This week’s edition considers three judgments from the Court of Appeal (Criminal Division). In Thomas the Court of Appeal considers an appeal against conviction principally based on the judge’s decision to reserve his decision on the admissibility of the appellant’s bad character evidence until the defendant chose to give evidence. In McNulty the Court of Appeal gave guidance as to the sentencing of offences of ill-treatment or neglect by a careworker. In KK the Court of Appeal considered a challenge to a judge’s decision not to discharge the remainder of the jury where one juror had conducted internet research into one of the defendant’s previous convictions.
R v Thomas [2020] EWCA Crim 4
The judgment, available here, was handed down by Green LJ on 16/01/20.
The Court of Appeal refused the appellant’s appeal against his conviction, holding that his prosecution had not been an abuse of process where the complainant had previously admitted to making a false allegation, and that the judge’s decision to defer making a decision on whether or not to admit bad character evidence until the appellant had made a decision as to whether or not to give evidence had not been improper or caused unfairness by forcing the appellant not to give evidence.
The accusation against the appellant was that after the complainant had stolen the appellant’s bike and sold it for drugs the appellant had forced the complainant off a street into a van with his two co-accused, and beat the complainant with a lump hammer and a screwdriver demanding the whereabouts of the bike. They had then taken the complainant to the appellant’s home, whereupon the co-accused had left and others arrived to smoke heroin and consume alcohol. During this period the appellant was accused of forcing the complainant to perform oral sex upon him. The appellant was convicted after trial of kidnap, assault occasioning actual bodily harm and rape, and appealed against his conviction.
In 2012 the complainant had made an allegation of rape against another person which she had later retracted and in relation to which she had provided a witness statement admitting that she had made a false allegation ([3]). At trial she in effect retracted that retraction under cross-examination and was cross-examined on other allegations she had made that were alleged to be false ([11]). The prosecution had not acted improperly in re-examination of the complainant in eliciting from her that her earlier complaints were in fact true, notwithstanding that they had been withdrawn or retracted ([30]). Ultimately the veracity of the allegations and the inconsistencies in evidence were matters which were before the jury for them to form a conclusion about. Whatever view the jury took of the complainant’s prior conduct, upon this occasion they believed her and disbelieved the appellant ([31]). Moreover, the defence had not raised any objections with the judge to the effect that the prosecution was misrepresenting the evidence ([32]). The prosecution was not an abuse of process ([33]).
The appellant had many previous convictions spanning a lengthy period including for kidnapping and assault ([14]). The judge had been minded to admit this evidence under section 101(1)(g) of the Criminal Justice Act 2003 as rebuttal evidence because of the appellant’s attack upon the credibility of the complainant but following submissions from the defence had agreed that he would not do so if the appellant did not give evidence ([14] to [20]). The appellant did not give evidence and his convictions were not placed before the jury ([21]). On the basis of the prior cross-examination of the complaint about lies, retractions and inconsistencies gateway (g) was plainly engaged and the judge could quite reasonably have directed that the previous convictions be adduced at the end of the prosecution case ([24]). Further, the judge had not held that if the appellant gave evidence this would without more, trigger the admissibility of the previous convictions but that he would then have had to decide whether, in the light of the evidence given, it amounted to an attack upon the complainant’s credibility such as to engage gateway (g) ([25]). Insofar as the appellant was unfairly placed upon the horns of a dilemma, this would merely be the consequence of the relevant gateway having been passed through by virtue of his attack upon the complainant’s credibility. If this affected the decision whether to give evidence on the part of the appellant that was an inevitable consequence of the prior decision of the defence to launch that attack. There was nothing unfair in this ([26]). Moreover, the judge would have been entitled to have admitted the kidnap conviction as given the nature of the attack upon the complainant designed to show that she was a liar about the offending, which included kidnap, it was fair that the jury, properly directed, should see the whole of the appellant’s previous convictions and to take out the most serious (the kidnap conviction) would have been misleading to the jury ([28]).
R v McNulty [2019] EWCA Crim 2081
The judgment, available here, was handed down by Holroyde LJ on 20/11/19
The Court of Appeal allowed the appellant’s appeal against sentence for two offences of ill-treatment or neglect by a care worker, giving guidance as to the seriousness of such offending.
The appellant (age 36/previous good character/mild to moderate depression from late wife’s long illness and resulting debt for funeral) had been employed as a support worker in a hospital which cared for adults with Down’s Syndrome, autism and other learning difficulties. He was found to have ill-treated two of his patients. He had assaulted M (in his thirties with Down’s Syndrome) on about 19 occasions over about a month including full punches to the head, slaps and kicking. He had abused R (mid forties and suffers from autism and learning difficulties) on two occasions: first by striking a back-hand blow to his face, followed by lesser taps on the face; and later by deliberately pressing a key into R’s thigh as the appellant placed his weight through the hand holding the key in order to rise from a seated position. The appellant pleaded guilty to two offences of ill-treatment or neglect by a care worker and was sentenced to a total of two years eight months’ imprisonment.
