Weekly Digest: 25 May 2020

The appellant appealed against two convictions for attempting to escape from lawful custody, imposed following his attempts to escape having been detained pursuant to an interim custody order (“ICO”) made pursuant to article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972.

The 1972 Order had been part of a legislative regime which permitted detention without trial (commonly referred to as internment). Article 4(1) provided that an ICO could be made where the Secretary of State considered that an individual was involved in terrorism. An ICO had been made in respect of the appellant in 1973. It was signed by a minister of state and there was no evidence that the Secretary of State had personally considered whether the appellant was involved with terrorism. The appellant was convicted in 1975 of attempting to escape from his detention under the ICO. Documents were released under the 30-year rule which showed that counsel (Brian Hutton QC) had given an opinion that a court would probably hold that the Secretary of State should make the decision under article 4(1) personally. The appellant’s convictions were upheld by the Northern Ireland Court of Appeal. He appealed to the Supreme Court.

Delivering the judgment of the Supreme Court, Lord Kerr stated that the seriousness of the consequences of a decision was a factor to be taken into consideration in deciding whether a power had to be exercised by the Secretary of State personally. To the extent that Re Golden Chemical Products [1976] Ch. 300 suggested otherwise, it was wrong. It was unnecessary to determine whether there was a presumption that Parliament should be taken to have intended the Carltona principle to apply. Parliament legislated against the background that the principle was well-established, but was willing on occasion explicitly to displace the principle. His lordship stated that these considerations did not amount to a presumption that the principle applied unless it was disapplied by express statutory language. The court’s provisional view was that the matter should be approached as a matter of textual analysis, unencumbered by the application of a presumption, but keeping in mind that a statutory duty placed on a minister could generally be exercised by a member of their department.

Turning to article 4(1), the court stated that the language was unambiguous. it was the Secretary of State who had to consider whether the person was suspected of being involved in terrorism. Absent the Carltona principle, there could be no doubt that the power to make an ICO was reserved to the Secretary of State alone. Article 4(2) provided that “An [ICO] of the Secretary of State shall be signed by a Secretary of State [or] Minister of State”. That provided for a segregation of roles between making the ICO and signing it, indicating that the two functions called for distinct treatment; further, the words “of the Secretary of State” denoted that the ICO was personal to the Secretary of State. Even if there was a presumption that the Carltona principle applied to article 4(1), it was displaced by the interpretation of article 4(1) and article (2). Further, the provision gave the secretary of state the momentous power of deciding whether an individual should be kept in custody, possibly indefinitely. That provided an insight into Parliament’s intention, namely that such a crucial decision should be made by the Secretary of State. The ICOs, as they were made by a minister of state, were unlawful. As a result, the appellant’s convictions were quashed.

The claimant (who waived her right to anonymity), challenged the defendant’s decision not to prosecute XY for an offence of voyeurism. She was granted permission and her application for judicial review was to be heard by the Divisional Court. However before the case was heard, the Court of Appeal (Criminal Division) heard and gave judgment in an unconnected case which raised the same point of law (Richards [2020] EWCA Crim 95). The claimant had been given permission to intervene in the Court of Appeal and counsel made written and oral submissions on her behalf at the hearing. The Court of Appeal’s decision on the point of law meant that the defendant could not continue to resist the claim for judicial review. The defendant agreed to quash the decision not to prosecute, and to take a fresh decision in the light of the Court of Appeal’s ruling on the point of law. By a consent order dated 5 February 2020 the claim for judicial review was withdrawn, on terms that the defendant would undertake a fresh review of the decision not to prosecute by no later than 4 May 2020. The order provided that the court should “determine the matter of costs by way of written submissions only”. The defendant conceded that he should pay for the claimant’s reasonable costs of the judicial review claim. The issue for the Divisional Court was whether those costs may properly include the claimant’s costs of intervening in the proceedings in the Court of Appeal. The defendant contended that there was no jurisdiction to order payment of the claimant’s costs of intervening in the Court of Appeal proceedings because they were not costs “of or incidental to” the judicial review proceedings, within the meaning of section 51(1) Senior Courts Act 1981. The claimant contended that the costs in question were recoverable in law as costs “incidental to” the judicial review proceedings, and that on the facts, as a matter of discretion, the claimant should be awarded those costs.

