This week’s Digest considers four judgments from the Court of Appeal (Criminal Division). In R v Cheeseman the court considered whether the householder defence was available to a soldier who stabbed a fellow serviceman in their army garrison. The question in R v Towers was whether the appellant’s conviction for joint enterprise murder caused a substantial injustice in the aftermath of the Supreme Court’s judgment in R v Jogee. In R v Yaryare the court on an Attorney General’s reference was asked whether two sentences for attempted murder were unduly lenient . Finally, in R v Fulton, the court considered whether a money launderer could be said to have benefitted personally from the approximately £20 million he laundered through his firm’s account.
R v Cheeseman [2019] EWCA Crim 149
The judgment of Lord Burnett of Maldon CJ, dated 13 February 2019, is available here.
The appellant was prosecuted for attempted murder and wounding with intent after stabbing a fellow serviceman in their Army accommodation. At a court martial the Board acquitted him of the former and convicted him of the latter. In this appeal against his conviction he argued that he could rely on the self-defence “householder defence” contained within section 76 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”). The appellate court held that while the judge at court martial had erred in law in dismissing the householder defence, this did not make the conviction unsafe, as the appellant did not genuinely believe that it was necessary to use force to defend himself.
The appellant and Lance Corporal Lindley were both garrisoned in Cyprus. Lindley entered the appellant’s room with his consent. They both remained drinking and chatting for a while before the appellant left to get some lunch. Upon his return he found Lindley drunk and damaging the room. In the altercation that followed the appellant repeatedly stabbed Lindley. The appellant’s case was that he acted in self-defence at all times. He argued that the householder defence was available because the incident occurred in the appellant’s room in forces’ accommodation, and he had instructed Lindley to leave.
The appeal raised three questions. First, was the householder defence available in cases where the injured person entered a building lawfully, but thereafter became a trespasser? Secondly, was there evidence that the appellant believed Lindley to be a trespasser? Thirdly, and in any event, was the conviction safe?
On the first question, section 76 (1) and (2) of the 2008 Act provides that for D to successfully rely on the defence of self-defence the degree of force used must be reasonable. Subsection (5A) provides that in a householder case any force short of grossly disproportionate is to be seen as reasonable, and subsection (8A)(d) provides that for a case to be a householder case the force can only be used at the time that D believed V to be in, or entering, the building as a trespasser. The court held that on a plain construction of the statutory language subsection 8A(d) is concerned with the belief of D whether V was in or entering the building as a trespasser, not a belief whether V simply entered the building as a trespasser. The judge at first instance had erred in interpreting subsection 8A(d) in a similar fashion to section 9 of the Theft Act 1968, where one of the elements of burglary is for D to have entered the building as a trespasser.
On the second question, there was slight evidence that the appellant believed Lindley to be a trespasser. In his examination-in-chief he stated that he demanded Lindley leave his room. The judge therefore erred in suggesting that there was no evidence which could support a householder defence, and it should have been left to the tribunal of fact, the Board.
However, on the third question, it was abundantly clear from the judge’s sentencing remarks that the Board was satisfied that the appellant did not genuinely believe that it was necessary to use force to defend himself. This was the starting point for consideration of self-defence. The conviction was safe despite the error of law and consequent misdirection identified.
R v Towers & Anor [2019] EWCA Crim 198
Judgment, available here, was handed down by Sir Brian Leveson P on 20 February 2019.
Towers, Hawkes and Curtis were convicted of murder and wounding with intent in 2007. Towers was sentenced to a minimum term of 13 years, and Hawkes 16 years. Curtis was sentenced to life imprisonment with a minimum term of 17 years. The Criminal Cases Review Commission referred the murder conviction of Towers to the court on the basis of the change in the law brought about by R v Jogee [2016] UKSC 8 and R v Johnson [2016] EWCA Crim 1613. The sentence of Hawkes was also referred on the basis that the trial judge failed to give credit for the relevant number of remand days. This was not disputed. Towers’ appeal against his murder conviction was dismissed; it was open to the jury to conclude that he had the requisite intention to cause serious harm, and so the substantial injustice test set down by R v Johnson was not met.
The three youths, aged between 16 and 19, attacked Kevin Johnson outside his home in Sunderland. The fatal stab wound was inflicted by either Curtis or Hawkes. Shortly afterwards the three attacked Jamie Thompson. He was stabbed but recovered. The jury unanimously convicted all three of both murder and wounding with intent. Towers applied for leave to appeal both counts. On the first, the jury ought to have been direction that if the only evidence of active participation came after the fatal stabbing it could not render him guilty of murder. On the second, the judge had been wrong to reject the submission of no case to answer given that the evidence was that Towers had not touched Thompson but only conversed with him. Both submissions were rejected by the appellate court in 2008; the jury had found that Towers joined in the attack on Johnson before the fatal wound was inflicted, and he had stopped Thompson as a ploy to detain him.
The CCRC in analysing the case considered that (i) at the time of the fatal attack Towers was standing away from the struggle, (ii) given the evidence it is likely that foresight rather than personal or shared intention to commit really serious harm was central to his conviction, (iii) none of the evidence suggested an intention to encourage or assist others to use their weapons against Johnson, and (iv) there was evidence that Towers was angry with the principal and challenged him about what had happened, providing good evidence that he did not have the requisite intention. This conclusion was reached despite acknowledging that the jury had found that, at a minimum, Towers had realised his co-defendants were armed and that really serious harm might result.