Offences of this type are inherently serious. They involve a breach of the trust which should exist between the patient and the carer, and of the wider trust which should exist between those who entrust their loved ones to care and those who provide it ([15]). Offences of this type also involve harm being caused to a vulnerable victim. In the present case, the seriousness of the offending was increased by the number of separate incidents of ill-treatment and by the fact that the ill-treatment took the form of physical assaults, some of which involved the application of significant force against victims who were unable to articulate what was happening to them ([16]). They had been deliberate acts which caused not only pain but great distress and in some cases the CCTV evidence showed the appellant checking the coast was clear before committing the assaults ([16]). There was undoubtedly significant personal mitigation: the appellant had been a diligent and caring worker for 14 years; he has a history of mental health issues and the long illness and death of his wife have clearly taken a heavy toll; he has lost his employment and faces a difficult future; he is remorseful and pleaded guilty at the earliest opportunity. It must be borne in mind that the maximum sentence of five years’ imprisonment for each of these offences has to cater for all offending of this type, including offences which are yet more serious examples of their kind and those committed by offenders with relevant previous convictions ([17]). The appropriate total sentence after trial would have been three years’ imprisonment. Giving appropriate credit for the pleas a sentence of two years’ imprisonment would be substituted ([18]).
R v KK [2019] EWCA Crim 1634
The judgment, available here, was handed down by Davis LJ on 04/10/19.
The Court of Appeal held that where a juror had conducted internet research into one defendant’s previous convictions and the judge had discharged the jury in respect of that defendant the decision to proceed in relation to the other defendants did not render their conviction unsafe.
The eight appellants had been charged with historic offences, almost all of which involved alleged sexual abuse of young females. On the 78th day of the trial and when the jury had been in retirement for some days, a juror reported that another juror had, on the previous day, informed the remaining jurors that he had discovered by internet research that one of the eleven defendants (NK) had a previous conviction resulting in a lengthy custodial sentence. That previous conviction had deliberately not been the subject of any evidence adduced at the trial: and the research by that juror was wholly contrary to firm and specific instructions which had been given to the jury at the outset of the trial prohibiting any independent research, on the internet or otherwise, on the part of any juror. The judge discharged the juror who had undertaken the research from the jury and discharged the jury from reaching any verdicts against NK but allowed the remaining 11 to proceed against the others.
In determining an issue of apparent bias, the test is whether the fair-minded and independent observer, having considered the relevant facts, would conclude that there was a real possibility, or risk, that the tribunal in question was biased ([71]). The seven sequential steps set out at paragraph 26M.7 of the Criminal Practice Directions should (unless circumstances wholly preclude) normally be followed ([77]). However, whilst the Practice Direction specifies the seven steps which are to be followed when a jury irregularity is revealed, the Practice Direction is relatively open-ended as to the way in which the judge goes through those steps ([80]). The very nature of the irregularity in each case, and the stage at which it occurs, will necessarily impact on the judge’s consideration of what to do by reference to each step and on his decision at each step and on his ultimate conclusion ([81]).
In circumstances such as these, it is the obligation of the judge to establish the “basic facts” of the jury irregularity which may involve direct and blunt questioning. Any concerns as to the risk of self-incrimination are necessarily subordinated to the need to establish the basic facts ([93]). Great caution is, however, necessary in order not to give rise to an enquiry into the jury’s deliberations. There is no generalised proposition that in such circumstances a judge’s enquiries into a jury irregularity should be the maximum possible. To the contrary, if anything the inclination ordinarily in such circumstances should be to keep such enquiries to the minimum necessary ([94]). The foreman and others had immediately closed the juror down when he sought illegitimately in the jury room to refer to his researches on NK’s antecedent history; and they had in terms told him that no regard could be had to it ([96]). Although they had not told the judge immediately that was not a wilful flouting of the judge’s directions ([96]). The judge was not required to question each juror individually and was entitled to deal with them collectively ([99]). The judge’s decision not to discharge the jury with regard to the other defendants was a proper one and was justified. It had not, viewed objectively, given rise to unfairness or a perception of unfairness ([102]).
Home Office proposes offence of possessing terrorist propaganda
In response to the Prevention of Future Deaths Report by HHJ Mark Lucraft QC the Home Office have announced they are considering the creation of a strict liability offence of possessing terrorist propaganda.
The full piece can be read here.
Cameras to broadcast from the Crown Court for first time
The Government has introduced into Parliament the Crown Court (Recording and Broadcasting) Order 2020 which if approved will allow cameras to broadcast the sentencing remarks of High Court judges, resident judges in the Crown Court and Senior Circuit Judges in the Central Criminal Court.
The full piece can be read here.
Sentencing Council report into racial and gender disparity in sentencing
The Sentencing Council have published a report into disparity in sentence on the basis of an offender’s sex and ethnicity for adults sentenced for the offences of supply, possession with intent to supply and conspiracy to supply a controlled drug of classes A or B, at the Crown Court.
The full report can be read here.
