Weekly Digest: 23 September 2019

A young offender applied for permission to appeal against a minimum term of 19 years’ detention imposed following his conviction for the murder and rape of a 14-year-old girl. He also challenged a decision to lift a reporting restriction imposed under the Youth Justice and Criminal Evidence Act 1999 s.45(3). The offender, aged 16 at the time of the offending, was sentenced to be detained at Her Majesty’s pleasure. The victim had been subjected to a sustained and ferocious attack. The offender was diagnosed as suffering from paranoid schizophrenia, but it was unclear whether there was a link between his mental disorder and the offending. The judge identified the statutory starting point for the minimum term under the Criminal Justice Act 2003 Sch.21 para.7 as 12 years, given the offender’s age, before taking account of aggravating and mitigating features. Post-conviction, the judge made an excepting direction which discharged the s.45(3) order. However, the direction was stayed and an interim anonymity order imposed pending the instant hearing.

The applications were refused.

The offender argued that the judge had paid insufficient regard to Parliament’s intention in setting the statutory starting point for those aged under 18 at 12 years’ detention. However, consideration of aggravating and mitigating factors did not lead to a rigid arithmetical increase or decrease in a minimum term, but required a subtle evaluation by the sentencing judge. In the instant case, the overall increase from 12 to 19 years was not arguably wrong. Although a 19-year minimum term was long in the context of a 16-year-old offender, it was not manifestly excessive. Permission to appeal was refused.

The judge had to balance the competing claims of privacy, the child’s welfare and open justice. He set out the relevant statutory provisions, referred to authority on the importance of open justice and identified the competing considerations. There was no basis for the assertion that he had failed to have regard to the psychiatric reports and a pre-sentence report. He evaluated the psychiatric evidence, its impact on culpability and the risk of harm to the offender. His approach to the evidence could not be faulted. There was a further submission that the judge had wrongly proceeded on the assumption that anonymity would necessarily fall away when the offender reached 18. A s.45 reporting restriction did cease to have effect when the subject of the restriction became 18. Realistically, the only application that could have been made in anticipation of the offender’s majority was an injunction against all the world grounded in a compelling need to protect a notorious criminal against vigilante action. However, such orders were exceptional. No such application had been intimated and there was no basis for supposing that one would succeed. The judge was entitled to take the view that continued anonymity was not warranted.

Regardless of whether the challenge to the decision to make an excepting direction was considered as an appeal to the Court of Appeal Criminal Division or as a judicial review claim in the Divisional Court, the outcome would be the same. Both challenges would fail. A decision which had the effect of discharging an anonymity order under s.45 could be challenged in judicial review proceedings, at least when it was made post-conviction. The Criminal Division’s concurrent jurisdiction was less clear. Jurisdiction was not conferred by the Criminal Appeal Act 1968. There was no power to entertain an appeal against a reporting restriction order imposed in the Crown Court under the Children and Young Persons Act 1933 s.39 until the enactment of the Criminal Justice Act 1988 s.159(1). However, that did not mean that a person aggrieved by an order discharging or revoking a restriction order could appeal. Section 45 of the 1999 Act conferred powers on an “appellate court”, including powers to revoke a s.45(3) direction and an excepting direction. The question was whether, having refused leave to appeal, the instant court was “dealing with an appeal”. It might be that that phrase should be understood as encompassing applications for leave to appeal. In the circumstances, having refused permission to appeal, the court would be reconstituted as a Divisional Court and would deal with the issue by way of judicial review. The stay would be lifted and the claim dismissed, discharging the anonymity order.

The form of the order originally made by the judge prohibited reports in newspapers but not in any other form of publication. The order was probably based on an old template, reflecting the regime under s.39 of the 1933 Act. If so, such templates should be updated. Newspapers were only one medium for publication and the protection had undoubtedly been intended to be wider. There was no suggestion that other publishers had taken advantage of the narrowness of the order, but those concerned with applications for such directions should be alert to ensure that they were framed in appropriate terms. Also, it appeared that no formal order had been drawn up to reflect the decision of the trial judge to make an excepting direction.

On 2 November 2018, in the Crown Court at Manchester, the Applicant pleaded guilty to a number of offences on two indictments. On 4 January 2019, he changed his plea to guilty of the offences on a further indictment. On 8 February 2019, he was sentenced. The total sentence was one of 89 months’ (seven years and five months) detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The co-accused was acquitted of all counts.

The grounds of appeal were twofold, namely: (i) the sentence was manifestly excessive because the judge failed to attach any weight to the applicant’s personal mitigation; and (ii) the judge failed to apply the totality principle generally and specifically by ordering the sentences for the two imitation firearm offences to run consecutively.

In refusing leave to appeal, the single judge stated that stabbing to the buttocks and thighs is a frequent means of punishment inflicted in a premeditated way intended to cause pain and injury without killing the victim. Because of the location of important blood vessels, it does sometimes kill. These offences were serious, premeditated knife crimes in the public street. The Applicant also used a ‘BB’ gas-fired weapon twice to cause fear and injury in the context of criminal activity. When arrested, he was armed with a large kitchen knife. The Applicant had been involved in gangs from the age of 15, and by the time of these offences he was 16 years old. As the author of the pre-sentence report indicated, some of the Applicant’s explanations for his conduct are not true. All of this justified the judge in finding dangerousness, and her decision not to impose an extended determinate sentence of detention was a proper one. The discounts for plea and age were not criticised in the grounds of appeal, correctly. The single judge decided that it was not arguable that the overall sentence was manifestly excessive or wrong in principle. The Court agreed with the reasons given by the single judge and refused the renewed application.

A university student has become the first person in the UK to be convicted and imprisoned for possessing unlicensed firearms made with a 3D printer. He was jailed for a total of three years at Southwark Crown Court after previously pleading guilty to two counts of manufacturing a prohibited firearm and two counts of possessing a prohibited firearm.

The full piece can be read here.

Under plans confirmed by ministers on 17 September 2019, the Unduly Lenient Sentence scheme will be extended to 14 new offences. Criminals convicted of stalking, harassment, controlling and coercive behaviour, child sexual abuse and other sex offences could see their sentences increased if victims or the public think their punishment is too lenient.

The full piece can be read here.

 Updated Crown Prosecution Service (CPS) guidance discusses the use of special measures which can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses.

The full piece can be read here.

Revised Crown Prosecution Service (CPS) guidance discusses the definitions of forced marriage and so-called honour based abuse. It also sets out what the CPS is seeking to record when prosecuting these offences.

The full piece can be read here.