This week’s Digest discusses two recent Court of Appeal judgments. The first relates to the admissibility of evidence of a defendant’s bad character under the provisions of s. 101 of the Criminal Justice Act 2003, as well as the correct starting point for sentencing for joint enterprise offences involving a firearm. The second concerns a number of appeals against sentence imposed for offences contrary to s. 12 of the Terrorism Act 2000 on the basis that they were manifestly excessive.
R v. Lovell [2018] EWCA Crim 19
The judgment, available here, was handed down by Treacy LJ on 18.01.18.
This was an appeal against conviction for murder and a renewed application for leave to appeal against a sentence of 25 years’ imprisonment; the appeal against conviction was dismissed and leave to appeal against sentence refused. In relation to the conviction, the appellant contended that the trial judge had been wrong to admit evidence of a conversation that, the Crown contended, was important explanatory evidence under s. 101(1)(c) of the Criminal Justice Act 2003, or formed part of the facts of the alleged offence within s. 98(a) of the 2003 Act. The court held that the trial judge was right to admit the evidence and that the judge’s directions in respect of that evidence had been sufficient. Regarding sentence, the appellant contended that the term imposed was manifestly excessive, as the judge had chosen the incorrect starting point. This was rejected and leave was refused on the basis that the language of paragraph 5 to Schedule 21 to the 2003 Act was sufficient to cover an offender involved in a joint enterprise.
This was the appellant’s appeal against conviction and a renewed application for leave to appeal against sentence. The appellant was convicted of murder in the Crown Court at Teesside on 13 December 2016 and sentenced to life imprisonment with a minimum term of 25 years imposed. In brief, the appellant and two co-accused had chased the deceased home through a park near to his home before Stubbs shot him in the back. The appellant believed that the deceased had been present at his house a few nights previously and broken windows on his house. The Crown’s case was brought on the basis that the trio were seeking revenge.
In relation to the appeal against conviction, the appellant made two substantive submissions; namely, that the judge had erred in:
- admitting the evidence of a Mr Stewart; and
- failing to give an appropriate direction on that evidence.
In respect of the first ground, the Crown had relied on evidence at trial of comment alleged to have been made by the appellant to a witness, Mr Stewart, a few days before the killing, in which the appellant had admitted to be with a gun looking for the deceased. The Crown had sought to adduce it on the basis that Mr Stewart’s evidence was important explanatory evidence (s. 101(1)(c) Criminal Justice Act 2003 (“the 2003 Act”)), given its link to evidence given by the deceased’s mother. Alternatively, it was argued, it should have been admitted under s. 98(a) of the 2003 Act as evidence which had to do with the alleged facts of the offence. The trial judge identified multiple grounds of admissibility, including s. 101(1)(c) of the 2003 Act. In addition, it was evidence of motive and/or evidence of a propensity to be involved with guns. In particular, it was relevant to the issue of whether or not the appellant was part of a joint enterprise.
The appellant contended that the judge was wrong to admit Mr Stewart’s evidence because, on a true analysis of the deceased’s mother’s evidence, it could not in any way be explanatory. This argument was dismissed on the basis that Mr Stewart’s evidence placed the appellant with his co-accused with a weapon looking for the deceased. Further, it was admissible as evidence of propensity, since it was implicit in the appellant’s defence that he was not the sort of person to be involved with guns. Thus, in the court’s view, it was admissible both under s. 101(1)(c) and (d) of the 2003 Act and, in addition, due to the close link between the appellant’s conversation with Mr Stewart and the murder, under s. 98(a), as having to do with the alleged facts of the offence.
Regarding the second ground, the appellant’s case was that the judge failed to give the jury appropriate assistance with ‘propensity’. Although the court conceded that the judge could have developed the issue of propensity with greater clarity, he had made it sufficiently clear to the jury that, if they accepted the evidence, it was relevant to the issue of whether the appellant would involve himself by way of threat or attack with a gun upon the deceased. Thus, the appeal against conviction was dismissed.
