Weekly Digest: 25 November 2019

The appellant was convicted of manslaughter having stabbed her partner to death. She was sentenced to eight years’ imprisonment. The appellant and her partner had had a volatile relationship and there was considerable evidence to suggest the victim was, on occasion, aggressive and violent towards the appellant. On the appellant’s version of events the victim had attacked her and in an attempt to defend herself she had grabbed a knife and stabbed him twice with moderate force.

This was a case where more than one interpretation of the jury’s verdict was open to the judge and where it was clearly possible for the judge to be sure of his interpretation of the facts and not to accept the appellant’s version of events ([36]-[37]). The judge had also been entitled not to conclude that this was a case of excessive self-defence such as to fall into Category D of the sentencing guideline ([38]). There were at least three blows, including one leading to defensive injuries for the victim; the appellant had no significant injuries; and, even on her own evidence, she had had the knife for a significant period of time and the victim did not injure her beyond grabbing her hair ([40]).

However, the judge failed to reach a conclusion on category and starting point before considering the aggravating and mitigating factors, as the guideline indicates is the right approach ([48]). Complex considerations may arise in cases where more than one category is engaged. One approach may be to conduct something of an iterative exercise: if two categories are engaged, logically the appropriate sentence should be capable of being reached either from the starting point of adjusting downwards from the higher category or adjusting upwards from the lower category ([67]). It may be preferable for the sentencer to balance the competing considerations in terms of an overall culpability band, make plain the band from which he or she is starting, and then weigh aggravation and mitigation from that starting point ([69]). Here the judge seemingly approached this case on the basis that it fell into Category B because of the use of the knife and then counted the use of the knife as an aggravating factor, an error in principle ([59]-[60]).

A sentence of six years’ imprisonment would be substituted ([72]).

The appellant had spent time on remand awaiting extradition to the UK in Germany. This time on remand was not raised with the judge when the appellant was sentenced, and accordingly the judge did not specify the number of days kept in custody awaiting extradition under section 243 of the Criminal Justice Act 2003. The appellant subsequently sought the administrative crediting of that time by the Prison Service. He appealed against the dismissal of his judicial review of the Prison Service’s refusal to credit that time administratively.

The Court of Appeal dismissed the appeal. The requirement in section 243 of the Criminal Justice Act 2003 that days in detention awaiting extradition must be specified in open court was not incompatible with Article 26 of the European Arrest Warrant Framework Decision (2002/584/JHA) ([44]-[45]). Credit for the number of days spent in detention abroad cannot be given administratively ([47]). Section 242(2)(a) of the 2003 Act does not define “time remanded by court order” for the purposes of section 240ZA in a sufficiently broad manner that it can include remands in custody by both the English and German courts, allowing such remands would be automatically credited ([48]).

Further, the Secretary of State was not bound to credit the appellant with those days under the royal prerogative of mercy where there was a notable absence of evidence as to why the issue of the days spent on remand abroad was not raised by the appellant earlier and where no reasons had been giving for not appealing to the Court of Appeal (Criminal Division). The prerogative of mercy is not a simple substitute for conventional routes provided by statute, available to correct errors in the sentencing process such as occurred in this case; nor is there a requirement that the prerogative must be exercised if those routes of appeal are not pursued in cases such as this one, without any, let alone any adequate, explanation ([55]-[56]).

Finally, the failure to credit those days, leading to a longer period in detention, was not in breach of Article 5 of the European Convention on Human Rights or Article 6 of the Charter of Fundamental Rights of the European Union, where the reason the judge had not made an order crediting that time was because it had not been raised with him and the appellant could have appealed against his sentence to correct the error ([64] and [68]).

The Director of Public Prosecutions applied to the High Court under sections 54(3) and 55 of the Criminal Procedure and Investigations Act 1996 for an order quashing the defendant’s acquittal on 22 December 2015 for wounding with intent, following the defendant entering a guilty plea on 29 August 2018 to perverting the course of justice in relation to that charge. Under rule 77.7 of the Civil Procedure Rules an application for an order quashing an acquittal under section 54(3) of the 1996 Act shall not be made later than 28 days after the expiry of the period allowed for appealing or applying for permission to appeal, against the conviction for the relevant administration of justice offence; or where an appeal is made, the determination of that appeal or application for permission to appeal. In the instant case that period had expired on 24 October 2018, but the Crown had only applied to the High Court on the 21 January 2019, having only received the certificate from the trial court under section 54(2) on that date due to an adjournment for sentence.

The Divisional Court held that the time limit under rule 77.7 of the Civil Procedure Rules did not confine the jurisdiction conferred by Parliament on the High Court by section 54(3) of the 1996 Act ([35]). Neither section 54 nor section 55 of the 1996 Act imposes a limit on the time within which the jurisdiction of the High Court may be invoked, although they do provide for the trial court and the High Court to take account of any lapse of time which might have occurred ([33]-[34]). Under rules 3.1(2) and 3.10 of the Civil Procedure Rules it was open to the court to extend the time limit in rule 77.7 and to treat the application as valid despite being made out of time ([35]). Although cases such as this, which put in play the possibility that for the second time on the same facts an individual’s liberty is in jeopardy, require anxious scrutiny, here the extension sought was only for four months. It was reasonable, explicable and, more importantly, did not prejudice the defendant ([41]). The extension of time would be granted. Further, on the facts of the case it was in the interests of justice to grant the application ([42]-[45]).

