Weekly Digest: 22 May 2018

The appellant was convicted of wilfully obstructing or seeking to frustrate a search or examination contrary to paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000. The basis of his conviction was a refusal to provide the PIN and password for his mobile phone and laptop. The appellant refused to provide the information to the officers conducting the search on the ground that he was seeking to protect his own privacy. After he was arrested, however, the appellant asserted that he was protecting information confidential to others relating to allegations of torture in the United States. At no stage during the relevant period did he mention that confidential information or any material potentially journalistic in nature. He was a director of CAGE, an organisation specialising in supporting and advising individuals in respect of terrorism laws, but failed to explain his position adequately to officers.

The appellant appealed by way of case stated on three grounds. The first was whether the prosecution is required to adduce evidence relevant to the legality of the decision to stop and examine a person under Schedule 7; the second was whether the Code of Practice for Examining Officers and Review Officers under Schedule 7 contains sufficient safeguards to preserve the right to confidentiality of material held by a person stopped in the exercise of powers under Schedule 7; and the third was whether the offence could be committed where the defendant failed to permit access to confidential material and no procedure was yet in place to allow independent inspection of the material.

The first ground failed. There was no basis on which the legality of the stop or the request for the PIN and password was called into question. Generally, there was no special need for the prosecution to call evidence to establish the legality of the stop. There had been no submission of abuse of process before the Chief Magistrate and there was no evidence from the defence which raised a question of the illegality of the stop or even raised a concern which called for an answer.

In respect of grounds two and three, which were treated together, the appellant failed. Irwin LJ noted that it was not for that Court to opine on the adequacy of policy or drafting of the Code of Practice on a criminal appeal. He found the suggestion of a closed hearing in respect in the manner urged by the appellant misconceived. The House of Lords in R v. H [2004] 2 AC 134, [2004] UKHL 3 contemplated representation by special counsel only as an exceptional measure. Moreover, the court has no inherent jurisdiction to introduce a closed material procedure; only Parliament can do that (Al Rawi and Others v. The Security Service and Others [2011] UKSC 34, [2012] 1 AC 5313).

Further, the appellant did not raise any question of material containing confidential information gathered in the course of business or profession until after the obstruction was complete. There was never any question of the material in question being journalistic; the assertion of confidentiality by the appellant was never more than that. In the judgment of the Irwin LJ, there is no reason in either ground two or three which affected the validity of the appellant’s conviction.

This was an appeal against the judgment of Deputy Senior District Judge Ikram (“DSDJ”) to extradite the appellant to Lithuania. The alleged criminal conduct was that the between July 2010 and June 2011, the appellant, then a director and shareholder of a limited company, committed a number of offences in connection with that company, including stealing and withdrawing money and fraudulently managing accounts.

The appeal was brought on five grounds, however the focus of the appellant’s submissions, and indeed the ground on which the appeal succeeded in part, was whether the DSDJ was wrong to find that there was no real risk that remand prison conditions in Lithuania generally would infringe the rights of the appellant as guaranteed by article 3 of the ECHR. The authorities showed that there was an international consensus that in some pre-trial detention prisons, namely Lukiskes, where the appellant was likely to be held on remand, there is a real risk to prisoners of impermissible treatment contrary to article 3. A particular issue was overcrowding, which was compounded by the need to segregate prisoners. The DSDJ was, accordingly wrong to conclude that there was no such risk of impermissible treatment.

The respondent submitted that the Lithuanian authority should be allowed the opportunity to provide the appropriate assurance that the appellant would not be subject to the same risk. Applying the correct approach to assurances, as set out by the CJEU in Criminal proceedings against Aranyosi and Caldarau (Case Nos C-404/15 and C-659/15PPU) [2016] QB 921, it was appropriate, in the Court’s view, to give the Lithuanian authorities an opportunity to consider and, if it considers it appropriate, provide an assurance sufficient to dispel the risk of treatment contrary to article 3. The appeal was accordingly stayed for a period of 42 days.

