Weekly Digest: 25 June 2018

This was a renewed application, considered on the papers, for leave to re-open a final determination of the full court refusing leave to appeal against the applicant’s convictions for seven offences, of which four related to drugs offences and three to offences of a sexual nature involving a child. The application, pursuant to Part 36.15 of the Criminal Procedural Rules, was brought on the basis that:

• neither the applicant’s solicitors nor his representative ever received notice of the original hearing;
• the applicant only learned of the hearing on the day that it took place;
• in the absence of the notice, the applicant was wrongly prejudiced in making his case;
• the circumstances should be considered exceptional as there was a procedural irregularity in not notifying the applicant of the hearing date;
• there is no alternative effective remedy; and
• there was no delay in making the application.

The Court considered the jurisdiction identified in Yasain [2016] QB 146 to re-open an appeal; the necessary conditions are that:

1. it is necessary to do so in order to avoid real injustice;
2. the circumstances are exceptional and make it appropriate to re-open the appeal; and
3. there is no alternative effective remedy.

Even if those conditions are satisfied, the Court retains a residual discretion to decline to re-open, and, “generally, the Yasain jurisdiction is directed toward exceptional circumstances involving the correction of clear and undisputed procedural errors” ([18]).

The application was refused on the basis that any procedural errors were the fault of the applicant and his advisers, rather than the Registrar and the office of the Court of Appeal. Even if that conclusion were wrong, the it was also noteworthy that neither the applicant nor his advisers sought to enquire as to the progress of the renewed application for leave. Finally, and in any event, the application did not address why, in this particular case, it was necessary to hear from counsel in order to avoid real injustice.

The appellant was convicted of three offences in April 2017: counts 1 and 2, which charged Sexual Assault of a child (“C”) under 13, contrary to s. 7(1) of the Sexual Offences Act 2003 (“SOA”); and count 3, which charged sexual activity with a child contrary to s. 9 SOA. C reported the conduct to the police in February 2016. In relation to counts 1 and 2, C’s evidence at trial that she was sexually assaulted while being tucked into bed in the evening; in relation to count 3, C’s evidence was that the appellant would pinch her bottom in front of her mother. There was also a fourth count on the indictment, on which the jury could not reach a verdict, which charged rape; as far as that was concerned, C said that, when she was almost 14 and her mother was out, the appellant placed his penis in her vagina. C’s mother also gave evidence that the appellant would kiss C with tongues. He denied the allegations.

The appellant sought to appeal against his convictions on the grounds that the judge’s summing-up was deficient in five respects. The was a complaint in relation to what the jury were told about the appellant’s alleged use of cocaine. The prosecution case on count 4 had included evidence of the appellant’s taking cocaine on the night of the alleged rape, a fact which he had lied about to the police. The appellant’s case was that the judge’s direction conflated two distinct issues – namely, bad character evidence and the lies he had told about the use of drugs. However, in the Court’s view, although the judge’s direction could, and indeed should, have been more clearly expressed, it contained the critical direction that lies to the police about drug-taking could not be used to prove the appellant had committed the offences charged.

The second point was a criticism in relation to the ‘sexual’ element of the offences charged under counts 1 to 3. The written Route to Verdict, however, made clear the jury had to be satisfied that (1) there was deliberate touching, and (2) that a reasonable person would consider the touching, because of its nature or circumstances and/or purpose, to be sexual. There was no material misdirection.

The final three points, in the appellant’s submission, demonstrated an objectionable endorsement of C’s evidence. The first of those related to C’s delay in reporting the offences. However, the Court endorsed the judge’s approach; where the defence contends that if allegations were true, there would be no delay in reporting them, a jury should plainly be directed to consider the potential difficulties for a child in making a complaint.

The fourth criticism related to the direction as to delay, specifically to a child’s ability to recall events in the past. Even though these complaints may have been well made, the appellant could not point to any specific element of prejudice occasioned by the direction.

Finally, the fifth point criticised the direction regarding the displays of distress by C. The appellant accepted that the jury were entitled to take into account C’s distress but submitted that the judge’s direction encouraged the jury to use the evidence of her distress in support of the prosecution case. The Court acknowledged that a judge should tread cautiously here, but the judge’s direction merely invited the jury to consider whether they were sure that C’s emotions were genuine.

As all five points failed, the appeal was dismissed.

In March 2006, the applicant pleaded guilty to a number of offences relating to mortgages which he had fraudulently obtained from the Bradford and Bingley Building Society and the National Westminster Bank. When sentenced, the judge refused an application by the prosecution under s. 6 of the Proceeds of Crime Act 2002 for a confiscation order in the sum of £298,457, the amount of the two advances the applicant had obtained. The Court of Appeal ([2007] EWCA Crim 1577) allowed the prosecution’s appeal and an order was made in the sum agreed by the parties.

The applicant now sought leave to appeal, with an extension of time (“EoT”), on the basis that R v. Waya [2012] EWCA UKSC 51 was authority for the proposition that the benefit figure should have been the value of the properties he bought less the amount of the mortgages he had fraudulently obtained.

The substantive application was rejected on the basis that the applicant had provided no evidence about the legal machinery of the mortgages such that there was no basis for his suggestion that it was the same used in Waya. Further, the applicant had supplied no evidence about the basis upon which the sum was agreed. The application for an EoT was also refused; there was no good reason for the exceptionally long extension, over 10 years, that would be required.

Several unnamed claimants have brought a challenge to the current system alleging that it hinders rehabilitation as it stops people with minor past convictions applying for jobs and moving on with their lives, the Supreme Court has been told.

The full piece can be read here.

An embezzler, jailed for 13 years for stealing £50m from the Nigerian government and using it to buy properties in the UK, has alleged that police corruption rendered his conviction unsafe and he will not get a fair hearing at appeal court level.

The full piece can be read here.

It is estimated that a third of those arrested by police in England and Wales are suffering from mental health illness. The special report, by the BBC’s Jeremy Cooke, investigates the efforts being made to change the way the criminal justice system treats mental illness.

The report can be accessed here.