Weekly Digest: 24 June 2019

Following consumption of alcohol, the appellant and the victim went on a speedboat on the Thames driving at excessive speeds. The boat struck a submerged tree. The appellant was rescued but the victim was unresponsive when rescued and died in hospital. The following day he was interviewed as a significant witness. Although speeding on the Thames breached a byelaw, the interviewing officers did not know that, and the appellant was not given a caution or offered legal advice. He told the details of his story and then was asked further questions, including about the quantity of alcohol drunk. He was prosecuted for manslaughter on the grounds that he owed the victim a duty of care as the master of the vessel. Before the trial S absconded to Georgia, breaching his bail. The prosecution did not rely on the evidence of the officer from the hospital. A voir dire was held to determine whether the interview evidence was admissible. The judge excluded many of the answers to further questions about alcohol but admitted the appellant’s initial account. He was found guilty of manslaughter and sentenced to six years’ imprisonment, with a consecutive six months for the bail offence. His extradition was requested from Georgia for the manslaughter offence, and there was correspondence about the failure to surrender to bail, but it had not been listed as a separate offence in the request. The appellant appealed, submitting that (i) the entire interview should have been inadmissible, because although the interviewing officer had not been aware of the potential byelaw breach, the prosecution could not rely on his ignorance and the resulting lack of a caution and (ii) there was no jurisdiction to deal with the bail offence by reason of the rule of speciality.

The appeal on ground one failed; the officers had not acted in bad faith; they had not suspected the appellant of a criminal offence and had not been aware of the byelaw offences. While police could not ignore the possibility of a criminal offence to escape the application of a PACE Code, they should not be subject to a potential trap if careful searching of byelaws revealed an esoteric offence of which they could not be expected to have been aware. The judge had not been wrong to conclude that PACE Code C was not triggered, and that the interview had not required a caution or legal advice. However, in any event, the interview evidence in its redacted form had been admissible. The prosecution had not depended on the evidence from the interview. Further, it was difficult to see that allowing the evidence would be unfair given that the defence had stated that if the appellant had attended the trial, he would have relied on it to show the consistency of his account.

Ground two, however, succeeded. The prosecution had not included a bail offence in the extradition request. The only way in which the conviction could stand was under the Extradition Act 2003 s.151A(3)(c), if Georgia had consented to the offence being dealt with. The UK had not requested Georgia’s consent to deal with the appellant’s bail offence. There had been no basis in the extradition to pursue him for breach of bail, and the conviction and sentence on that count were quashed as a nullity.

The appellants, Assaf, Roden, Hyams, and Patel, all students at Manchester University, were all involved in conspiracies to evade the prohibition on the importation of a controlled drug and conspiracies to supply those drugs. The conspiracies were carried out principally – though not exclusively – via the Silk Road website, a market place for drugs and other illegal goods available on the dark web. The total value of sales for all drugs was recorded as $1.14 million.

The appellants raised a number of common grounds in relation to sentence; three of the four were rejected. First, the judge had not failed to give appropriate weight to the fact the appellants were young at the time of the offending ([32]). Second, arguments to the effect that an online operation (i) gave rise to less transaction violence and (ii) was a different type of offending than those contemplated by the sentencing guidelines were rejected as without merit ([33] – [35]). Third, the judge’s approach had been sufficiently flexible to take into account the roles of each offender and the harm requirements ([36]). Fourth, the judge should have taken account of the delay from the date of conviction to the date of sentence; this, however, would be included in the consideration of each appellant’s case ([37]).

Assaf ([38] – [39]). The principle submission that the judge should not have identified a sentence after trial which was outside the range for a Category 1 offence was rejected; this was a sophisticated enterprise and, in the face of its scale, youth and good character are of little help in terms of mitigation. Leave was however granted in part on the basis that, when sentencing on the counts relating to the important and supply of Ketamine, the judge sentenced by reference to the fact that Ketamine had been reclassified as a Class B drug whereas at the time of offending it was Class C. This point affected all the appellants’ sentences.

