This week’s digest considers three judgments, two of the Court of Appeal (Criminal Division) and one of the Divisional Court. The first relates to memory refreshing and the whether the district judge had erred in the way in which he dealt with a request for a police officer to refresh his memory. In the second, the Court of Appeal considered the availability of the writ of venire de novo and particularly whether an application is subject to the usual rules on leave and time limits. The third case raised the issue of whether convictions under s. 2 of the Terrorism Act 2006 violated article 10 of the ECHR.
DPP v Sugden [2018] EWHC 544 (Admin)
The judgment, available here, was handed down by Kerr J on 20.3.18.
In an appeal by way of case stated, the DPP challenged the decision of the district judge not to permit a police officer to refresh his memory from a copy document recording the outcome of a breath test undertaken by the respondent. The Divisional Court held that the district judge had erred in the manner in which he dealt with the request for the police officer to refresh his memory using the copy. The correct course, subject to asking the necessary questions arising under section 139(1) of the Criminal Justice Act 2003, would have been to allow the police officer to refresh his memory and to allow the defence to explore with him in cross examination, and subsequently in submissions, the likelihood of any risk of discrepancy between the copy and the original.
The respondent was stopped by a police officer and a breath test was administered. The respondent failed the breath test. At his subsequent trial, the prosecution asked for permission for the police officer to refresh his memory from a copy of the document recording the outcome of the breath tests pursuant to section 139(1) of the Criminal Justice Act 2003. The district judge refused on the basis of the application of the ‘best evidence rule’. As a result, a submission of no case was accepted.
The first issue considered by the court was what is left of the best evidence rule. The Divisional Court accepted the validity of what is said at paragraph F1.31 of Blackstone’s Criminal Practice (2018) that the best evidence rule is ‘all but defunct’.
The court then turned to the law permitting the refreshing of a witness’s memory with reference to section 139(1) of the Criminal Justice Act 2003. The court summarised the consequence of the relevant authorities on the interpretation of the provision as follows:
- A document containing a record of relevant factual evidence is generally admissible in the ordinary way, because the content of the document is relevant to an issue in the case.
- If the document is a copy or other form of secondary evidence, it is not thereby made inadmissible. However, the absence of the original calls for an explanation if one is one is sought by the opposing party.
- If the original is not produced, the court may, not must, refuse to admit in evidence a copy or other secondary evidence and will consider the likely accuracy or otherwise of the copy or other secondary evidence.
- In criminal proceedings, the court will also consider any explanation for its absence, its probative value and any prejudicial effect on the defence (cf. section 78 of the Police and Criminal Evidence Act 1984).
- Where there is no reason to doubt that the document is a true copy of the original (e.g. where it is a straightforward photocopy of a missing original) and its content is within the knowledge of the defendant so that its accuracy can be challenged in cross-examination, there will generally be no prejudice to the defence in admitting the copy document in evidence.
- Whether or not the document or copy or other secondary evidence of its content is admitted, a party may refresh his or her memory from the document if the requirements of section 139(1) of the 2003 Act are met.
- The witness may refresh his or her memory from either the original document or from a secondary document – i.e. a copy, or other document derived from the original – if the secondary document is likely to be an accurate reflection of the content of the original, provided that the witness verified either the original or the secondary document at a time when his or her recall was better than at the time of giving oral evidence.
- Where a witness is permitted to refresh his or her memory from a document and the document is not adduced as evidence by the party relying on it, the content of that document may or may not become evidence in the case, depending on the nature and extent of cross-examination on its content.
- Whether or not the document becomes evidence in the case, the court will always consider and give appropriate weight to any discrepancy or risk of discrepancy between its content and an original or source document of which it is a copy or from which it is derived.
The district judge ought to have approached the document on the basis that it was a secondary document derived from a missing primary original source document. It was not a remote secondary document such as a paraphrase from memory long after the event.
The Divisional Court concluded that the facts of the case fell within scenario (5), above. The copy document could have been adduced as evidence from the police officer during his evidence in chief. Since the prosecution only sought to rely upon it in order to enable him to refresh his memory, the district judge ought to have applied the tests set out in section 139(1), which includes the test of verification. Had the judge done so, he would likely have acceded to the prosecution’s request. The court concluded that the district judge had erred in the manner in which he dealt with the request for the police officer to refresh his memory from the copy document and directed a retrial. The court emphasised at paragraphs 53 and 54 that:
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This judgment should not be taken either as an indication to prosecutors that a lax approach to production of original documents of this kind is to be encouraged, nor as any encouragement to defendants to seek the exclusion of memory refreshing documents on flimsy grounds, where by there is no reason to suppose that they differ from their original counterparts.
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I do not think the advent of Better Case Management and the Digital Case System makes any difference to the analysis one way or the other. The parties will very often find it unnecessary to go beyond the electronic versions of documents disclosed using that medium; but any shortcomings in transcription, formatting, the reproduction of coloured inks and the like, can be addressed in the case of a particular document whenever that proves necessary.