The Court briefly rehearsed the present legal position as set out in R v Johnson. The test was whether, were the convictions to be upheld, a substantial injustice would result. This was a high threshold and resulted from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The starting point on the evidence of this case was the clear conclusion from the jury that Towers knew that both he and the principal had weapons and that he at least foresaw the possibility of the infliction of really serious harm. Immediately before the fatal stabbing Towers had thrown a paving slab at Thompson. The jury was open to conclude that Towers had the requisite intention to cause grievous bodily harm to Thompson. The test of substantial injustice was not satisfied.
R v Yaryare & Anor [2019] EWCA Crim 78
Judgment was handed down by Davis LJ on 25 January 2019.
The Attorney General referred two cases to the court on the ground that the sentences were unduly lenient. Both offenders, Yaryare and Hassan, were convicted in October 2018 on a number of counts of unlawful violence, public disorder and attempted murder arising out of a number of violent incidents in central Leicester. Yaryare was sentenced to thirteen and a half years for the attempted murder while Hassan received thirteen years. The court upheld the Attorney General’s reference with respect to Yaryare only, substituting a sentence of seventeen and a half years.
The charges arose out of a day-long gang fight through central Leicester in April 2015, culminating with one victim receiving 13 stab wounds in Bede Park. Yaryare brought a knife and was identified as the one leading a group of 20 youths in pursuit of this victim through the park, while Hassan brought along a metal pole and was one of the other members of the group. Yaryare had fifteen previous convictions, while Hassan had none.
The trial judge was referred to the sentencing guideline for attempted murder. Prosecution counsel suggested that for both defendants bringing a weapon to the scene, and the other aggravating factors, indicated a sentence towards the lower end of level 1 of the guidelines or the top end of level 2, or seventeen to 25 years’ custody. The judge disagreed, placing the sentences in the middle of level 3. The judge considered that the stabbing of the victim itself was spontaneous, and while Yaryare played a very prominent role in events Hassan did not. Yaryare received a sentence of thirteen years and six months for the attempted murder, fourteen years and six months in total, while Hassan received a sentence of thirteen years both for the attempted murder and overall.
The appellate court held that the judge has misdirected himself as to the starting point in the relevant guideline. The fact that the differential between the two was only six months despite the significant aggravating factors for Yaryare was also surprising. The court held that the sentence for Yaryare was unduly lenient. His sentence was placed in level 2, with a starting point of fifteen years, which was increased to seventeen years and a half years for the attempted murder charge by the presence of the significant aggravating factors. In total Yaryare was sentenced to eighteen and a half years. The court also concluded that while Hassan’s sentence was lenient, it was not unduly lenient, and so the reference was dismissed as far as it related to him.
R v Fulton [2019] EWCA Crim 163
Judgment, available here, was handed down by Thirlwall LJ on 15 February 2018.
The appellant was convicted of conspiracy to disguise, convert or transfer criminal property contrary to s1(1) of the Criminal Law Act 1977. He was sentenced to four and a half years’ imprisonment and made subject to a confiscation order in the sum of £104,228, to be paid within six months. He appealed against that confiscation order on the grounds that he had not benefited from his criminal conduct. The appeal was dismissed; while the appellant had no legal interest in the account through which he laundered the money, his criminal conduct meant that he could be said to have obtained the money and so benefited from it.
The underlying fraud was a Missing Trader Intra Community Fraud (“MTIC”) fraud which cheated the revenue by traders failing to pay or account for VAT received from a trader in another EU country to whom they had purported to sell goods. The appellant, an experienced FX trader, was an account manager at a money service bureau called Omnis FX capital (“Omnis”). In the period March to November 2011 the estimated tax loss to the European Revenue Authorities was about £17.5 million on a total sum passing through Omnis of around £29.5 million. The appellant was responsible for managing 60% of those trades.
The judge found that the appellant did not pay a leading role and assessed his culpability as medium. She also found that he didn’t make significant personal gain, but was primarily motivated by getting more business and commission for the company. The confiscation order was based on the sum through which the appellant had fraudulently benefited. However, while the prosecution argued that the benefit figure should be the amount of money that went through Omnis as a result of the illegal trades for which the appellant was responsible (60% of £29.5 million), the appellant argued that he had actually only personally benefited from a commission of £4,200 for those trades. The judge agreed with the prosecution. The appellant appealed.
Pursuant to section 6(4)(c) of the Proceeds of Crime Act (“POCA”) the court must decide whether and to what extent D has benefited from his particular criminal conduct. Having done so the court must then assess the recoverable amount under a confiscation order, which is an amount equal to D’s benefit from the conduct concerned or, if less, the available amount. This is the benefit figure. The question was whether the judge was right to find that the defendant obtained 60% of the criminal funds which came through the Omnis account.
The court found that the judge was right. The difference between the appellant and a notional employee who is unwittingly involved in the mechanics of money laundering is that the appellant was knowingly acting as a money launderer. This act was outside his official employment. He was not merely a custodian for the laundered money, but benefited directly. The fact that he had no legal interest in the Omnis account was secondary to the fact that he had sole operational control over the transfers that he was responsible for. He did therefore obtain the funds. The appeal was dismissed.
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