Roden ([40] – [42]). The judge had wrongly withheld credit for a guilty plea on the basis that the judge understood Roden to have pleaded guilty on the same day as Assaf. Furthermore, adjustment was to be made for the fact that the role played by Roden was not adequately reflected in his sentence; it was Assaf who was the prime mover of the enterprise, yet Roden had received a sentence comparable in length.

Hyams ([43] – [45]). Hyams’ sentence was also adjusted to take proper account of the role that he played in the conspiracy and the fact that consideration should have been taken of the delay in sentencing occasioned by Assaf’s contesting the basis for his guilty plea.

Patel ([46] – [49]). Patel had moved away from Manchester to distance himself from the offending; this showed he had thought better of the criminality in which he had engaged, and the result was only party to the conspiracy for under half of its duration. On that basis alone Patel’s sentence was manifestly excessive. Adjustment should also be made in light of the adjustments made for Roden and Hyams.

The applicant was charged with one count of production of a Class B drug (cannabis). He had been found alone in the loft area of a house in which 411 cannabis plants were being cultivated. He pleaded guilty to the offence and was sentenced to four months’ imprisonment. In sentencing, the judge remarked that the applicant had “been taken advantage” of, but the possibility that the applicant might be a victim of trafficking was not pursued. Following conviction, the Home Office served on the applicant a decision to deport. He subsequently made an application for asylum on the basis he was a victim of human trafficking. The matter was referred to the First-tier Tribunal (“FTT”) who concluded that the applicant was a victim of trafficking. This was also reflected in the Conclusive Decision that the applicant was a victim of trafficking. The applicant sought leave to adduce fresh evidence, including the findings of the FTT and the Conclusive Decision, and appeal against conviction on two grounds: (i) the CPS should not have made the original decision to charge or prosecute the applicant; and (ii), when the possible trafficking issue was raised at court., the proceedings should have been adjourned or stayed.

The applicant failed on the first ground but succeeded on the second; the conviction was accordingly quashed. In relation to ground (i), in the circumstances there was no proper basis to challenge the original decision of the CPS to prosecute as there was no information, at the time of charge, available to the CPS that might suggest the applicant was a victim of trafficking. On ground (ii), however, when the issue arose at court, it was clear that it was incumbent upon the CPS to seek adjournment for referral of the applicant’s case through the National Referral Mechanism. Further, on the basis of the Conclusive Decision the applicant would most probably have had a defence to the charge pursuant to s. 45 of the Modern Slavery Act 2015. Thus, the applicant’s conviction was unsafe.

The appellant was charged with one count of sexual assault contrary to s. 3 of the Sexual Offences Act 2003. The prosecution case was that, when the complainant had attended the appellant’s house to confront him about an email he had sent her, he had touched her in his attempts to have sex with her. At trial, the Crown sought to rely on matters set out in the complainant’s statement relating to “previous incidents of abuse and aggression by the defendant towards the complainant”. The application was made under ss. 101(1)(c), (d), (f), and (g) of the Criminal Justice Act 2003. The judge acceded to the prosecution’s application. The appellant was convicted. The appellant appealed against conviction on three grounds: (i) the basis on which the character evidence was admitted was flawed in that the way it was allowed to feature in the trial was too broad; (ii) the manner in which the evidence was utilised in cross-examination went beyond the scope of the bad character ruling and occasioned the appellant substantial unfairness; and (iii) the judge’s directions concerning the bad character evidence was inadequate.

The appeal was allowed, and the conviction quashed. In admitting the bad character evidence, the judge failed to adequately identify the basis and reasons admission and did not sufficiently set out the paraments of how the evidence was to be used. The general ruling of the judge allowed the prosecution to embark upon cross-examination that entered into areas of evidence that were peripheral, irrelevant, and prejudicial to the defendant (see [41] – [44] and [44 – [46]). Further, the deficiencies in the legal direction provided by the judge compounded the issues raised by the manner in which the evidence was adduced and used (see [47] – [49]).