These points were emphasised by Sir Brian Leveson P in a short concurring judgment.
R v Stromberg [2018] EWCA Crim 561
The judgment, available here, was delivered by Lord Burnett of Maldon CJ on 22.3.18.
The Court of Appeal considered the circumstances in which a writ of venire de novo can be brought. It was held that a writ of venire de novo cannot be brought as a freestanding application, but must be made in the course of an application for leave to appeal against conviction. Such an application is therefore subject to the leave conditions set out in section 1 of the Criminal Appeal Act 1968.
David Perry QC and Katherine Hardcastle appeared on behalf of the Crown.
The applicant was convicted in 2008 of conspiracy to commit an offence outside of England and Wales contrary to section 1A of the Criminal Law Act 1977. The conspiracy concerned a planned importation of more than 300 kilos of cocaine into Europe from Venezuela. He had first appeared before the Westminster Magistrates’ Court on 5 April 2007 from where he was sent to the Crown Court at Woolwich for trial. The first hearing in the Crown Court was on 28 June 2007.
Section 4(5) of the 1977 Act requires the consent of the Attorney General to be given to any prosecution pursuant to Section 1A of that Act before the proceedings are instituted. In the applicant’s case consent was given on 30 August 2007. In 2007 it was widely understood that consent pursuant to section 4(5) validly could be given at any point prior to the effective Plea and Case Management Hearing. Thus, it was assumed that the consent in the applicant’s case was given in time. In Welsh [2015] EWCA Crim 1516, however, the Court of Appeal held that for the purpose of section 4(5), proceedings in respect of an indictable only offence are instituted at the point of sending from the magistrates’ court to the Crown Court with the consequence that the consent of the Attorney General is required before the case is sent. The effect of failing to get the consent before that point was held by the Court of Appeal to invalidate the proceedings which followed. It followed that the consent of the Attorney General in this case was not given in time.
Following his conviction in 2008, leave to appeal was refused by the single judge. In October 2017, an application was made to the Court of Appeal for a writ of venire de novo. The order sought was to set aside and annul the conviction for conspiracy to commit an offence outside England and Wales and to require a new trial. The application was not put forward as a renewed application for leave to appeal. Such an application would have been more than 8 years out of time. Rather, it was said that it was a free-standing application to which the time limits in the 1968 Act did not apply. The Criminal Appeal Office took the view that a free-standing application of this kind could not be made and that any application in relation to the outcome of a trial on indictment required leave to appeal. In consequence the Registrar referred the applicant’s application to the full court on the basis that it was a renewed application for leave to appeal albeit not on the same grounds as had been considered by the Single Judge.
The Lord Chief Justice held that the Court of Appeal Criminal Division is entirely a creature of statute. The only statutory route by which an individual can come before the court is by way of an application for leave to appeal. It may be that the applicant’s trial was null and void; that is a matter for the Court of Appeal Criminal Division to determine in the context of an appeal within the statutory framework.
The jurisdiction of the Court of Appeal Criminal Division with which the court was concerned is to hear appeals against conviction. It was observed that this is a single jurisdiction created by statute. It is exercised when a person applies to the court for leave to appeal. Once the application has been made and leave has been granted, the court will consider whether to allow the appeal or to uphold the conviction. It may determine that it cannot uphold the conviction because the conviction is null and void in the sense that the trial was invalid for some reason. The court then may order the issue of a writ of venire de novo. It is not then exercising some separate jurisdiction; rather it is dealing with the position by way of a particular remedy. The language of Section 53(2)(d) of the Senior Courts Act 1981 is the language of remedy. It refers to the jurisdiction to order the issue of the writ. It does not speak of a jurisdiction to apply for the issue of the writ.
The Court of Appeal concluded that an application for an order to issue a writ of venire de novo cannot be made as a free-standing application. The issue of such a writ is a remedy available to the court upon an appeal against conviction, subject to the ordinary rules relating to time limits and leave.
R v Ali [2018] EWCA Crim 547
The judgment, available here, was handed down by Treacy LJ on 20.3.18.
The Court of Appeal considered whether the judge’s direction to the jury as to the meaning of ‘acts of terrorism’ and other terms in section 2 of the Terrorism Act 2006 had adequately protected the defendant’s rights enshrined in Article 10 of the European Convention on Human Rights. The Court of Appeal rejected the defendant’s reliance upon Faraz [2012] EWCA Crim 2820 on the basis that it related to the prosecution of a bookseller and involved different dissemination, different material and different potential readership. The defendant’s conviction did not violate his Article 10 rights.
The defendant was convicted of a number of terrorism offences, one of which related to the dissemination of two videos showing executions committed by IS fighters in Syria. A third video was said to encourage others to kill enemies of IS. The appellant denied that the videos were terrorist publications, or that he had the necessary state of mind when sending them. He denied knowing what was on the two execution videos and had seen only part of the third video, which he had distributed to raise awareness of the situation in Syria.
