Weekly Digest: 27 November 2017

Both claimants in these proceedings had exceeded the 21 day time limit (prescribed by s.111(2) o the Magistrates’ Courts Act 1980 (“the 1980 Act”)) within which they had to apply to the magistrates’ for a case to be stated for the opinion of the High Court. Accordingly, both applications for the statement of a case were refused. This claim was, in substance, an application for judicial review of those refusals in light of the argument that there was a discretion to extend the time prescribed under s.111(2) of the 1980 Act. Two main arguments were proffered for consideration by the court; namely:

1. the Civil Procedure Rules r.52.15 provides that time can be extended; and/or
2. 111(2) of the 1980 Act should be read down to provide the court with a discretion in particular cases to extend time in order to comply with article 6 ECHR.

Extension under the CPR

It was accepted by counsel that the relevant legislation did not provide any discretion to extend the time prescribed by s.111(2) of the 1980 Act. Further, it was uncontroversial that the relevant provisions of the Criminal Procedure Rules (“the CrimPR”) – i.e. Part 35 –  did not assist the claimants since it is explicit in the notes to Part 35.2 that there is no discretion to extend the statutory time limit.

Thus, it remained to argue that the provisions of the Civil Procedure Rules (“CPR”) preserved a discretion to extend time. The power of the High Court to deal with a case stated from a Magistrates’ Court or Crown Court is created by s.28A of the Senior Courts Act 1981 Act (“the 1981 Act”). Part 52 of the CPR addresses the exercise of the jurisdiction under s.28A of the 1981 Act. CPR r.52.2 provides parties are to comply with Practice Direction 52A to 52E. These in turn provide, at PD 52E paras 2.1-2.3, that “[t]he procedure for applying to the Crown Court or a Magistrates’ Court to have a case stated for the opinion of the High Court is set out in the Criminal Procedure Rules”. CPR r.52.15 provides for an application for the variation of a time limit.

These rules, however, clearly governed the procedure for an appeal brought under s.28A of the 1981 Act and had no application to the right of a party to apply to the Magistrates’ Court to state a case under s.111(2) of the 1980 Act. CPR r.52.15 had no application to the procedure under s.111(2) of the 1980 Act and thus time could not be extended by resort to the CPR.

Reading down s.111(2) of the 1980 Act

It was contended that s.111(2) should be read down to comply with article 6 ECHR. In exceptional cases, the application – it was submitted – of the strict time limit in s.111(2) of the 1980 had the potential to give rise to a breach of article 6, just as it did where there are appeal time limits in extradition and disciplinary appeals (see Pomiechowski v. Poland [2012] UKSC 20; [2012] 1 WLR 1604 and R (Adesina & others) v. NMC [2013] EWCA Civ. 818; [2013] 1 WLR 3156 where ‘strict’ time limits were read down to provide a discretion to extend).

This submission was rejected for five reasons. First, it was entirely proportionate to have a short and clear time limit in which to bring an appeal by way of case stated. In many instances Magistrates’ Court proceedings will be before a panel of lay justices who perform their work part time and on a voluntary basis. Second, there is no evidence that the time limit in question has given rise to any particular difficulties of the kind which have attracted judicial criticism (i.e. like those in Pomiechowski). Third, s.111 of the 1980 Act does not provide for an appeal as of right and it is open for a Magistrates’ Court to decline to state a case. The short time limit thus allows a potential appellant to know where he or she stands when considering whether to exercise other potential rights. Fourth, there is an alternative remedy in the form of appeal to the Crown Court as of right and on a full merits basis. Fifth, if time could be extended, the result would be delay, additional expense, and an incoherent procedural tangle that would not be consistent with the good and efficient administration of justice.

The respondent was a registered doctor against whom there were two allegations of misconduct. First, he had sent an email to another doctor purporting to flag 17 instances where patient safety was a concern, but he failed to provide sufficient details to identify any of the patients involved. Second, the respondent had worked as a locum GP whilst apparently on sick leave. Although these allegations were made out, the Medical Practitioners Tribunal (“MPT”), applying the test for dishonestly set out in Ghosh, found that the respondent had not been dishonest and, as such, there was no finding of misconduct made against the respondent. The GMC appealed under s.40A of the Medical Act 1983 against the determination of the tribunal. The respondent cross-appealed on the grounds that the MPT failed to consider the relevant facts and matters when applying the first limb of the Ghosh-test.

