Weekly Digest: 25 March 2019
This week’s Digest considers five judgments. The first is a decision of the Privy Council relating to a conviction under the Prevention of Corruption Act 2002 (Mauritius). The second, third and fourth judgments were recently handed down by the Court of Appeal (Criminal Division). Respectively they deal with: a reference by the Attorney General of unduly lenient sentences imposed for child sex offences; the principles governing s. 6(5) of the Proceeds of Crime Act 2002; and whether a prison officer to whom an unsolicited comment was made should be considered to be investigating an offence such that the PACE codes applied. The final case is a judgment of the Divisional Court in which the issue was whether the possession of an weapon which is offensive per se for work purposes is a reasonable excuse within the meaning of s. 1(1) of the Prevention of Crime Act 1953.
Director of Public Prosecutions v Jugnauth  UKPC 8
The advice of the Board, available here, was given by Lord Lloyd-Jones on 25.02.19.
This issue in this appeal was whether a minister’s sister had a personal interest in a decision taken by him to reallocate funds to pay an amount to a company that had recently won a healthcare contract. The appeal was dismissed; the decision in question in this case was one regarding the reallocation of funds, which would have been paid in any event, and thus was a decision that was not capable of affecting the interests of either the minister’s sister or the company.
Mr Jugnauth, the Vice Prime Minister and Minister of Finance and Economic Development, was convicted of the offence of “conflict of interests” under the Prevention of Corruption Act 2002 (Mauritius) after taking part in a decision involving a company which had been awarded a contract pursuant to a public procurement process; he held 50 shares in the company and his sister, Mrs Malhotra, was a director in the same company and held 86,683 of the 368,683 shares. The decision itself related to the reallocation of funds to be paid to the company pursuant to the contract it had won. The Supreme Court of Mauritius allowed the Respondent’s appeal and quashed the conviction.
The Privy Council unanimously dismissed the prosecuting authority’s appeal. The offence at issue in this appeal, which creates a duty on an official not to vote or take part in proceedings relating to a decision in which he, a relative or associate has a personal interest, is wide ranging and these provisions are intended to prohibit situations where corruption might arise. The crucial issue is whether Mrs Malhotra had a personal interest in the decision in question. The Board considered that Mrs Malhotra could not have had a personal interest in the decision whether the payment owing under the contract was to come from one department’s budgeted funds or another’s. In fact, it could not have affected the interests of the company or Mrs Malhotra in any way. The funds to make the payment to the company were available and would have been paid in any event; the Respondent had only been involved in the decision regarding the pocket from which the funds should come.
R v YZ  EWCA Crim 466
The judgment, available here, was handed down by Lady Justice Thirlwall on 19.03.19.
Total sentences of six years and nine months’ imprisonment and six years’ imprisonment imposed on a male and female offender respectively following guilty pleas to child sex offences were referred to the Court by the Attorney General on the grounds that they were unduly lenient. The reference was rejected; the sentences were lenient, but not unduly so. The offending had been rightly categorised and the judge’s approach to sentencing was not flawed.
Paul Jarvis appealed on behalf of the Attorney General.
Mr Barker (“B”), now aged 53, had an addiction to online pornography, and sought out increasingly extreme images. He met YZ, aged 29, in 2012. They formed a sexual relationship. YZ sent him images of herself engaging in sexual activity in return for money. Between 2014 and 2016, YZ included her daughter, aged between two and four, in the images. The offenders each contended that the other had suggested including her in the images. Throughout the period of abuse, B sent money to YZ. B made no comment at interview but submitted prepared statements detailing how he had in the past been sent unsolicited indecent images of children which he had then deleted and that he had developed a severe addiction to online pornography. At interview, YZ downplayed her involvement with B and was adamant that she had participated for money, not sexual gratification. She claimed to have ceased contact with B after he asked to meet her daughter. The judge explained his intention to pass a sentence on the most serious count, namely a specific incident of causing a child under 13 to engage in sexual activity (count 7), to reflect the totality of the offending, and to mark the other offences with concurrent sentences. B pleaded guilty to six offences of causing a child under 13 to engage in sexual activity, including count 7. For each offence he received a concurrent nine-year sentence, reduced by 25% to reflect the guilty pleas tendered at different stages. B also received various concurrent sentences of up to two years’ imprisonment for various indecent images offences. YZ pleaded guilty to making indecent images of a child, distributing indecent images of a child, causing a child under 13 to engage in sexual activity, including count 7, and converting criminal property. YZ’s sentence before a one-third reduction for her early guilty plea was nine years’ imprisonment.