Spencer J observed that there is currently no Criminal Procedure Rule or Practice Direction which sets out the procedure for applying to intervene in proceedings in the Court of Appeal (Criminal Division). There appeared to be no power to award costs, within the appeal itself, to an intervener. By contrast, in the Supreme Court express provision is made for interveners and their costs. Rule 26 of the Supreme Court Rules 2009 provides that any person may apply to the Court to intervene in an appeal, and in particular “any official body or non-governmental organization seeking to make submissions in the public interest” and “any person with an interest in proceedings by way of judicial review”. An intervener is deemed to be a “party” to the appeal. The court was satisfied that it was entirely reasonable for the claimant to intervene in the appeal of Richards, and satisfied that her intervention was directly relevant to the judicial review proceedings.

The court concluded that the claimant’s intervention in the criminal appeal of Richards was plainly “of use and service” in the judicial review proceedings because it advanced the claimant’s arguments on the very same point of law. That was precisely why the intervention was permitted. The intervention was plainly “relevant” to the judicial review proceedings because the issue of law in question went to the heart of the claim for judicial review, and the criminal appeal was ultimately determinative of the judicial review proceedings. The intervention was “attributable to the defendant’s conduct” because there was a most unusual and unsatisfactory contradiction between the stance taken by the defendant in resisting the judicial review on the one hand and resisting the criminal appeal on the other. The Crown was, in effect, arguing opposite cases on the same point of law in parallel proceedings. More generally, the intervention was attributable to the defendant’s conduct because the reason underlying the necessity for the claimant to intervene and argue the same legal point arose from the decision not to prosecute XY, which was the conduct challenged in the judicial review.

Spencer J was abundantly satisfied, in the very unusual circumstances of this case, that there was jurisdiction to award the claimant, as part of her costs of the judicial review proceedings, her costs of intervening in the criminal appeal of Richards. In his lordship’s judgment they were costs “incidental to” the judicial review proceedings. The claimant was permitted to intervene in the criminal appeal, quite exceptionally, because the point of law for decision in the appeal was the very same point of law for decision in the judicial review. Because that point of law was likely to be determinative of the judicial review, and because she should not have been disadvantaged by the fact that the criminal appeal was to be argued before the judicial review, it was necessary, reasonable and proportionate that she should intervene and participate actively in the criminal appeal, through counsel, to argue that which she sought to argue in the judicial review and (in effect) seek to persuade the Court of Appeal to declare the law to be in her favour. Had she not intervened she would have been deprived of the opportunity to argue her case in the forum which was to decide the very point of law on which her judicial review claim would stand or fall. The costs of intervening included the preparation of the letter to the Registrar of Criminal Appeals seeking permission to intervene, the costs of counsel’s preparation of the skeleton argument and other documentation served as part of the claimant’s intervention, and counsel’s preparation for and attendance at the hearing of the appeal.

As a postscript, Spencer J stated that he would not want the costs ruling to be regarded in any way as an encouragement to other litigants in judicial review claims to seek to intervene in proceedings in the Court of Appeal (Criminal Division).

The appellant was stopped by police whilst driving one evening. He was accompanied by a friend, who was sitting in the passenger seat. A stun gun was found in the glove compartment. The appellant denied the stun gun was his and stated that his passenger had placed it in the glove compartment when she got into the car. She would take it with her when she left the vehicle. He was convicted of possession of a weapon designed or adapted for the discharge of electrical current for incapacitation contrary to section 5(1)(b) and Schedule 6 of the Firearms Act 1968. On appeal by way of case stated, it was submitted on behalf of the appellant that there was insufficient evidence that he had exercised words or actions revealing such power or control of the stun gun as could fairly amount to possession of it. The magistrates’ must have accepted that the stun gun belonged to the appellant’s passenger and as there was no forensic link between him and the stun gun, it could not be said that he was in possession of it. In dismissing the appeal, the court observed that the offence in section 5(1)(b) is one of strict liability. No mens rea is required except in so far as it is necessary to establish that the defendant was in possession of the weapon. Parliament intended to impose a draconian prohibition on the possession of firearms for the obvious social purpose of controlling dangerous weapons. Citing Warner v Metropolitan Police Commissioner [1969] 2 A.C. 256 the court held that, as the Magistrates were advised, there is no need for the prosecution to prove a conscious decision to be the possessor. What is required are words or actions revealing power or control, even if only for a very short period, such as fairly amount to possession; the prosecution must prove that an accused was knowingly in control of something in circumstances in which he was assenting to be in control of it. Upholding the appellant’s conviction, the court accepted that mere knowledge of the existence and presence of the stun gun would not by itself establish possession on the part of the appellant. The Magistrates did not proceed on that basis. Here there was more than mere knowledge; there was at least a degree of control on the facts as expressly found by them: the presence, to the appellant’s knowledge, of the stun gun in the glove box of his car which he was driving when stopped by the police.