As for the renewed application for leave to appeal against sentence, permission was refused. The appellant had contended that his sentence was manifestly excessive in that the judge had chosen a starting point of 30 years. The court rejected this submission, since the language of para. 5 of Schedule 21 to the 2003 Act was sufficient to cover an offender involved in joint enterprise. Further, that the judge had correctly identified that the fact this was a murder involving a firearm, in which the appellant played a full and willing part, justified such a starting point.
R v. Alamgir & Ors [2018] EWCA Crim 21
The judgment, available here, was handed down by Treacy LJ on 18.01.18.
This was an appeal against sentence heard with three applications for leave to appeal against sentence on the basis that the sentences imposed for offences contrary to s. 12 of the Terrorism Act 2000 were manifestly excessive. The offending conduct related to speeches given by the appellant and applicants in support of ISIS. The appeal was dismissed and leave in respect of all the applications refused; the judge had not erred either substantively or procedurally in relation to the sentencing of the defendants.
This was Choudry’s appeal against a sentence of 4 years’ imprisonment for an offence of encouraging support for a proscribed organisation contrary to s. 12 of the Terrorism Act 2000 (“the 2000 Act”). Alamgir, Khan, and Bashir were similarly convicted of offences contrary to s. 12 of the 2000 Act and this was the hearing of their renewed application to appeal against sentence. Between March 2014 and 2015 an undercover police officer infiltrated a group based in Luton believed to have violent jihadi views. The offences on the indictment related to speeches given by each of the co-accused at various meetings in support of ISIS.
Choudry
The count against Choudry related to a speech given at a meeting during the Ramadan period in which he referred to the declaration of the Caliphate as a blessing and while denouncing the behaviour of the Kufr as being worse than animals. This speech was considered at trial against the background of evidence including recordings of similar extremist speeches.
Choudry submitted that the length of the sentence imposed by the judge was manifestly excessive as it was disproportionate to the gravity of the crime committed; the judge had further failed to take account of appropriate mitigating factors when sentencing. This was rejected by the court. The judge had been entitled to find, as he did, that Choudry’s views were as hard-line as his co-accused. Further, while Choudry’s absence of conviction, youth, and lack of a leadership role were indeed mitigating factors, the appellate court was unwilling to interfere where the trial judge was better placed to assess individual personalities and their culpability. While other judges might have passed a lesser sentence, the sentence imposed was not manifestly excessive. The appeal was dismissed.
Alamgir
Alamgir was the leader of the Luton branch. On a number of dates throughout the Ramadan period, Alamgir had given speeches in support of ISIS and announced funeral prayers glorifying the conduct of a former member of the Luton group, who had recently been killed by a drone strike in Syria while fighting for ISIS. Alamgir was sentenced to 6 years’ imprisonment.
Similarly, Alamgir submitted the length of his sentence was manifestly excessive. Insufficient regard had been paid to Alamgir’s genuine beliefs which pre-dated the creation of ISIS. Moreover, the limited audience and the nature of the audience had been insufficiently reflected in sentence. These submissions did not persuade the court that a sentence of 6 years was manifestly excessive given his influence over others and his position of leadership. Leave was refused.
Khan
Khan was convicted of encouraging support and arranging a meeting to support a proscribed organisation. He received 5 years’ imprisonment for the s. 12 offence to run concurrently with an 18 month sentence for arranging the meeting. Khan urged that, in reaching this conclusion, the judge had failed to adequately reflect a balance of aggravating and mitigating factors, taking account of matters beyond the indictment of the offence. This was rejected by the court: the judge had been careful and considered in his approach, confining himself to the offences in respect of which each had been convicted.
Bashir
Bashir had been convicted for his involvement in the same activity and was sentenced to 4½ years’ imprisonment. Bashir contended that this sentence did not fall sufficiently far short of those imposed on Alamgir and Khan given his lack of a leadership role. In the view of the court, Bashir’s sentence was sufficiently short in comparison to the others imposed. In fact, the judge, when sentencing Bashir, had indicated he had sought to balance the factors in his case against the other co-accused.
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