Weekly Digest: 28 May 2019

The appellant was arrested on 14 May 2018 and found in possession of a plastic Kinder egg containing 25 wraps of powder suspected to be heroin. He had been approaching a co-accused’s flat, where the police were conducting a search, when he attempted to make off on foot. He was detained after a struggle. He was found with a Kinder egg, £320 in cash and three mobile phones. A field test for heroin was positive. In interview he said that he was homeless and that the drugs were all for his own use; he denied selling them. He eventually pleaded guilty at the pre-trial preparation hearing on the basis that he was a runner for a drugs line. He had an extensive criminal record, albeit no conviction for drugs supply, and was in breach of a 12-month suspended sentence for burglary. However, subsequent forensic analysis confirmed that the powder was not heroin at all but a mixture of paracetamol and caffeine. The appellant’s solicitors learned of this after he had pleaded guilty and been sentenced. The CPS agreed that the charge to which the appellant had pleaded guilty was clearly not made out, and that he would want to appeal against his conviction. The Court of Appeal duly quashed the conviction.

However, the prosecution contended that the Court should exercise its power under section 3A of the Criminal Appeal Act 1968 to substitute, for the appellant’s conviction for possession with intent to supply offence, a conviction for attempting to possess heroin with intent to supply. The appellant did not contest this application. The Court of Appeal found that the appellant’s plea of guilty to the full offence clearly indicated an admission of facts which proved him guilty of the offence of attempt, and so the requirements of section 3A were made out. The Court duly substituted the offence of attempting to possess a quantity of heroin with intent to supply another, contrary to section 1(1) of the Criminal Attempts Act 1981.

The Court then considered sentencing. Counsel for the appellant submitted that the sentence for the substituted offence should be less than the sentence imposed for the full offence. The prosecution realistically conceded this point, and agreed that he should be sentenced at or close to the starting point for a category 3 ‘lesser role’ in the relevant Sentencing Guideline, namely 3 years’ custody. The Court allowed the appeal and substituted, with 25% credit for plea, 27 months’ imprisonment, activating the suspended sentence of 12 months to be served consecutively and in full.

The first two grounds of appeal concerned the judge’s character directions. It was submitted that the appellant was entitled to a full good character direction containing both the credibility limb and propensity limb, which he had not received, and that the character evidence of the two witnesses called by the appellant was wrongly diluted by the trial judge’s observations that they could not speak about what had happened in private.

The Court accepted these submissions. Furthermore, it held that the trial judge should have clearly conveyed to the jury five essential elements in her direction: “(1) that good character is not a defence to a charge, but (2) that the jury should take the appellant’s good character into account in his favour in two ways, those being (3) that good character supports his credibility and should therefore be taken into account when deciding whether to believe his evidence, and (4) that his good character may mean he is less likely to have committed the alleged offence, (5) it being for the jury to decide what weight they give to the good character, taking into account all they have heard about the appellant.”

The third ground addressed the direction as to cross-admissibility of evidence between the three complainants. It was submitted that it was unclear if the judge was directing the jury as to cross-admissibility on the grounds of a relevant propensity, or on the basis of the unlikelihood of three complainants each making false allegations, or both. On the facts of this case, the Court followed Freeman, Crawford [2008] EWCA Crim 1863 in holding that evidence in relation to one count of an indictment may be admissible as bad character evidence in relation to another count or counts if it meets any of the criteria in section 101(1) of CJA 2003.

The fourth ground complained that counsel for the appellant was wrongly prevented from cross-examining one of the prosecution’s key witnesses. The Court did not find anything in this ground which cast doubt on the safety of the conviction. The appellant’s counsel was not prevented from making the points he sought to make.

Finally, the fifth ground of appeal challenged the failure of the judge to give a direction to the jury as the appellant’s clothing on last day of trial. The day before, the jury had returned a verdict on three of the counts and so the defendant had been taken into custody. He did not have a suit at prison and so attended court the next day in his prison tracksuit. It was submitted that on its own this would not render the conviction unsafe, but in combination with the other grounds of appeal it was an indication of an approach taken by the judge which was generally unfavourable to the appellant. The Court held that in the absence of any agreement between prosecution and defence it was up to the trial judge’s discretion how best to deal with the situation. It could not be said that she was wrong to conclude that the best course of action was to say nothing at all.

Nevertheless, the Court held that the deficiencies in summing up, when combined with fresh evidence received by the court pursuant to section 23 of the Criminal Appeals Act 1968, led to the conclusion that the convictions were unsafe. The Court also stressed the desirability of a judge providing the jury with written directions, about which counsel have had an opportunity to make submissions before they are given to the jury.

The appellant was convicted in June 2017 of indecent assault. The events in question occurred in 1996 when he was 16 years old. His victim was four years old at the time. The appellant’s half-brother was in a relationship with the victim’s mother and the appellant regularly acted as a babysitter for the victim and her eight-year-old sister. The evidence at trial centred on the victim’s account, given in 1996, of the appellant’s actions. The victim had told his mother in the car that the appellant made the victim touch him indecently. In a subsequent interview with the police, the victim made no allegation of sexual abuse but, immediately afterwards, in a conversation with his mother and in the presence of two policemen, stated that the appellant had touched the victim indecently.

