This week’s Digest considers three judgments: one of the Court of Appeal (Criminal Division) and two of the Divisional Court In Pringle the Court of Appeal considered the safety of the appellant’s conviction for child abduction in light of the directions given to the jury, the evidence admitted and the evidence relating to the appellant’s ability to understand and interact with proceedings. In Jones v Crown Prosecution Service the Divisional Court considered whether the Crown Court had power to vary a sentence on appeal where that sentence had been imposed by the Crown Court and whether a conviction for careless driving could be founded solely on evidence of the defendant’s physical condition when driving. In R (British Broadcasting Company) v Newcastle Crown Court the Divisional Court considered the interpretation of section 9 of, and paragraph 2 of Schedule 1 to, the Police and Criminal Evidence Act 1984 which provide the power to make a production order.
R v Pringle [2019] EWCA Crim 1722
The judgment, available here, was handed down by Hamblen LJ on 17/10/19.
The Court of Appeal found that an accused’s conviction had been unsafe. He had significant communication difficulties and a report had recommended an intermediary which had been rejected by the judge. A grounds rule hearing should have taken place, he had been clearly confused by the questioning and his co-accused had been provided with an intermediary. The appellant’s conviction had been unsafe as a result of these rulings and a failure to explain the appellant’s difficulties with understanding the evidence.
C and S (both aged 13) had voluntarily absented themselves from school with two others. They had then met T and the appellant and gone to a wooded area. In doing so the appellant had been in breach of a Child Abduction Warning Notice (“CAWN”). At trial he was convicted of two counts of abducting a child, contrary to s.2(1)(b) of the Child Abduction Act 1984. He appealed against his conviction.
By playing truant, each of the complainants had moved outside of the lawful control of the school and accordingly, the charge involved “taking” a child “so as to keep” them from lawful custody. Section 3 of the 1984 Act provides “a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken”. There was evidence upon which the jury could conclude that the appellant’s actions were an effective cause of C and S accompanying him (including his being served with a CAWN, his being armed with a chisel, taking an isolated route and changing when reaching the destination) ([55] and [56]). The judge’s direction that that the appellant’s conduct need not be the sole cause, it is sufficient if it was a cause and a “more than merely peripheral” cause was in accordance with the law ([59] and [60]).The mens rea requirement was correctly addressed by the Judge’s first question which asked: “are you sure that the defendant you are considering intentionally or recklessly took the child you are considering”. There was no further mens rea requirement that needed to be addressed ([67]).
The admission of the CAWNs by the trial judge was pre-eminently a matter for them to consider and determine. It was clearly relevant background and their detail did matter given that they went directly to the deliberate acts by the appellant and the appellant’s ability to comprehend and communicate with children ([75] and [76]). The judge had appropriately directed the jury on their use ([77]).
The appellant had significant communication difficulties, including a limited ability to process verbally-presented information, an unreliable ability to process complex and leading questions, and a significantly limited ability to understand non-literal language, and a report had recommended the use of an intermediary ([80] to [82]). The judge rejected the use of an intermediary or the admission of hearsay evidence from the intermediary setting out the concerns raised in that report. Given the particular difficulties which had been identified, this is a case in which it would have been desirable to hold a ground rules hearing, to give guidance as to what form of questions would and would not be appropriate, to take a properly assessed decision about providing regular breaks and to consider seriously the other special measures requested ([101]). Having not taken any such steps it became particularly important to ensure that there was no unfairness during the conduct of the cross examination of the appellant ([102]). The appellant was clearly confused by the questioning and his co-accused had been provided with an intermediary ([103] to [105]). The directions given were confusing and question begging ([106]). The appellant’s conviction had been unsafe as a result of these rulings and a failure to explain the appellant’s difficulties with understanding the evidence ([107]). His conviction would be quashed.
Jones v Crown Prosecution Service [2019] EWHC 2826 (Admin)
The judgment, available here, was handed down by Hamblen LJ on 24/10/19.
The Divisional Court held that the Crown Court has the power under section 48 of the Senior Courts Act 1981 to confirm, reverse or vary the sentence in matters where the appeal has been unsuccessful, even where the offender was sentenced in the Crown Court on committal, and that an offence of careless driving cannot be established by solely relying upon the physical condition of a person when driving.
The appellant had been convicted of dangerous driving, failing to provide a specimen and driving without insurance in the magistrates’ court. He was committed to the Crown Court where he was sentenced. He appealed his conviction to the Crown Court who acquitted him of dangerous driving but convicted him of careless driving, failing to provide a specimen and driving without insurance. A case was stated asking two questions: (1) When the Crown Court determines an appeal against conviction, does it have the power under section 48 of the Senior Courts Act 1981 to re-determine the sentence de novo of matters where the appeal has been unsuccessful, in circumstances where another Crown Court has sentenced on those matters on a committal for sentence, heard prior to the appeal? (2) Can an offence of careless driving be established based solely upon the physical condition of a person when driving?
The Crown Court has the power under section 48 of the 1981 Act to confirm, reverse or vary the sentence in matters where the appeal has been unsuccessful, including in circumstances where another Crown Court has sentenced on those matters on a committal for sentence, heard prior to the appeal ([12] to [19]).