The claimant was 15 and awaiting trial at Bromley Youth Court in respect of charges of theft and breach of a criminal behaviour order. He pleaded guilty to possession of cannabis and not guilty to the charges of theft and breach of a criminal behaviour order. The District Judge was provided with a Preparation for Effective Trial (“PET”) form. On the form the claimant ‘s solicitor identified the disputed issues of fact, namely the claimant was not the company of another boy, the police officers being mistaken in their recognition of him, and the claimant was not present at the time of the theft, the identification of him by the complainant being disputed. The solicitor also indicated that there was a psychological report which indicated that the claimant had learning difficulties and recommended the appointment of an intermediary for the effective participation of the claimant in the proceedings. The District Judge ordered any intermediary report to be served by 12 November 2019. On 29 November 2019 the case was listed for a further case management hearing before District Judge (Magistrates’ Courts) Hammond. She was not the judge who had conducted the first hearing. She had the psychological report to which reference had been made on the PET form. She also had a report from an intermediary. The District Judge set a trial date: 8 January 2020. The claimant through his solicitor had applied in writing for the appointment of an intermediary to support the claimant throughout the trial. After oral argument the District Judge refused the application.

The District Judge identified seven factors as relevant to her decision whether to appoint an intermediary. First, she observed that the Youth Court is a specialist jurisdiction well-accustomed to dealing with vulnerable young people. She considered that the recommendations in relation to questioning of the claimant were familiar in that jurisdiction and were not unusual or technical in nature. Second, she referred to Rashid [2017] EWCA Crim 2 as authority for the proposition that the bar of the appointment of an intermediary is a high one. She said that the court could adapt its processes to allow the claimant ‘s participation in the proceedings. Third, she was able to make and did make directions to facilitate the recommendations of the intermediary. Fourth, a ground rules hearing on the morning of trial would ensure that the recommendations were followed. Fifth, the claimant had appeared in court on four previous occasions. In April 2019 he had been convicted after a trial. He had given evidence. He had not been assisted by an intermediary. There had been no appeal against the safety of that conviction. Sixth, the prepared statement provided to the police during the interview demonstrated that he had sufficient understanding of the issues and an ability to provide instructions to solicitors to allow him to conduct his case. Finally, the case was characterised as a “lawyers only” case. Given the nature of the evidence, his participation would be very limited. Were he to give evidence, it would simply be to say that he was not there. The District Judge stated that she would not draw an adverse inference were the claimant not to give evidence.

The directions given by the District Judge were as follows:

(a) Ground rules hearing 10.00 a.m. on morning of trial.
(b) Claimant to be permitted to have suitable adult of his choice to sit alongside him at court at all times and to provide props for the claimant to handle during the trial as required.
(c) Both advocates at trial to be experienced Youth Court advocates and to undertake to the court that they are familiar with the relevant Advocates’ Toolkit.
(d) A ten-minute break to be allowed for every hour of court sitting (as a minimum).
(e) Defence solicitors to provide prop cards as recommended by the intermediary.

Delivering the judgment of the Divisional Court, Dame Victoria Sharp P recognised that there is no statutory basis upon which an intermediary can be appointed to assist a defendant. Section 33BA of the Youth Justice and Criminal Evidence Act 1999 has yet to be brought into effect. Even when it does come into effect, this legislates only for “a direction that provides for any examination of the accused to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”). It does not extend the function of an intermediary beyond the defendant giving evidence.
However, her ladyship held that it was not in doubt that a court, including a Youth Court, can appoint an intermediary to assist a defendant as part of its inherent jurisdiction. No further authority for this proposition was needed than the current iteration of the Criminal Practice Directions: 1A.3. Paragraphs 3F.24-26 deal specifically with intermediaries for defendants under the age of 18. In CPD 3F.25 it is stated that there is no presumption that a defendant under the age of 18 will be assisted by an intermediary at court. Rather, “the decision should be made on an individual basis in the context of the circumstances of the particular case.”