When summing up the judge directed the jury that fighting for IS had been declared by Parliament to be an act of terrorism. He explained that the prosecution was put on the basis videos were inciting the commission of acts of terrorism. The judge further clarified that it was not a crime to support IS, but that it was a crime to do something illegal to further its cause. The defendant was convicted.
It was submitted on behalf of the defendant that the judge in his summing up had failed to read down the section 2 dissemination offence pursuant to section 3 of the Human Rights Act 1998 as applied in Faraz [2012] EWCA Crim 2820. The judge should have directed the jury to read down the offence as follows:
- ‘acts of terrorism’ means ‘criminal offences’ (s.2(1));
- ‘with a view to’ means ‘with intent to’ (s.2(2)(f));
- ‘some or all’ (s.2(3)) and ‘one or more’ (s2.(6)) means ‘a significant proportion of those who read the publication’;
- ‘likely’ means ‘probable’ (s.2(3)); and
- ‘indirect encouragement’ is in relation to publications the ‘necessary implication’ of which is the encouragement of terrorism (s.2(3)).
The Court of Appeal rejected this submission on the basis that Faraz concerned a wholly different set of facts, namely the prosecution of a bookseller, where the Article 10 issue was especially acute. The Court of Appeal in Faraz was not purporting to prescribe a form of words that had to be used in every case.
In terms of the whether ‘acts of terrorism’ should be defined so as to mean ‘criminal offences’ the Court of Appeal observed that the definition of terrorism in section 1 of the Terrorism Act 2000 is imported into the 2006 Act. The Article 10 right guaranteeing freedom of expression is not an absolute right, but is qualified by Article 10(2) which provides that ‘the exercise of the right may be subject to such restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime’. The court concluded that it was clearly a legitimate objective to criminalise conduct which intentionally or recklessly encourages others to commit acts of terrorism, including acts of violence on behalf of proscribed organisations.
The terms of section 2 do not prevent a person such as the appellant from holding offensive views or personally supporting a terrorist cause or communicating the fact that he supports such a cause. It was held that section 2 prohibits is the intentional or reckless dissemination of a terrorist publication where the effect of an offender’s conduct is a direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism. The court concluded that the aim of section 2 is clearly lawful, proportionate and necessary, but it was necessary to examine whether, in summing up, the judge adequately protected the appellant’s rights of expression so that he was not in danger of being convicted for conduct which fell short of the statute and represented a legitimate exercise of his rights. In his summing up the judge made plain that the basis upon which the prosecution was put was that the videos were calls for others to take up arms in support of IS and that thus they were a call to commit acts of terrorism.
The court was unpersuaded that there was, as asserted, a failure adequately to take account of the appellant’s Article 10 rights. None of the other points raised as to a reading down of section 2 therefore had any force. It was held that ‘likely’ in section 2(3) is an ordinary, comprehensible word; replacing it with ‘probable’ would not have assisted the jury further. ‘Indirect encouragement’ in s.2(3)(a) does not, in the court’s view, need to be replaced by ‘necessary implication’, a phrase which is arguably less clear.
As to ‘some or all’ in section 2(3) and ‘one or more’ in section 2(6) the court did not think that in the circumstances of this case where the dissemination had been to two individuals, that any further explanation was required. Finally, the suggestion that ‘with a view to’ should have been explained as meaning ‘with intent to’ overlooks both the fact that the suggested phrase provides no meaningful additional explanation and the fact that in any event, the Crown was relying on section 2(2)(d), not section 2(2)(f).
For these reasons, the Court of Appeal concluded that the defendant’s conviction did not violate Article 10 of the ECHR.
Solicitor cleared of forcing daughter to undergo FGM
A solicitor, accused of beating his children and arranging FGM on his daughter when she was nine, was cleared at the conclusion of his trial at the Old Bailey. During an interview in July last year, the daughter said her father subjected her to the practice of arranging someone to come to the family home to cut her.
The full piece can be read here.
Hospital chaplain loses discrimination case against Church of England
A gay clergyman was prevented by the Church of England from taking up a job as a hospital chaplain. The Court of Appeal rejected the challenge, holding that the church had applied its “sincerely held beliefs expressly permitted by … the Equality Act”.
The full piece can be read here.
Shoreham air crash pilot to be charged with manslaughter
The pilot, whose plane caused the death of 11 men, has been charged with manslaughter by gross negligence. Andrew Hill also faces charges of endangerment of an aircraft under air navigation laws.
The full piece can be read here.
Poorest are priced out of justice by legal aid
According to a report commissioned by the Law Society, the poorest families in England are being denied legal aid because they cannot afford the contributions they are required to make.
The report is entitled “Priced out of Justice?” and is available here.
The full comment-piece can be read here.
