and had never heard of the applicant being in the area. Further, information had come to light about David James which the prosecution did not disclose. He had previous convictions for dishonesty and had been discharged from the RAF on medical grounds.

The evidence of Daphne James and David James’ antecedents was received as being in the interests of justice under s. 23 of the Criminal Appeal Act 1968. David James was a very important witness on Count 1, him being the only person, apart from WR, to confirm a visit by Rolf Harris to the centre at the relevant time. The effect of this was that the Crown’s case was seriously undermined to the extent that the conviction was unsafe. Accordingly, leave was granted on this ground and the appeal allowed.

Ground 2 – Counts 10 to 12 (TL)

The safety of the convictions on these ground was challenged primarily on the basis of lack of disclosure. It was contended that the prosecution should have disclosed medical records of TL which the applicant had received in contemporaneous civil proceedings brought by TL against him for damages. These records indicated that TL suffered from complex mental health problems and psychiatric issues. Thus the prosecution, it was said, had not complied with its disclosure duties under the CPIA and thus the verdicts were rendered unsafe. This was rejected; it was found that the extra material would not have assisted the defence. Importantly, there was nothing in the records to show that TL was a fantasist or that she was likely to make false allegations. Accordingly, leave to appeal on this ground was refused.

Ground 3 – Cross-admissibility

The appellant contended that the quashing of even a single count would suffice to render the remaining convictions unsafe. It was argued that any unsafe conviction had the effect of poisoning the minds of the jury on the remaining matters. Reliance was placed on the recent decision of the Court of Appeal in R v Morris [2016] EWCA Crim 2236. But this was found not to assist since that decision related to a case where cross-admissibility arose between two-complainants, one of whom had given materially misleading evidence. The court was unconvinced by the appellant’s approach. Stepping back and looking at the totality of the evidence in relation to counts 2 to 12, there was nothing to lead the court to doubt the safety of those convictions.

The appellant was convicted at Bradford Crown Court of two counts of indecent assault contrary to s. 15(1) of the Sexual Offences Act 1956. He had been charged with six other counts: five counts of indecent assault and one count of sexual assault contrary to s. 3 of the Sexual Offences Act 2003. The complainant (“G”) came to know the appellant and his family, the appellant being the deputy-headmaster at G’s primary school. G would sometimes visit the appellant’s house and, on occasion, stay over. In 2014, G made a complaint to the police that he had been indecently assaulted by the appellant, saying that the offending had first started when he was about nine years old. At trial, the prosecution case was that the appellant regularly indecently assaulted G by touching him over his clothing, both in the area of his genitals and chest, and, on one occasion, trying to kiss him. The appellant’s defence was one of absolute denial.

This was, as the Court of Appeal commented, a case of one ‘word against word’. There was no independent corroboration for G’s account of events in relation to counts 1 to 7 in the indictment. It was only in relation to count 8 that G had some support from his wife’s account of his demeanour during the evening of the alleged assault and his subsequent complaint to her. The transcript of G’s ABE interview did not give an altogether clear or coherent recital of events. Much of it included allegations by G of more serious sexual abuse of him as a child by another, very prominent, individual in the local community. Indeed, it was suggested at trial that this may have tainted G’s perception about the appellant’s own conduct. The issue on appeal was, in light of the evidence available, whether the jury’s verdicts in relation to the eight counts were so inconsistent as to demand the intervention of an appellate court.

It was agreed that the applicable legal principles placed an onerous burden on the appellant: ‘to satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case would have arrived at the conclusion’ (Durante [1972] 3 All ER 962, per Edmund Davies LJ). This was affirmed in Fanning, Kerner, Osiansikovas and de Jesus [2016] EWCA Crim 550, [2016] Cr.App.R. 19, which further added that where a complainant’s credibility is in issue and that complainant’s evidence is uncorroborated, guilty verdicts are not to be regarded as unsafe just because the jury has also returned not guilty verdicts in relation to other counts based on that complainant’s allegations.