Her ladyship observed that the most recent case in which there has been consideration of the way a court should approach the appointment of an intermediary is Thomas [2020] EWCA Crim 117, in which Fulford LJ reviewed the relevant authorities. His lordship in that case stated:

“The experience of the courts as reflected in the Practice Direction is, therefore, that there will be cases when the needs of the defendant and the circumstances of the trial will be such that an intermediary will be required for the entire trial, whilst in others, notwithstanding the defendant’s difficulties, a fair trial can be secured without the appointment of an intermediary for any stage of the proceedings. There are of course other variations coming somewhere between these two extremes. An intermediary may only be necessary for a particular part or for particular parts of the trial process, such as the defendant’s evidence.

As this court observed in R v Grant Murray [2017] EWCA Crim 1228, at paragraph 225, there have been very significant improvements in recent years to ensure vulnerable defendants participate effectively. These include “the provision of intermediaries for defendants when necessary” (paragraph 225).

As set out above, in the Practice Direction it is observed that the appointment of an intermediary for the defendant’s evidence will be a rare occurrence and that it will be exceptionally rare for a whole trial order to be made. That projection as to frequency serves as an important reminder to judges that intermediaries are not to be appointed on a “just-in-case” basis or because the report by the intermediary, the psychologist or the psychiatrist has failed to provide the judge with a proper analysis of a vulnerable defendant’s needs in the context of the particular circumstances of the trial to come. These are fact-sensitive decisions that call for not only an assessment of the relevant circumstances of the defendant, but also the circumstances of the particular trial. Put otherwise, any difficulty experienced by the defendant must be considered in the context of the actual proceedings which he or she faces.

Criminal cases vary infinitely in factual complexity, legal and procedural difficulty, and length. Intermediaries should not be appointed as a matter of routine trial management, but instead because there are compelling reasons for taking this step, it being clear that all other adaptations to the trial process will not sufficiently meet the defendant’s needs to ensure he or she can effectively participate in the trial. The assessment in the Practice Direction as to the number of instances when this is likely to occur, albeit an important reminder to the judge to apply the most careful scrutiny to these applications, cannot derogate from the need to appoint an intermediary as identified by the Lord Chief Justice in Grant Murray “when necessary”.

It follows that these applications need to be addressed carefully, with sensitivity and with caution to ensure the defendant’s effective participation by whatever adaptation of the usual arrangements is required. The recommendation by one or more experts that an intermediary should be appointed is not determinative of this issue. This is a question for the judge to resolve, who is best placed to understand what is required in order to ensure the accused is fairly tried….”

Her ladyship stated that in most cases a fair trial will be achieved by the legal representation provided to the defendant and by appropriate management of the trial process by the judge. Orders for an intermediary for the duration of the trial will therefore be rare.

The Divisional Court observed that case management decisions made by the trial judge will only be interfered with in rare cases. Dame Victoria Sharp P stated that the Youth Court is accustomed to dealing with vulnerable young people with complex needs since very many of those who appear in the Youth Court fit that description. However, that does not mean that the judge in the Youth Court cannot be assisted by another professional such as an intermediary if the needs of the individual require such assistance. As was emphasised in Thomas, the circumstances of the individual must be assessed. In stating that the intermediary’s recommendations as to the nature of the questioning appropriate for the claimant were familiar to her, the District Judge did not address the evidence that, even with appropriate questioning, the claimant would find it difficult to cope with the trial process. More important, the District Judge did not explain how the court would be able to ensure that the claimant engaged with the trial process generally given his inability to engage and to concentrate as reported by the intermediary and the psychologist.

The court stated that most cases will involve defendants who do not require the assistance of an intermediary. Therefore, the appointment of an intermediary will be rare. It does not follow that there is a high hurdle to overcome for the appointment of an intermediary if one is necessary for the effective participation of a defendant in the trial process. The District Judge’s reference to the bar being a high one was not obviously consistent with the application of careful scrutiny to the particular circumstances of the claimant in order to decide whether an intermediary was necessary. Her assertion that the court could adapt its processes to enable the claimant’s effective participation does not explain what adaptation would occur so as to ensure that the claimant concentrated on and engaged with the trial as it progressed.

In many cases the fact that a defendant has given an account to the police when interviewed will be good evidence of his ability to participate in the trial process. It will demonstrate that he understands the allegation made against him and that he can develop his account when questioned by the police. A coherent account will suggest an ability to engage with a process akin to a trial. In this case the claimant provided a prepared statement. It was presented by his solicitor. As is obvious from the language of the statement, the wording of the statement was hers. What the prepared statement showed is that the claimant was able to give basic instructions in relation to the allegations. However it did not demonstrate that he could engage satisfactorily in the trial process. The District Judge concluded that the fact of the prepared statement was evidence that the claimant could provide sufficient instructions to enable his solicitors to conduct his case. That may be so although we note that the prepared statement was very limited in its ambit. Absent consideration of the other relevant evidence, it did not show an ability on the part of the claimant to engage with the trial process as a whole.