The Attorney General’s core submission was that, if the starting point for the Count 7 offence was 8 years, it cannot be right that the totality of the remainder offending results in only one additional year of imprisonment. In the Court’s view, the sentences were lenient, but not unduly so. It therefore granted leave to the Attorney General, but declined to interfere with the sentences. The offending had been correctly categorised in Category 2A; importantly, the exchange of money between the Respondents was not commercial exploitation as envisaged in the guideline and there had been no sexual contact between B and the victim and Z had not penetrated her (see  – ). The appropriate starting point for Count 7 was therefore eight years’ imprisonment. It was plain that the judge had taken that starting point and moved down to reflect that this case was at the lowest end of offence seriousness for penetration and upwards again to reflect the victim’s age, the culpability factors and the number of offences committed. The fact neither offender had previous convictions and that both expressed deep genuine remorse was also considered as having properly affected the judge’s sentencing decision. The reductions for the guilty pleas had then been correctly applied.
R v Morrison  EWCA Crim 351
The judgment, available here, was handed down by Lord Justice Singh on 08.03.19.
In this appeal, the Court considered the principles governing the s. 6(5) of the Proceeds of Crime Act 2002 which require the court to make a confiscation order if it would not be disproportionate to require the defendant to pay the recoverable amount. The proportionality exception, however, did not mean that a general discretion was vested in the court; it neither called for nor permitted a general exercise of balancing various interests, including the potential hardship or injustice which might be caused to third parties by the making of an order which included a tainted gift.
Mr Morrison’s (M) partner (C) had had been unable to pay the rent for her local authority house. M had transferred £38,200 to her to enable her to purchase the house at a substantial discount. Most of the money was derived from the proceeds of his offending. After purchasing the property, C owned it outright, with the proviso that, if she sold it within five years, she would be required to repay a proportion of the discount. In imposing the confiscation order, the Recorder noted that the monies which M had given to C constituted a “tainted gift” within the meaning of s. 77 of the Proceeds of Crime Act 2002 (“POCA”), but decided that it would be disproportionate to make any order in relation to the tainted gift. He noted that C was not in a position to sell the house because she would have to repay a substantial part of the discount and her children would be left homeless. He concluded that M had no interest in the property and it would not be possible for the Crown to recover it or any part of its value from C. He therefore did not include the tainted gift in the recoverable amount. The prosecutor appealed, contending that the Recorder had erred in concluding that it would be disproportionate to include the tainted gift in the confiscation order.
The appeal was allowed, and the tainted gift included in the recoverable amount. Several principles could be distilled from the authorities in relation to s.6(5) POCA.
- 6(5) had been amended in 2015 so as to provide a statutory codification of what had already been held to be its proper interpretation by the Supreme Court in R. v Waya  UKSC 51.
- The court had to ask itself whether a confiscation order was a proportionate means of achieving the aim of POCA.
- The aim of POCA was the removal from criminals of the proceeds of their crime. Its purpose was restorative and not punitive.
- Criminals must not be able to defeat confiscation proceedings by making gifts of assets which could not be recovered, as that would undermine the efficiency of the scheme.
- The exception concerning proportionality in s.6(5) was not to be equated with a general discretion being vested in the court, or even with a provision requiring or permitting the court to avoid the risk of serious injustice. It neither called for nor permitted a general balancing exercise in which various interests were weighed, including the potential hardship or injustice which might be caused to third parties by the making of an order which included a tainted gift.
- It was not appropriate to set out an exhaustive list of circumstances in which the proportionality exception might be satisfied; the enquiry was highly fact-specific.
The recorder had made the fundamental error of basing his decision upon the possibility of hardship or injustice to a third party. The insertion of s.10A into POCA did not provide for third party rights to be taken into account when the confiscation order was made. S. 10A was not a general provision permitting the court to act in a way to avoid hardship or injustice to a third party. If such considerations were to be taken into account at all, that was at the later stage of potential enforcement action. That conclusion was reinforced by the consideration that a confiscation order was made in personam and not in rem.
It was clear that an enforcement receiver could have been appointed under s.50(1) POCA , and could have applied for sale of the property under s.51. However, that had not been pointed out to the recorder, and it was unfortunate that the prosecutor had left him with the impression that an enforcement receiver could not be appointed.
R v Harper  EWCA Crim 343
The judgment, available here, was handed down by Sir Brian Leveson PQBD on 05.03.19.
This primary issue in this appeal was whether a prison officer, who was the recipient of an unsolicited comment by a defendant in custody, was or was not investigating an offence for the purposes of triggering an obligation to comply with the PACE codes of practice. The Court held that she was not and therefore no such obligation was triggered. The trial judge had, therefore, been entitled to admit her evidence.
The appellant and her co-defendant had been out drinking. An altercation took place in a pub, during which the appellant punched a man and fought with another woman. A third person attempted to intervene, and it was alleged that the appellant had attempted to hit him on the head with a glass and lashed out again in his direction while on the ground. The co-defendant then stabbed the man and killed him. The appellant and co-defendant were arrested the following day. A knife was found in the garden with the victim’s DNA on it. The appellant claimed she had been unaware that her co-defendant was carrying a knife. A blood sample taken from the appellant to ascertain whether she was involved in the offence revealed the presence of both prescribed and proscribed drugs. A prison officer gave evidence that while in custody the appellant told her that she was “in for murder”, “it was both of us really but I’m just saying it was him” and “we stabbed him but I am pleading not guilty”. The officer wrote down the words the appellant had spoken but did not enter them into the prison’s computer system until a few days later. She then destroyed the note.