The offender was convicted on 4 May 2018 of the murder of Lee Holt. On the evening of 25 October 2017, the offender was at home with his wife and son when another family, the Phelan family, came for a confrontation in the context of an ongoing dispute between both family’s sons. The Phelan family were banging on doors and windows and shouting abuse. The police were called by the offender’s son. The offender then proceeded to unlock one of his four gun cabinets and selected one of his licensed firearms. He sought out the appropriate ammunition and loaded the gun. He then proceeded to open the door and shot Ms Phelan’s partner, Lee Holt, who was between one and three metres away. The offender then proceeded to try and blame the shooting on his son, who initially took responsibility before telling the truth.

The judge imposed the mandatory life sentence. He found that the seriousness of the offending was particularly high, not least of all because para. 5(2) of Schedule 21 to the Criminal Justice Act 2003 identified that a case of murder involving a firearm would usually fall within this category. In fact, that someone with over forty years of firearms experience consciously chose to locate, load, and fire a shotgun pointed towards the same conclusion. The starting point of 30 years was, in the judge’s opinion, appropriate.

Aggravating factors included the conscious nature of his actions and the fact that he had pressurised his son into taking responsibility for the killing and the commission of the crime. In terms of mitigating factors, there was not a significant degree of planning of premeditation and that there was significant trouble at his house that evening. Nevertheless, the judge would have expected the offender to lock the doors and await the police. The offender’s age and lack of any recent or relevant conviction were also mitigating factors.

The minimum term was accordingly set at 26 years, less the time spent on remand in custody. The semi-automatic Beretta shotgun was the subject of a forfeiture order under s. 143(1) of the Powers of Criminal Courts (Sentencing) Act 2000.

The offender was convicted of murdering Tyler Denton and of attempting to murder her sisters, Cody and Shannen Denton, and their father, Paul Denton. The judge accepted that this was motivated by his interest in fantasy, and in particular knives and swords. The offender stabbed Tyler Denton eight times with a knife and launched attacks on all the other victims over the course of what was a spree of attacks.

A life sentence was imposed in respect of the murder and, pursuant to paragraph 5A of Schedule 21 to the Criminal Justice Act 2003 (“the 2003 Act”), i.e. that the offender took a weapon to the scene of a murder intending to commit a murder with that weapon, the starting point was 25 years. There were no statutory aggravating features in this case, although the judge was obliged to take into account the convictions for attempted murder in reaching a conclusion on minimum term in accordance with the principle of totality. The appropriate term, in the judge’s opinion, was 20 years’ custody in respect of those three convictions.

Mitigating factors including the fact that offender suffered from a mental disability which lowers his degree of culpability (para 11(c) of Schedule 21 to the 2003 Act). Further, the offender was of good character and was still a man – at only 21 years of age – of some immaturity such that para 11(g) of the 2003 Act applied. Finally, though not a statutory mitigating factor, the judge took into account that the offender had shown obvious remorse from the outset.

In respect of the murder count, the appropriate starting point was, in light of the mitigating factors, accordingly modified to 22 years. This was then increased to reflect the three attempted murder convictions to 30 years’ imprisonment. Concurrent life sentences were imposed in respect of each count of attempted murder with a (concurrent) 10 year minimum term.

After a three-day debate, an attempt to legalise assisted dying has been defeated in the Guernsey Parliament. If the Bill had been passed, Guernsey would have been the first place in the British Isles to allow euthanasia for people with terminal illnesses.

The full piece can be read here.

The chief inspector of prisons in England and Wales has expressed fears that inmates at HMP Nottingham are committing suicide because they cannot face conditions in the “dangerous, disrespectful, drug-ridden jail”. There have been eight apparent suicides between inspections in February 2016 and January 2018.

The full piece can be read here.

A justice select committee has been told by leading digital forensic experts that police officers are trampling over vital forensic evidence, are under-trained, and often do not know what they are looking for.

The full piece can be read here.