Weekly Digest: 28 January 2019

Addressing the secondary issue first, the Appellate Court noted that section 58 requires the Crown Court to be informed of two things by the prosecution: (i) that it intends to appeal, and (ii) that, if the appeal is declined or dismissed, it agrees to the Defendant’s acquittal. Section 58 does not explicitly specify any mechanism for informing the court of these matters.

The Court held that section 58 did not implicitly require each of the steps to be taken orally. While this will be the procedure in the majority of cases, with judgments given ex tempore, it is no longer uncommon for judges in the Crown Court to hand judgments down or circulate them in advance. This was to be welcomed as improving the speed and efficiency of trials. With that in mind, there was no impediment to the prosecution informing the court by email under section 58. The statute should not be interpreted in a way that would spawn unnecessary hearings or require the unnecessary attendance of parties at the handing down of a ruling. Notice of appeal had been validly served and the Court had jurisdiction to hear the matter.

The main substance of the appeal centred on the correct interpretation of section 10(3) of the 1991 Act. The Respondent, a police constable, was exercising his police dog in a field on 6 June 2016 when the dog attacked and injured a runner. The Respondent was prosecuted under section 3 of the 1991 Act for being in charge of a dog dangerously out of control. At trial and in the appeal he relied on the defence provided by section 10(3), arguing that as he was the designated handler of the dog and obliged to care for and exercise the dog he came within the exemption. The prosecution argued that section 10(3) could only avail the Respondent if he was on operational duty and was using the dog during that duty.

The appellate court’s reasoning began by noting that the statutory purpose underlying the exemption was the protect dogs used by the police and other crown servants to chase down fleeing suspects or detect crime. The court then focused on the definition of “using” a dog. Under the common everyday definition found in the Shorter Oxford English Dictionary the term “using” a dog suggested an active engagement in a directed task, or in support of a person for an identifiable purpose. Millions of people take their dogs for a walk, but to say that they are using them whilst doing so would be a misuse of language.

This analysis was reinforced by the rest of the provision, which required the use to be “for a lawful purpose” and “by a constable or a person in the service of the Crown”. Both of these elements suggest a restriction on the purposes for which the dog is being used, as it must be as part of the activities of the police of other Crown body.

The appeal was allowed and the case remitted to the Crown Court for the proceedings to continue.

The Respondents had submitted at trial that their disruptive actions had been aimed at impeding traffic heading for the arms fair. The District Judge agreed and dismissed the charges on the grounds that their actions were protected under Articles 10 and 11 ECHR (Freedom of Expression and Freedom of Peaceful Assembly). He found that the action was peaceful; did not give rise to any disorder; did not involve any criminal offences; was carefully targeted; and was related to a “matter of general concern”, namely the sale of weapons. Under the proportionality test required by Articles 10 and 11 the prosecution had not proved that the defendants’ action was “unreasonable”.

On appeal the DPP argued that the Respondents’ use of the highway was unlawful, and so ECHR rights could not be engaged. Even if it was lawful, the public’s right to use the highway for free passage took priority. The District Judge also took insufficient account of the qualifications to the Convention rights set out in Article 10(2) and11(2) respectively, many of the factual reasons given in the case stated were flawed, and his conduct of the proportionality test was flawed.

The appellate court repeated the well-known principle that the right to Freedom of Expression is one of the essential foundations of a democratic society. This right goes beyond traditional ‘speech’ to encompass actions as well. Not all types of speech are equally protected. Article 10 is not a “trump card” entitling any political protestor to circumvent regulations relating to the use of highways, however, any interference with a protestor’s Article 10 rights must be shown to be proportionate.

The court held that the protest was done in exercise of Articles 10 and 11 rights and so was capable to giving rise to a “lawful excuse” under section 137. The public’s right to use the highway for the purpose of free passage could also not take automatic priority over the protestors’ ECHR rights. However, the District Judge erred in stating that the Respondents’ actions were carefully targeted and aimed only at obstructing vehicles going to the arms fair. They also completely obstructed the ability of other members of the public to go about their lawful business. Moreover, the fact that the protest lasted only around 90 minutes was because of the prompt intervention of the police. If the Respondents were exercising their lawful rights they should not have been arrested or removed. They might well have remained at the site for much longer.

The court agreed with the appellants that there was no “fair balance” struck between the rights of the individuals to protest and the general interest of the community, including the rights of other members of the public to pass along the highway. The appeal against the first to fourth Respondents was allowed, a conviction entered, and the case remitted for sentencing.

The appeal against the Fifth to Eighth Respondents was dismissed on procedural grounds. The DPP had not applied to the District Judge to state a case within the 21 day time limit set down by section 111(2) of the Magistrates’ Court Act 1980, and so the appellant court had no jurisdiction to entertain the appeals.

In March 2018 the Appellant was issued with a CPN of indefinite duration under section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) that ordered him not to enter a certain area of Reading Town Centre, attend within 100m of any McDonald’s restaurant in Reading, and not to be in a group of more than 3 individuals. The Appellant was notified of his right to appeal against the CPN within 21 days and set out the possible grounds of appeal under section 46 of the 2014 Act. He breached the conditions within five days by entering the prohibited area of Reading.

At trial an application of no case to answer was made on the basis that the prosecution had the burden of establishing that the CPN was valid, and had failed to do so. The CPN was clearly invalid because its indefinite duration, and the term preventing the Appellant from being in a group of three or more individuals wherever he might be, were unreasonable and disproportionate. The District Judge held that she had no jurisdiction to hear such a defence, that it should have been raised by way of a section 46 appeal, and that on the facts the Appellant had breached the terms of the order.

The appellant court noted that where a criminal charge is based on the breach of an underlying provision the invalidity of that provision is not necessarily a defence to the charge. A public law defence may not always be deployed in criminal proceedings. The question was whether Parliament intended the invalidity of the provision to be a defence to the criminal charge.

The court held that this was not the case. A CPN is specific to an individual and his behaviour and is carefully prescribed by section 43. There is a prior opportunity to challenge the CPN by way of a section 46 appeal. Section 43 also clearly contains an implied power for an authorised person, such as the police, to vary or discharge the CPN, which should be any person’s first port of call. If an affected person makes a request for the CPS to be varied or discharged, and is declined, then that refusal, made impliedly under section 43, can be challenged by way of judicial review within the usual time limits. The combination of the right of statutory appeal, coupled with the availability of judicial review, provided an effective means by which to challenge the CPN throughout its term. A challenge to the validity of a CPN is not open to a person at trial by way of defence.

The decision of the District Judge was upheld and the appeal dismissed. However, the court made clear the terms of the CPN in the appellant’s case were unreasonable, and that he should raise this with the Thames Valley Police and ask them to vary the CPN. If they wrongly refused to vary then judicial review would be available. Any CPN should be limited in time, and any authorised persons issuing a CPN should ensure that the prohibitions go no further than is necessary and proportionate.

He argued that MPs should be able to vote according to their personal views when the Brexit motion is debated on Tuesday, “to resolve things”, reiterating that he would have to consider his position if the government opted for a no deal withdrawal from the EU.

The full piece can be found here.

In a summary of responses to a consultation within the judiciary, master of the rolls Sir Terence Etherton and Lord Justice Coulson, deputy head of civil justice, said most civil judges expressed the ‘firm view’ that final hearings were not suitable for video hearings.

The full piece can be found here.

Family solicitors and courts may have to ‘cut corners’ and exceed time limits to prevent burnout from dealing with ‘sustained, remorseless and relentless’ pressure, the most senior family judge in England and Wales has warned.

More details can be found here.