Applying these these principles, the Court rejected the appellant’s submissions as to the inconsistency of jury’s verdicts. That the jury had chosen to acquit on the most recent count, but convict in relation to earlier counts – in relation to which G’s memory would have been worse – was not inconsistent. A jury is not bound to either wholly accept or reject evidence; it is perfectly possible to find a witness credible as to some events and not as to others. Further, the submission that there was no rational basis for the jury’s acquittal on counts 5, 6, and 7 and conviction on counts 2 and 3 was ill-founded. It was the appellant’s case that the evidence of G had drawn no difference in type with regard to the conduct alleged on each count, i.e. there had been no progression or variation in the type of abuse alleged. It followed, therefore, that an acquittal on counts 4, 5, and 6 was inconsistent with a conviction on counts 2 and 3. But what appeared to be surprising was not itself enough to entitle an appellate court to set aside verdicts of a jury on the ground of inconsistency. Accordingly, the appeal was dismissed.

The appellant was convicted of of harassment contrary to s. 2 of the Protection from Harassment Act 1997 (“the 1997 Act”). The harassment consisted principally of a very large number of text messages sent over a period of time to her husband, from whom she was separated. A restraining order was imposed and a fine of £775 was levied. The appellant appealed against her conviction and sentence and the appeal was listed at the Blackfriars Crown Court. The appellant intended to contend before the court, as she had done below, that she was not guilty of the offence of harassment by reason of her insanity at the relevant time. Before evidence was called, the court invited submissions on the question of whether the defence of insanity was available for such an offence. The court ruled in an extempore judgment that, as a matter of law, the defence of insanity was not available for an offence of harassment. Consequently, the appellant made an application for a case to be stated; the question for consideration was:

“Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to section 2(1) of the 1997 Act?”

It was the appellant’s case that the defence should be available as defendant who is insane is not morally culpable for a crime and thus should not be punished. This was a more extensive basis for relieving a defendant of criminal liability than saying that the prosecution has not proved the essentials of the defence because of a disease of the defendant’s mind. The respondent’s submissions were focussed on the specific offence of harassment under s. 2(1). The respondent contended that by creating the offence of harassment in the form it did under s. 1 and 2 of the 1997 Act, and in particular providing the objective standard in s. 1(2) that a defendant ‘ought to know’ if his conduct amounts to harassment if a reasonable person would think it did, Parliament must have intended to exclude the defence of insanity for the s. 2 offence. The respondent further relied on dicta in the case of Colohan [2001] EWCA 1251 in which it was contended that the hypothetical reasonable person referred to in s. 1(2) of the 1997 Act must be endowed with the relevant characteristics of the accused and, in particular, with any recognisable mental disorder to which he is subject.

The Court answered the question in the affirmative. The rationale for the defence of insanity was broader than the respondent contended; it was the principle that criminal punishment should only be imposed upon those who are responsible for their conduct (citing Professor Hart’s Punishment and Responsibility (1968), at p. 15). The defence of inanity does not operate solely to negative the mens rea element of an offence, but rather it also operates where the defendant does not know the nature and quality of his act (limb two of the M’Naghten rules). It is possible for someone to have the requisite mens rea for a criminal offence and not know what they are doing is wrong; e.g. a man who kills his wife because of his deluded belief that he is under threat from Satan to comply with divine orders has the mens rea for murder, but he is not guilty of murder because he does not know what he is doing is unlawful. Support for this position was found in Moore v The Queen [2001] UKPC 4, where the Privy Council referred to the false dichotomy between insanity and intention.

This false dichotomy was one upon which the Recorder ultimately based his reasoning in refusing to admit insanity as a defence in the case of an offence under s. 2 of the 1997 Act. The Recorder had referred to DPP v Harper [1997] 1 WLR 1406, in which McCowan LJ referred to the defence being based on the absence of mens rea; thus it could not be relied upon where proof of a mens rea element is not required. This was wrong in principle and disapproved of by the court. Insanity arises where an individual satisfies the threshold condition of a mental disorder and can cannot tell right from wrong to the extent of not knowing his conduct breaches the law. ‘Such a person does not bear criminal responsibility for that very reason’.

The respondent was charged with two counts of theft. The charges related to failure on the part of the respondent to repay money she had obtained to her employer. At the end of the prosecution case, it was submitted on behalf of the respondent that there was no case to answer on the basis that the prosecution had failed to establish either dishonesty generally, or, more specifically, the lack of intention to repay. The prosecution contended that both elements could be inferred from the surrounding circumstances and, as such, it was open to the court to conclude that when the respondent took the money she had no intention of passing it on, thus permanently depriving her employer of it. There was, therefore, prima facie, a case that the respondent had been dishonest. The magistrates, however, acceded to the submission of no case to answer clearly on the basis that there was no evidence of subjective dishonesty, as required by the test laid down in R v Ghosh [1982] QB 1053. The prosecution then appealed by way of case stated; the question for the court was whether the magistrates were correct to find there was no case to answer.