The judge felt unable to resolve any of the issues on appeal since the MPT had, in light of the recent Supreme Court decision in Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club) [2017] UKSC 67, applied the wrong test to determine whether the respondent was dishonest. The judge refused to accede to the respondent’s invitation to apply the correct test in Ivey to the findings of the MPT and uphold their finding that the respondent’s conduct was not dishonest. In his judgment, “the court should be slow to substitute its own findings of dishonesty for those of a specialist tribunal which has heard all the evidence.” (per HHJ Sycamore, para. 28, citing with approval the judgment of King J in GDC v Endictott [2014] EWHC 2280 (Admin)).

On the 27 October 2016, the appellant (aged 16) was charged with three offences, namely: (1) possession of bladed article contrary to s.139(1) and (6) of the Criminal Justice Act 1988; (2) robbery of David Pendleton, contrary to s.8(1) of the Theft Act 1968; and (3) resisting a constable in the execution of her duty, contrary to s.89(2) of the Police Act 1996. He pleaded guilty to (1) and (3). The trial in respect of (2) took place on 23 January 2017 and that was the subject of these proceedings.

At trial, the justices first heard from the victim of the robbery, Mr Pendleton, who gave evidence regarding the incident on the 30 August 2016: his laptop bag was stolen in an underpass by a man whom he described as aged between 20-26 and white. Mr Pendleton’s view of the perpetrator was obscured by the fact that they were wearing a hood and he only admitted to having sight of their nose. Second, the justices heard from PC Knowles who apprehended the appellant outside the underpass on the 31 August 2016 in possession of the weapon which was the subject of (1). The appellant then ran away from PC Knowles, who had cause to approach the appellant as he was behaving suspiciously, and resisted arrest. A subsequent search of the appellant’s home revealed the stolen laptop bag and other contents (but no laptop) in the appellant’s brother’s room.

After hearing this evidence (which – it was stressed by the Divisional Court – was the totality of the prosecution case) the appellant submitted that there was no case to answer. The case stated by the justices recorded that the appellant’s advocate pointed to the weaknesses in the prosecution case, specifically that the identification evidence was poor, that Mr Pendleton had described the robber as being white, and, further, that the circumstantial evidence amounted only to the fact that the appellant was hanging around the underpass the following day. Nevertheless, the justices dismissed the submission of no case to answer. The trial continued and the appellant did not give or call evidence. The prosecution then invited the justices to draw an adverse inference from the appellant’s silence in interview relying on s.34(2)(d) of the Criminal Justice and Public Order Act 1994. Appropriately directed by their clerk, the justices convicted.

The appellant appealed by way of case stated. In the court’s view, the issues to be determined converged on the same point, engaging Galbraith: were the justices correct in concluding that a properly directed jury could safely convict on the basis of the prosecution case taken at its highest? The answer to that question was no and accordingly the justices had been wrong to allow the case to continue.

First, the justices were not entitled to draw an adverse inference against the appellant. They failed to adopt the correct approach in drawing such an inference (prescribed in T v DPP [2007] EWHC 1793 (Admin)). Second, taking the prosecution case at its highest, on the two remaining strands of circumstantial evidence (the possession of stolen property and the similar fact evidence), the court held that no reasonable and properly directed jury would have convicted. Specifically, there remained a realistic probability that someone else had committed the robbery.

The appellant entered the UK as a fugitive in 2011. He wanted to start a new life and lived and worked in the UK for 6 years. The appellant had no dependants or relatives, except two cousins, in the UK. The issue before the District Judge was whether extradition would be a disproportionate interference with the appellant’s article 8 rights. After setting out all the relevant factors for and against extradition, the District Judge concluded that the balance fell in favour of extradition.

On appeal, the appellant contended that, as an EU citizen, he currently had right of residence in the UK. As a result of the UK’s impending exit from the European Union, the appellant might not be able to return to the UK after serving his prison sentence in the respondent country. The potential certainty that arose from this, on the appellant’s case, interfered with his rights under article 8 ECHR.