The appellant appealed against conviction, making three submissions: (i) that the prison officer’s evidence should not have been admitted as the officer fell within s. 67(9) of the Police and Criminal Evidence Act 1984 and, accordingly, should have complied with the code of practice which required her to record any unsolicited comments and ask the suspect to sign the note; (ii) the judge should have directed the jury that her ignorance of the knife amounted to an overwhelming supervening act; and (iii) the toxicology evidence was inadmissible as it was not being used for the stated purpose for which it had been taken.
The appeal was dismissed. Regarding the admissibility of prison officer’s evidence, the Crown’s analysis was that the prison officer was not investigating any offence such as would trigger an obligation under the code, but was the recipient of an unsolicited comment; that the instant case could be distinguished from the circumstances in R. v Devani  EWCA Crim 1926 was, therefore, correct. The circumstances in which the comments were made did not engage the code or the need to obtain a signed copy of the comment. While points could be made about the failure to promptly record the comment and the destruction of the note, those points all went to weight rather than admissibility.
Regarding the appellant’s second submission, it was made clear in R. v Jogee  UKSC 8, that ignorance of weapons “will be evidence going to what the intention of [the second defendant] was, and may be irresistible evidence one way or another, but it is evidence and no more”. The presence of a knife did not constitute an overwhelming supervening event, if it did, the observation in Jogee that it was no more than evidence from which the jury could reach conclusions about intention would be wrong. The directions given to the jury were approved by counsel, and no submission was made to the effect that overwhelming supervening event should have been left to the jury.
Finally, regarding the admissibility of toxicology evidence, the judge had rejected the challenge to admissibility, finding that the evidence was also relevant to the jury’s assessment of the appellant’s evidence. The evidence was admissible for that purpose for the reasons given by the judge and, given that the appellant had already admitted taking prohibited drugs, it could not be considered prejudicial; the judge’s failure to explain the potential relevance of the evidence did not impact on the safety of the conviction.
Garry v Crown Prosecution Service  EWHC 636 (Admin)
The judgment, available here, was handed down by Lady Justice Rafferty on 19.03.19.
When considering the defence of ‘reasonable excuse’ for an offence carrying an offensive weapon pursuant to s. 1(1) of the Prevention of Crime Act 1953, the Crown Court had been entitled to consider that, even though the weapon might have been used for work purposes, the court nevertheless had to consider whether such uses were reasonable and that, in those circumstances, the intention of the offender regarding the use of that weapon was irrelevant.
Peter Ratliff appeared for the Respondent.
This was an appeal by way of case stated against a failed appeal against conviction for possession of an offensive weapon – a butterfly knife – contrary to s. 1(1) of the Prevention of Crime Act 1953 (“the 1953 Act”). The knife was found in the glove compartment of his car. The Appellant had maintained in both the Magistrates’ and the Crown Court that the use of the butterfly knife for his work as a plumber, electrician, and gas engineer amounted to a reasonable excuse within the meaning of s. 1(1) of the 1953 Act. Essentially, there were two issues for the Court; namely whether the Crown Court was:
- “correct in making a distinction between items such as a Stanley knife and a butterfly knife in holding that the latter was offensive per se whereas the former was not and was capable of being a tool”; and
- “correct in describing as irrelevant the Appellant had no convictions for violence”.
Both questions were answered in the affirmative. As for (i), the Appellant had suggested that the Crown Court had found, in essence, that a weapon offensive per se could not lawful be used as a tool. This, in Rafferty LJ’s view, was wrong; all the Crown Court found was that a Stanley knife, i.e. a weapon not offensive per se, was capable of being used as a tool. An innocent purpose for having an offensive weapon in a public place does not equate to a reasonable excuse; in this case, the evidence did not lead to the conclusion that the Appellant’s quotidian tasks required the use of an offensive weapon.
Regarding (ii), the issue was whether Appellant could prove reasonable excuse for possession of the offensive weapon in a public place; purpose or intention of possession of the weapon were irrelevant and therefore the Appellant’s previous convictions had absolutely no role to play.
Lady Hale: at least half of the UK judiciary should be female
Speaking at an event in the supreme court to mark the centenary of women’s entry into the legal profession, Lady Hale president of the supreme court and the first woman to take on that role, made the call for full gender equality across the judiciary.
Police failing to protect rape and abuse victims, says super-complaint
Police are “systematically failing” to protect victims of domestic and sexual violence, according to campaigners in the second super-complaint made to a national watchdog. The Centre for Women’s Justice (CWJ) has accused police forces of failing to use existing powers to deal with domestic abuse, harassment, stalking and rape.
The full piece is available here.