The court held that the magistrates were wrong in acceding to the submission of no case to answer. The approach of the magistrates’ court was, according to Sir Brian Leveson, materially incorrect. Their approach was clearly based on Ghosh. Ghosh had been disapproved of by Lord Hughes in the recent case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. Although this was strictly obiter, it was unlikely that, after Ivey, Ghosh would be followed; the objective test of dishonesty is the correct one to apply. On the facts of the case, there was a case to answer.

The appellant was charged with two offences in the Russian Federation; namely (i) the illegal acquisition etc of a firearm and ammunition, contrary to article 222 of the Russian Criminal Code, which carries a maximum sentence of 3 years’ imprisonment; and (ii) the organisation, incitement and aiding of premeditated murder, contrary to articles 33 and 105(1) of the Russian Criminal Code, which carries a maximum sentence of 15 years’ imprisonment. On 25^th February 2016, the former Chief Magistrate, Senior District Judge Howard Riddle, decided to send the appellant’s case to the Secretary of State for her decision on whether the appellant should be extradited to the Russian Federation to stand trial. These proceedings were the products of the appellant’s appeal under s. 103 of the Extradition Act 2003 against that determination.

At the heart of this appeal was the appellant’s application to adduce fresh evidence under a number of heads. It was common ground that, in seeking to advice fresh evidence, the burden is on the party seeking to adduce it to show that (i) the evidence did not exist at the time of the extradition hearing, or was not at the disposal of the appellant and which he could not with reasonable dilligence have obtained; or (ii) the evidence, if admitted, might avoid a breach of the ECHR; and, in either case (iii) there would have been a real prospect of the result of the extradition hearing before the magistrate being different had the evidence been before him.

The medical evidence

The appellant sought to adduce further evidence that he suffered from a traumatic brain injury and, as such, extradition would be oppressive under s. 91 of the Extradition Act 2003. The court was unpersuaded by the appellant’s submission that this further evidence – further expert reports – materially changed the picture of the appellant’s mental condition. The evidence only amounted to further psychological test results consistent with traumatic brain injury such that there was no possibility it would have altered the decision below that mental health was not a bar to extradition.

Expert Evidence on Russian Law and Procedure

The appellant sought to rely on further evidence of the expert Professor William Bowring, which offered further insight into the likely treatment of the claimant if he were to be extradited. The appellant sought to rely in particular on the fact that:

1. He would not be entitled to trial by jury, but would be tried by judge alone;
2. The acquittal rate in non-jury cases in Russia is less than 1%; and
3. If they cannot call a key witness to give evidence, it is likely that a Chechen court will allow the Russian prosecuting authorities to read their statements.

This was supplemented by reports from a firm of advocates in Moscow which confirmed, to a large extent, Professor Bowring’s evidence. Hickinbottom LJ was greatly troubled by this evidence, particularly 1 and 2 above. The position had materially changed since the first hearing since it was common ground that now the trial would be by judge alone and with the acquittal rate was nearly nil.  Thus the evidence of Professor Bowring and that of the advocates in Moscow was admitted on the basis that there was no surety this evidence would not have affected the Senior District Judge’s decision to refer the case to the Secretary of State.

Secondary Source Material

In addition, the appellant sought to adduce secondary source material, all of which went to painting a bleak picture of the treatment he might receive in Chechnya if extradited. This evidence was not admitted, however, since it was found not to have changed the position as it was before the District Judge.

Witness Evidence

The appellant also sought to adduce further evidence of a witness who was intricately related to both counts with which the appellant was charged. Her evidence was disturbing in a number of respects, not least of all because it suggested that she had been tortured into implicating the appellant in the crimes with which he was charged. The court accepted that this evidence was not available at the time the extradition application was heard by the district judge. At that time, the witness was maintaining a low profile since she did not want the Chechen authorities to know that she had accused the police of torture. The court was further persuaded that this evidence might well have altered the district judge’s reasoning and was accordingly admitted.

It was contended along with the application to adduce fresh evidence that an appeal against extradition be allowed. The court did not accede to that submission but rather, recognising the potential impact of the fresh evidence on an argument predicated on art. 3 and 6 ECHR grounds, remitted the matter to the magistrates’ court under s. 104(1)(b) of the Extradition Act 2003 for consideration. Two questions were framed for remittance: 1. Is the appellant’s extradition compatible with his rights under article 3 ECHR? 2. Is the appellant’s extradition compatible with his rights under article 6 ECHR?