The offender had, over a period of time, sent messages to AM and sought his compliance to various sexual demands on the basis that, if AM did not cooperate, intimate pictures of him would be released to his friends and girlfriend via social media. This abuse continued for some time, during which the offender performed oral sex on AM twice. Eventually, the offender said that a payment of £1,000 would bring the matter to an end. The offender pleaded guilty to two offences of sexual assault contrary to s. 3 of the Sexual Offences Act 2003 and one of blackmail, contrary to s. 21(1) of the Theft Act 1968. He was sentenced to a total term of 18 months’ imprisonment suspended for two years, with a rehabilitation and unpaid work requirement. The Solicitor General sought leave to refer the sentence to the court pursuant to s. 36 of the Criminal Justice Act 1988, submitting that the recorder, in sentencing, had fallen into error in failing to identify a number of aggravating features, including that AM had been threated over time. Further, the recorder erred in giving too much weight to the consensual nature of the first sexual encounter between the offender and AM. The total sentence, thus, failed to reflect public concern in relation to offences involving the threat of exposure of sexual imagery via social media.

The court quashed the sentence as unduly lenient and imposed a total sentence of 3 years’ immediate imprisonment, comprised of 2 years for the sexual assaults and 3 years for the blackmail offence to run concurrently. That a person once consented does not mitigate the severity of subsequent sexual assaults; the recorder had given too much weight to that factor. Further, although the recorder had identified the fact that the later sexual encounters were procured by blackmail, he failed to recognise the seriousness of that fact. This was humiliating treatment, compounded by “pure wickedness” in sending one of the images of AM to his girlfriend. In this context, it was important to remember s. 33 of the Criminal Justice and Courts Act 2015, which makes it an offence to distribute private sexual photographs without consent with the purpose of causing distress.

On 26 June 2018, the offender drove, without a licence or insurance, to the house of a Mr Webb, whose son and son’s partner the offender believed to have stolen jewellery. On his arrival, Mr Webb opened the door. When he failed to disclose the whereabouts of his son, the offender forced Mr Webb backwards into the hallway and pushed him into a cabinet a number of times. As Mr Webb fled, the offender produced a baton, gave chase, and severely beat him. The offender was charged and convicted on three counts: aggravated burglary (count 1),wounding with intent (count 2), and having an offensive weapon (count 3). On 13 March 2019, he was sentenced to concurrent terms of imprisonment amounting in total to 6 years and 6 months comprised of 6 years and 6 months’ imprisonment on count 1 and concurrent sentences of 5 years and 30 months on counts 2 and 3 respectively.

The Solicitor General made an application under s. 36 of the Criminal Justice Act 1988 for leave to refer the sentence to the court on the ground it was unduly lenient. In particular, the Solicitor General submitted that: (i) the judge fell into error in sentencing on count 1 in failing to take into account a number of aggravating features, including the fact that the baton was present when the offender entered Mr Webb’s house; (ii) the offence on count 2 involved higher culpability because of the premeditation and use of a weapon; and (iii) the sentence imposed failed to impose proper punishment for the overall offending.

The Court quashed the sentence on count 1 and substituted for one of 9 years. The three offences could be fairly regarded as a single incident and, although it was important to avoid double counting, the sentence imposed was not a just and proportionate punishment for the overall offending. It seemed unjust that the sentence was substantially less just because Mr Webb managed to escape. Although he was not attacked with a weapon in his home, he was pursued and further attacked when injured. The Court also quashed the 9 penalty driving points that had been imposed for driving uninsured without a licence and substituted it for 8 points in accordance with the requirements of s. 28(4) of the Road Traffic Offenders Act 1988.

The most senior criminal judge in England and Wales has expressed “enormous concern” that many crimes are not being prosecuted. Sir Brian Leveson, who retires on Friday as Head of Criminal Justice, has warned the system could collapse without investment.

The full piece can be read here.

More than 400 people whose crimes would normally attract a jail term of up to a year have instead served their sentences outside prison. The scheme, known as an enhanced combination order, has been running in three court districts since 2015.

The full piece can be read here.