The reasons given by the court in R v Webster [2006] EWCA Crim 415 for holding that it is not sufficient merely to rely on the condition of the driver in order to prove dangerous driving largely also apply to careless driving. It would also be unsatisfactory for a different approach to apply to careless driving, all the more so given that the definition of both driving offences refers to the “way” or manner of driving ([24], [33]). It is not sufficient merely to rely on the condition of the driver in order to prove the offence of careless driving or of causing death by careless driving. The condition of the driver is relevant and admissible. But it does not determine whether the way in which the defendant drove was careless ([34]). The case stated made it clear that it was because a reasonably prudent driver would not have driven in the appellant’s physical condition that he was found to be driving carelessly, his conviction would accordingly be quashed ([37] to [40]).
R (British Broadcasting Company) v Newcastle Crown Court [2019] EWHC 2756 (Admin)
The judgment, available here, was handed down by Leggatt LJ on 22/10/19.
The Divisional Court held that the decision of the House of Lords in R v Derby Magistrates’ Court, ex parte B [1996] A.C. 487 remains binding authority for the proposition that a person cannot be ordered to produce material under section 97 of the Magistrates’ Courts Act 1980, and by analogy under paragraph 2 of Schedule 1 to the Police and Criminal Evidence Act 1984, unless it is likely that the material, if produced, will be immediately admissible in evidence without more.
In 2018 O was being tried on 38 charges of sexually assaulting boys and young men. In 2016 E had given an interview live on air in which he made public allegations about O two weeks prior to giving an account in a police witness statement. There were material differences between the two accounts. Before the live interview a journalist had conducted a mock off-air interview with E to find out what he would say. There was no video or audio recording made of this interview, but the journalist prepared a typed note of her questions and E’s answers. Under section 9(1) and Schedule 1 of the Police and Criminal Evidence Act 1984 the police applied for the production of this note a few days before the trial began relying on the first set of access conditions in Schedule 1 to the 1984 Act. The production order was granted and to avoid disrupting the trial the BBC complied with the order prior to their judicial review being heard. Among other things the BBC disputed that there were reasonable grounds for believing that the journalist’s note was likely to be of substantial value to the investigation or was likely to be relevant evidence; and argued that there was no power to make a production order because access to the material was not sought “for the purpose of a criminal investigation” as required by section 9(1) of the 1984 Act.
Purpose of the application
It is clear that the purpose, or at least the dominant purpose, of seeking access to the journalist’s note at that stage was to enable the CPS to consider whether the note ought to be disclosed to the defence pursuant to the prosecutor’s duty of disclosure ([24]). Although the note had not come into the prosecution’s possession previously and was not therefore required to be disclosed under the Criminal Procedure and Investigations Act 1996 that does not mean that no attempt needed to be made to obtain the material. Where the prosecutor and the police have reason to believe that a third party possesses material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the defence case it is incumbent upon them to take reasonable steps to access it, including, in an appropriate case, applying for a production order. The purposes for which the production order was sought were purposes of a criminal investigation ([28] and [29]).
Substantial value
A criminal investigation is not confined to seeking material which would assist the prosecution but embraces also the pursuit of a reasonable line of enquiry by attempting to obtain material which might assist the defence. The material was likely to be of substantial value to the investigation because it was likely either to show that E had given an account to the BBC before as well as in his live interview which was materially different from that given to the police, and thus assist the defence, or to aid the prosecution in rebutting that suggestion ([33]).
Relevant evidence
In R v Derby Magistrates’ Court, ex parte B [1996] A.C. 487 the House of Lords held that for evidence to be “material evidence” for the purpose of section 97 of the Magistrates’ Court Act 1980, the documents sought must be “immediately admissible per se and without more”. There were no grounds for distinguishing this case in relation to the interpretation of paragraph 2(a)(iv) of Schedule 1 to the 1984 Act ([40], [41], [45], [48]). That case remains binding authority for the proposition that a person cannot be ordered to produce material under section 97 of the 1980 Act, and by analogy under paragraph 2 of Schedule 1 to the 1984 Act, unless it is likely that the material, if produced, will be immediately admissible in evidence without more. It is not enough that the material will become admissible if particular events happen at the trial ([52]). The production order made was unlawful because the evidence placed before the judge disclosed no reasonable grounds for believing that the journalist’s note was likely to be immediately (rather than merely contingently) admissible in evidence at a trial ([56]).
Diplomatic Immunity review launched after Harry Dunn case
The Foreign Secretary has commissioned a review into immunity arrangements for US personnel and their families at RAF Croughton following the death of Harry Dunn.
The full piece can be read here.
Public consultation on the revision of the sentencing guidelines for terrorism offences
The Sentencing Council has launched a public consultation on proposed revisions to the sentencing guidelines to be used when sentencing terrorism offences. The revisions are a response to the legislative amendments introduced by the Counter Terrorism and Border Security Act 2019. The consultation runs from 22 October 2019 to 3 December 2019.
The full piece can be read here.
Commission on Justice in Wales Report published
The Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd, have published their report into the operation of the justice system in wales. In particular, they have recommended the full legislative devolution of justice in Wales and the formal identification of the law of Wales as distinct from the law of England.
The full report can be read here.