The claimant was convicted on 5^th January 2006 of a number of serious sexual offences committed in the early 1990’s, including rape, incest, and assault occasioning actual bodily harm. He was sentenced to life imprisonment with a four year tariff, which, taking into account the time he had spent on remand, expired on the 11^th October 2009. The claimant, 72 years of age,  suffered from bowel cancer and had a number of chronic physical disabilities, including nerve damage.

The claimant was the subject of a number of Parole Board reviews between 2009 and 2016 until his case was eventually considered by a panel at an oral hearing, which concluded, by a decision dated 22^nd August 2016, that they were satisfied the claimant’s risk would be manageable in the community, if an appropriate release and risk management plan was in place. The claimant was not released until 2017 because of the difficulties involved in finding appropriate accommodation. When appropriate accommodation was found in a care home, the Parole Board panel chair ordered his release and made an up to date assessment of the risk posed by the claimant. The observations of the chair included the fact that claimant might display aggression and physical violence to members of staff at the care home.

During his time at the care home the claimant’s behaviour towards staff and fellow residents was violent such that the staff and residents became fearful and concerned for their safety.  Accordingly, the decision was taken to recall him to HMP Wandsworth on the 9^th August 2017. The decision was predicated on the basis of the link between the violent nature of the claimant’s index offenders and the aggressive and violent behaviour he now demonstrated. Further, there was concern that the claimant posed an increased risk to the staff and residents of the care home. It was this decision that the claimant sought to challenge by means of judicial review

Dinah Rose QC allowed the claim for five reasons. First there was no real evidence of any deterioration in the claimant’s behaviour, such that the risks that he posed in August 2017 was any greater than those identified by the Parole Board Panel chair when he was released in May 2017. Thus, the defendant was not accurately applying their own policy – i.e. the increased risk of harm test.  Second, a significant concern at the date of the claimant’s recall was alleged incident involving the touching of a 90 year old’s leg. This was found to be innocent and, as such, should not have formed part of the decision to recall the claimant. Third, much of the concern appeared to have arisen because of the difficulty encountered by the staff at the care home in managing the claimant’s challenging behaviour. But it did not follow from this that the claimant should be recalled to prison. The care home and the Parole Board were aware of the potential risk the claimant posed in terms of potential aggression toward staff and alternative accommodation could have been found for him instead of recalling him to prison. Fourth, no consideration had been given to the circumstances under which the claimant’s behaviour worsened; he had just been informed that his cancer had returned and so must have been under considerable stress. Fifth, the attempts to identify a causal link between the claimant’s index offences and his behaviour in the care home were misconceived.

From 1960 to 1985 Jeremy Hutchinson, who died age 102, was hailed as the finest silk in practice at the criminal Bar. He defended, among others, Lady Chatterley, Fanny Hill, Christine Keeler, the spy George Blake, Brian Roberts, the editor of the Daily Telegraph, and later the journalist Duncan Campbell in two cases that led to the reform of the Official Secrets Act. Lord Hutchinson was even inspiration for his friend, John Mortimer, who immortalised Hutchinson as Rumpole.

The full obituary can be read here.

The UK government is lobbying to block the ICC from activating the war crime of aggression in a move that could protect politicians from the risk of future prosecution. There has been growing international pressure to hand the ICC greater powers to pursue those deemed responsible for starting wars.

The full piece can be read here.

The SFO charged two businessmen with corruption after a criminal investigation into alleged bribery in the energy industry. The two were charged with conspiracy to make corrupt payments to secure contracts in Iraq. These are the first charges to result form an investigation into alleged corruption by a Monaco-based firm, Unaoil.

The full piece can be read here.

Rape Crisis Scotland has called for a radical overhaul of the handling of rape cases after many women said they found prosecutions traumatic and degrading. A report by the Inspectorate of Prosecutions identified a series of weaknesses in the handling and prosecution of sexual offences in Scotland. This was particularly alarming given that sexual offences make up 75% of the High Court workload in Scotland.

The full piece can be read here.

Fresh delays have hit the government’s programme for the electronic tagging of offenders, which mean the satellite tracking tags will not come into use until early 2019. The scheme was intended to save up to £30m but instead it has cost the MoJ a further £60m on top its original £130m budget.

The full piece can be read here.