The District Judge described the proceedings as a “lawyers only” case. The prosecution case consisted of witnesses purporting to identify the claimant. His case was that they are mistaken. On that basis the District Judge concluded that the claimant’s “participation will be very little if any”. The court took this as justifying the decision not to appoint an intermediary irrespective of the claimant’s ability to participate in a trial on the basis that there would be nothing he could contribute to the case as it progressed. The court concluded that this was tantamount to saying that it would not matter if the claimant could or did not follow the proceedings. This proposition was characterised as being inconsistent with a fair trial of the claimant. In any event, whilst the court recognised the concept of a “lawyers only” case, it did not consider that it was a fair description of these proceedings. There will be cases where the factual basis of the prosecution case is agreed – potentially reduced entirely to agreed facts or admissions – with the only issue being the proper inference to be drawn from the facts. In those circumstances a judge may well be entitled to consider the appointment of an intermediary for any stage prior to the defendant giving evidence as unnecessary. In this case a lay witness and police witnesses will give evidence of identification of the claimant. The evidence is disputed. The court stated that it was impossible to say whether there would be some unexpected element in the case. It was possible that the claimant would not have to contribute directly at any point during the prosecution case. But it could not be said that this is inevitable. If he was not engaged with the proceedings, he would be unable to contribute should the need arise.

The court concluded that the District Judge’s reasoning was flawed and her decision not to appoint an intermediary was wrong. Thomas makes clear that a judge is not required to follow the recommendations of a psychologist and an intermediary however strongly expressed they may be. The judge must consider all of the circumstances of the case. But, in a case where the evidence demonstrates that the defendant lacks the capacity to participate unaided in the trial process, it is incumbent on the judge to explain how the court will enable the defendant effectively to participate in the proceedings despite that evidence. The District Judge did not do so in this case. Nor did she explain why she rejected the views of the psychologists. Those views were not mere assertions. They followed the findings of each in their assessment of the claimant. The court quashed the judge’s decision not to appoint an intermediary and referred it to the Chief Magistrate for listing and allocation of a judge at the Bromley Youth Court.

The criminal justice system in England and Wales is facing a backlog of 40,000 criminal cases, which will not be solved even if all Crown Courts are brought into service under physical distancing rules, the Criminal Bar Association has warned. The scale of the challenge to the justice system posed by the coronavirus pandemic is becoming apparent, as virtual hearings transform business in the higher civil courts but trigger alarms about the fairness of remote proceedings in the family and lower courts. Reliance on video technology is accelerating the government’s pre-existing £1bn court modernisation programme but also throwing up questions about where it is appropriate: many unrepresented claimants do not have super-fast broadband or are among those categorised as “digitally excluded”. Even before the pandemic, some criminal cases were being listed more than a year ahead due to austerity cuts in the number of allocated judges’ sitting days. With jury trials suspended, the backlog grew at 1,000 cases a month. The Justice Secretary, Robert Buckland, is considering whether to rent commercial premises – dubbed “Nightingale courts” – with space to spread out jurors, lawyers and court staff.

The full story is available here

More than 300 prosecutions for assaults on police and emergency workers were completed during the first month of lockdown, the DPP has revealed. Appearing before the Justice Select Committee, the DPP said 424 defendants had been charged in England and Wales with a total of 660 coronavirus-related offences during April.

The full story is available here

French police have ended a decades-long hunt for a fugitive accused of playing a key role in the 1994 genocide in Rwanda, arresting 84-year-old Félicien Kabuga during a dawn raid near Paris. Kabuga, who is accused of financing the killings and frequently listed as one of the world’s most wanted men, was living under a false identity in the French capital’s suburbs, local police and prosecutors said in a statement on Saturday. French officials said Kabuga had been hiding in an apartment in Asnières-Sur-Seine, north-west of Paris, aided by his children who had set up an effective system to conceal him. Kabuga is accused of creating the notorious Interahamwe militia and equipping it with the machetes used in the majority of its murders. One of Rwanda’s richest men, he also ran the equally notorious Radio Télévision Libre des Mille Collines, which incited murder.

The full story is available here