The appellant was interviewed and denied any wrongdoing. The victim’s sister gave a further inconsistent account at the time of the incident. The police told the victim’s mother that the case would not be going to court. Subsequently, in 2008, the victim told a schoolfriend of his about the incident. In 15 March 2015, aged 22 years old, he visited his local police station and asked for the investigation to be reopened. The appellant continued to robustly deny that he had sexually abused the victim, but was convicted by a jury.

On appeal against conviction, new counsel for the appellant submitted that there was a core failing by the appellant’s trial counsel in failing to cross-examine the victim on the difference between his two inconsistent accounts. This argument rested on the suggestion of incompetence of trial counsel. However, the Court held that it was the responsibility of the advocate to make forensic and tactical decisions; it was not incompetent on the part of the trial counsel to open his cross-examination of the victim with the observation that it was accepted that he might have been abused by someone. That stance did not undermine the safety of the conviction. Moreover, there was an “air of unreality” about questioning a 24-year-old man about the detail of a conversation that he had had 20 years beforehand and that he accepted he could not remember having.

On the appeal against sentence, the Court reminded itself that the proper approach to sentencing for historic sexual offences were authoritatively reviewed in R v Forbes [2016] EWCA Crim 1388. In sentencing an adult for an offence committed when he was a child the court should have regard to the current adult guideline for the broadly equivalent modern offence, adjust it to reflect any lower maximum sentence available, and remember that it is dealing with the culpability of a young person. In this case, the Court considered that the trial judge failed to attach sufficient weight to the fact that the maximum available sentence for the offence for which the appellant was convicted was 10 years’ imprisonment, not life imprisonment, and that the culpability in this case was that of a 16-year-old boy whose single offence was the result of teenage exploration. The Court quashed the sentence of six-and-a-half years’ imprisonment and substituted one of three years.

In November 2017 the appellant was acquitted of two counts of rape but convicted of perverting the course of justice (“count 3”). He was sentenced to a term of 8 months’ imprisonment along with a restraining order prohibiting contact with the complainant, the appellant’s wife. The basis of count 3 was that soon after his release on bail he sent text messages to various members of the complainant’s family and friends. The prosecution argued that he had attempted to use these to put pressure on the complainant. The trial judge directed the jury to ask themselves, first, whether they were they sure the appellant sent the text messages; second, whether they were sure the messages had a tendency to bring the criminal prosecution for rape to an end; and, third, whether they were sure the appellant intended these messages to bring the criminal prosecution for rape to an end. If all three questions were answered yes, then they should convict.

The appellant, relying on R v Kellett [1976] QB 372, appealed on the ground that the trial judge should have directed the jury that if they concluded the appellant intended to bring the prosecution to an end, but that he genuinely believed the rape allegations were false, then the jury should consider the propriety of the means adopted by the appellant to achieve his end.

The Court of Appeal allowed the appeal. The jury needed to have been directed that if what the appellant said was true or might be true as to his motivation, then he could not be guilty of the offence unless the jury were sure that the means he used were unlawful and improper. The conviction on count 3 was unsafe and was quashed. The case was remitted to the Crown Court for consideration as to whether the restraining order should continue.

The initial judicial review claim argued that the assessment by the CPS that there was insufficient evidence to provide a realistic prospect of conviction was flawed, and that it was wrong to say the evidence of the appellant was the “sole” evidence against the defendants. Permission was refused since the judge could find no arguable basis for saying that the decision to discontinue the prosecution was unreasonable. The judge at the oral hearing of his renewed application reached the same decision, adding that whilst the CPS had “expressed itself badly in stating that [the appellant’s] evidence was the sole evidence against the interested parties” it was nevertheless central evidence.

The Court held that the decision by the CPS to discontinue the criminal proceedings was a criminal cause or matter. Since the decision in ex parte Woodhall (1888) 20 QBD 832 it was necessary to have regard to the underlying subject matter of the proceedings in question. This approach had recently been endorsed by the Supreme Court in Belhaj v DPP [2018] UKSC 33: “judicial review as such cannot be regarded as inherently civil proceedings. It may or not may not be, depending on the subject matter”. The Court in the instant case held that although Belhaj concerned section 6 of the 1981 Act, the reasoning of the majority was directly founded upon the phrase “criminal cause or matter” with regard to routes of appeal. The underlying matter in this case was clearly a criminal cause or matter. As a result, by reason of section 18(1) of the 1981 Act no route of appeal lay to the Court of Appeal.

The Court also added some wider observations. Where the decision of the High Court is in a criminal cause or matter the only route to appeal is, with leave, to the Supreme Court and in circumstances where a point of law of general public importance must be certified. With that in mind, in modern times “it is not at all easy to see why judicial review cases involving criminal causes or matters should be treated in terms of appeal so much more restrictively than the general body of civil cases”.

The government is facing the prospect of being sued by campaigners for EU citizens in the UK and British nationals abroad who were denied a vote in the European parliament elections.

The full piece can be found here.