Rule 7(1A) to the Prison Rules 1999 (SI 1999/728) provides that a prisoner who is subject to a deportation order in respect of which they have no extant right to appeal must not be transferred to open conditions. The claimant is a foreign national prisoner subject to a life sentence and to a deportation order which he had never challenged. He challenged rule 7(1A) on the grounds that it breached Article 14 of the European Convention on Human Rights, read with Article 5 or 8.

Scope of Article 14

The claimant had not yet served the minimum term of his life sentence and there could be no question of the deprivation of his liberty being arbitrary, and therefore unlawful, until after the expiry of that minimum term ([59]). However, it is well-established that the application of Article 14 does not require a breach of one of the other substantive rights within the ECHR ([68]). This was a positive measure the state had chosen to implement so the question was if the measure in rule 7(1A) has more than a tenuous connection with the core values protected by Article 5 and/or Article 8 ([70]). Access to facilities which are aimed at rehabilitation prior to serving the minimum term fall within the ambit of Article 5 for the purposes of Article 14 and the application of rule 7(1A) therefore triggers the protection of Article 14 read with Article 5 ([72]). However, to fall within the ambit of Article 8, it would be necessary for the claimant to identify some discrete family life or private life interest that is not necessarily curtailed by his lawful imprisonment, but which is impacted by rule 7(1A) and a better opportunity to interact with others was insufficient ([76]).

Article 14 status and justification

The court declined to decide the issue of status but considered that on principle being the subject of a deportation order, and being a prisoner with appeal rights exhausted, would be a status for the purpose of Article 14 ([90]-[91]). It would not, however, be a classification of a sensitive or suspect kind which requires particularly convincing or weighty reasons to justify making it a ground for treating people differently, nor a status which can be properly regarded as an essential aspect of an individual’s personality in the sense of making someone the person who he or she is ([92]). On those grounds rule 7(1A) has a legitimate aim to which it is rationally connected. It is legitimate for the Secretary of State to treat prisoners subject to a deportation order who have exhausted their appeal rights differently from other prisoners by not allowing them access to open conditions, because he can, as a matter of policy, legitimately favour those who are overwhelmingly more likely to resettle in a UK community after release than be removed to another state on tariff expiry. He can also legitimately take into account the risk of absconding posed by such prisoners if they are allowed in open conditions. A less intrusive measure would unacceptably compromise that aim, and rule 7(1A) will have no effect on most prisoners who have exhausted their appeal rights ([119]). There is no breach of Article 14. The claim would be dismissed.

The claimant sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, stating that the current law on assisted suicide contained in section 2(1) of the Suicide Act 1961 is incompatible with Articles 2 and 8 of the European Convention on Human Rights. The specific point the claimant sought to have determined as a preliminary issue was whether the court should hear evidence of ‘the mixed ethical, moral and social policy issues’ which have a bearing on the assessment of the proportionality of interference with the Article 8 rights.

The Divisional Court refused permission to apply for judicial review. The issue of compatibility of section 2(1) of the 1961 Act with Articles 2 and 8 ECHR has received significant judicial attention, most recently in R (Nicklinson) v Ministry of Justice [2014] UKSC 38, R (Conway) v Secretary of State for Justice [2018] EWCA 143, and R (T) v Secretary of State for Justice [2018] EWHC 2615 (Admin).

Undoubtedly the Human Rights Act 1998 has altered the relationship between the judiciary and Parliament. But this does not of itself impart or ascribe to the court expertise or legitimacy in the controversial questions of ethics and morals regarding the sanctity of life. These differences may mean that even in cases where the courts are empowered to act, they should be hesitant to do so ([38]). In the context of repeated and recent parliamentary debate, where there is an absence of significant change in societal attitude expressed through Parliament, and where the courts lack legitimacy and expertise on moral (as opposed to legal) questions, the courts are not the venue for arguments which have failed to convince Parliament ([40]). Even if there was very widespread examination of evidence in these proceedings, the court process is unlikely to provide reliable answers so as to determine this issue ([41]).

The decision of the Court of Appeal in Conway remains binding authority on this court that section 2 of the 1961 Act is proportionate with Article 8 ([48]). That court did not consider Article 2, but in Pretty v United Kingdom (2003) 35 E.H.R.R. 1, both the House of Lords and the European Court of Human Rights rejected claims that a law prohibiting assisted suicide breaches Article 2, and even if Article 2 could properly be invoked, the considerations which would need to be taken into account in any balancing exercise are the same as those applicable to Article 8 ([49]).

Following a Panorama report the International Criminal Court is considering opening a formal investigation into allegations that the UK covered up killings of civilians by UK troops in Iraq and Afghanistan.

The full piece can be read here.

The Information Commissioner invites views on her office being granted access to investigation and other associated powers under the Proceeds of Crime Act 2002 . The consultation closes on 6 December 2019.

The consultation page can be found here.

The Conservatives have said there would be a further review of prisoner release arrangements under a Conservative-majority government, which would include allowing victims and the media to apply to attend parole hearings.

The full piece can be read here.