The judge accepted that there were some cases where the uncertainty resulting from Brexit would cause anguish to dependants remaining in the UK. This was not such a case as the appellant was a single man with no immediate family in the jurisdiction. The appeal was, accordingly, dismissed.

The appellant made a complaint to the respondent that GCHQ had been conducting unlawful computer network exploitation activity (i.e. computer hacking). One of the preliminary issues on which the respondent ruled concerned the proper interpretation of s.5 of the Regulation of Investigatory Powers Act 2000 (“RIPA”). There was a dispute between the appellant and GCHQ regarding the degree of specification required in a warrant, made pursuant to s.5(2) RIPA, which was required to make any “interference with property or with wireless telegraphy” lawful. In a judgment on 12 February 2016 the respondent tribunal upheld the submission of GCHQ and the Secretary of State that s.5(2) authorises him to issue warrants in general terms authorising a broad class of possible activity in respect of a broad class of possible property. This went beyond the more restrictive interpretation of the degree of specificity required which was urged by the appellant. It was this ruling on the proper interpretation of s.5 of RIPA which the appellant wished to challenge.

With no right of appeal, the appellant commenced judicial review proceedings. The Divisional Court held that the decision of the respondent tribunal was not amenable to judicial review by reason of the ouster clause that was s. 67(8) RIPA. The appellant then appealed to the Court of Appeal.

On appeal, it was contended by the appellant that the court should adopt a highly restrictive approach to the interpretation of statutory provisions which purport to oust the jurisdiction of the High Court: see Anisminic Ltd v Foreign Compensation Commission [1962] 2 AC 147 and more recently R (Cart) v. Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663. The principle of legality dictated there should be a strong presumption that, in promulgating statutes, Parliament intends to legislate for a liberal democracy subject to the rule of law, respecting human rights and other fundamental aspects of the constitution. The rule of law and the ability to have access to a court or tribunal to rule upon legal claims constitute principles of this fundamental character. If, therefore, s.67(8) of RIPA were to be construed as an effective ouster clause, it would need to be couched in terms of “determinations and purported determinations” in order to take into account the decision of Anisminic.

This submission was rejected by the court. In the judgment of Sales LJ, on its proper construction, s.67(8) did clearly oust the jurisdiction of the High Court on judicial review. This included those determinations and decisions which the respondent may have made on the basis of what might have been found by a court to have been an erroneous view of the law. This interpretation was made clear by the language used in the provision given its natural meaning as read in its legislative context. Implicit in this, according to Sales LJ, was that Parliament considered the respondent could be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints. His Lordship noted that quality of the membership of the respondent tribunal in terms of judicial expertise and independence was very high and so it was a fair inference that Parliament intended this to be the position. The respondent was a judicial body “of like standing and authority to that of the High Court” and which “operates subject to special procedures apt for the subject matter in hand” (per Dyson LJ, R (A) v Director of Establishments of the Security Service [2009] EWCA Civ 24, para. [22]).

In the early hours of 28 October 2016, Mr Mohammed smothered both his children, doused them in petrol and, in an attempt to murder his wife, set fire to his family home. He had disconnected the gas mains with the hope of causing a conflagration that would engulf all of them. The house was too heavy with fumes for the ignition and his wife was able to escape with the help of her neighbours. Mr Mohammed then fled the scene and drove to Newcastle-under-Lyme where he set fire to leaves in his car to inflict burns on himself for reasons which were not at all clear.

The starting point, given the fact that two victims were murdered, in accordance with Schedule 21 of the Criminal Justice Act 2003 paragraph 5(1)(a) and (2), was a minimum term of 30 years’ imprisonment. That there was some planning involved, there was the attempt on the mother’s life, the victims were vulnerable, and Mr Mohammed was in a position of trust in respect of all three individuals served as aggravating factors. In terms of mitigation, Mr Justice Gilbart noted that there was little. Nevertheless, Mr Mohammed’s previous good character and the recurrence of his depressive disorder led the judge conclude the appropriate minimum term for the murder of the children was 33 years. The judge, finding it difficult to apply the definitive guideline of the Sentencing Council, since this was not a sentence in isolation, imposed a concurrent determinate sentence of 10 years’ imprisonment for the attempted murder of his wife.

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