This week’s Digest considers three Court of Appeal (Criminal Division) judgments from the beginning of April; the first is an appeal against sentence imposed for murder; in the second, the appellant sought to challenge a finding of contempt and renewed applications for permission to appeal against his conviction and sentence for conducting an unlawful money lending business; finally, the issue in the third was whether sentences imposed on the Appellants for s. 18 offences were manifestly excessive. The senior courts are still currently in recess.
R v Kahlid and another [2019] EWCA Crim 701
The judgment, available here, was handed down by Lord Justice Flaux on 05.04.19.
The issue in this appeal was whether sentences of 21 and 27 years imposed on the Appellants for murder were wrong in principle or excessive. Both appeals were dismissed; the judge’s approach could not be impeached in any of the numerous ways alleged by the Appellants.
The Appellants, Mohammed Khalid (MK) and Neville Bowen (NB), were convicted of the murder of Kyle Bowen (KB). Both received life sentences, with the minimum terms under s. 269(2) of the Criminal Justice Act 2003 (“the 2003 Act”) being 21- and 27-years’ imprisonment respectively. MK and NB, armed with knives, attended premises in Hayes to sell drugs to KB and Dedan McLaughlin (DM). KB and DM initially intended to make off without paying for the drugs. DM abandoned that plan, however KB, unaware of DM’s intention, hit MK in the face. NB then produced a knife and stabbed KB multiple times. MK then then kicked and punched KB before he made off with NB. Both Appellants appealed against sentence.
NB. Two grounds of appeal were advanced on behalf of NB: (i) the judge failed to accord appropriate weight to the fact that there was an absence of an intent to kill; and (ii) erroneously discounted NB’s mental health and personal problems as personal mitigation. Both grounds were rejected. Regarding the first ground, while it was correct that lack of intention to kill and lack of premeditation are mitigating factors under paragraph 11 of Schedule 21 to the 2003 Act, whether they amount to mitigation and what weight is to be given to them depends on the circumstances of the case (at [30]; see R v Peters [2005] 2 Cr App R (S) 101, [16], per Judge LJ and Bouhaddaou [2006] EWCA Crim 3190, [20], per Phillips LJ). In all the circumstances, the judge was entitled to conclude that this provided little or no mitigation. As for the second ground, it could not be said that the judge had erred in his exercise of discretion in his approach to NB’s personal circumstances.
KM. KM advanced three grounds of appeal: (i) the six-year difference in sentence between the Appellants was insufficient to reflect KM’s much lower criminal culpability; (ii) the judge failed to give appropriate weight to KM’s previous good character; and (iii) the judge had erred in evaluating other mitigation available to KM. All grounds failed. The first ground overlooked the fact that KM had recruited NB to go with him that evening and that the murder was committed against the background of KM’s escalating drug dealing. The second ground was rejected for essentially the same reason: the judge was entitled to discount KM’s previous good character given the context of the murder. Finally, viewing the sentence in the round, the judge’s approach to the mitigation could not be criticised.
R v Gopee [2019] EWCA Crim 601
The judgment, available here, was handed down by Lord Justice Flaux on 02.04.19.
There were three issues before the Court in this case: an appeal against a finding of contempt, and renewed applications for leave to appeal against both conviction and sentence all of which related to the Appellant’s conduct of an unlawful money lending business. The finding of contempt could not be impeached; the Appellant had deliberately breached the restraint order to which he was subject. The renewed applications for leave were both rejected as being totally without merit and a loss of time order was accordingly made.
The Appellant (G), following an ex parte application made by the Financial Conduct Authority, was made the subject of a restraint order along with a number of companies under his control. As a result of the breach of that restraint order, G was held in contempt of court on two separate occasions and sentenced to a term of imprisonment. The second occasion, to which these proceedings related, he received a sentence of 15 months’ imprisonment. Following a trial at the conclusion of that investigation, G was convicted of various offence of running an unlawful money lending business. In essence, G’s company continued to lend money to consumers after the Office of Fair Trading had revoked its consumer credit licence. On conviction, G was sentenced to a total of 42 months’ imprisonment and a Serious Crime Prevention Order was also imposed. G appealed against the finding of contempt, available by way of right pursuant to s. 13 of the Administration of Justice Act 1960, and sought to renew his application for leave to appeal against both sentence and conviction.
Contempt. G raised a number of challenges to the finding of contempt. All of which were rejected on the grounds they provided no basis for a finding of contempt that was entirely justified. In the court’s view, G had deliberately and repeatedly flouted the restraint order in a sophisticated manner. Thus, the judge had been quite right to conclude that the appellant had “cocked a snook at the Court and made his own decision not to comply” ([31]).
Conviction. G raised four grounds of appeal against conviction. The first, that the judge had been wrong to admit extracts of civil judgments in which he had been told that a defence for unjust enrichment was contrary to the Consumer Credit Act 1974, was rejected; the evidence was admissible as to the correctness of what the appellant had been told and therefore his state of mind in light of his defence of due diligence. The second ground was that the judge had erred in not giving a definition of a sham to the jury. This was rejected on the basis that it was unnecessary as the borrowers were not parties to sham agreements such that any such definition would have served to confuse. The third ground, that the judge made a series of unfair interventions during the appellant’s case and the summing-up was unfairly balanced, was rejected; the judge’s conduct was proper and intended to focus the evidence on the matters which were relevant for the jury’s consideration. Finally, the fourth ground, that the judge misinterpreted the provisions of Consumer Credit Act and Financial Services and Markets Act, was found to be lacking in merit.
Sentence. The appeal against the sentence of imprisonment and the imposition of the serious crime prevention order was hopeless for the same reasons given by single judge (see [64] – [65]). A loss of time order of 56 days was also made in respect of the renewed applications for leave to appeal against conviction on the basis that they were totally without merit.
R v Mampuya and another [2019] EWCA Crim 619
The judgment, available here, was handed down by Lord Justice Simon on 02.04.19.
The issue in this appeal was whether sentences of 18 years’ imprisonment imposed on the Appellants for three offences contrary to s. 18 of the Offences Against the Person Act 1861 were manifestly excessive. The appeal was dismissed; this was a serious knife attack and, although the sentence could be described towards the top end of appropriate sentences, it was not manifestly excessive given the circumstances.
The Appellants were each convicted on three counts of wounding with intent to cause GBH contrary to s. 18 of the Offences Against the Person Act 1861. In total, each Appellant received a sentence of 18 years’ imprisonment. The convictions arose out of a violent encounter between a group of youths; the Appellants had pursued the three victims into a side street and stabbed them. The reason for the attack was the apparent offence the Appellants took at having been accused of damaging the car of one of the victims. Both Appellants advanced similar arguments, which were, essentially, that the sentence was manifestly excessive, in particular owing to a miscategorisation of the offences that constituted count 2 and 3 of the incitement.
The appeal was dismissed. The judge had been entitled to treat count 1 as the lead offence and to weight the sentence on that count to take account of the totality of offending. The judge was in a good position to assess the seriousness of the offences having presided over the trial. Importantly, this was an attack involving knives that were brought to the scene and used to stab the victims in the back, giving them no chance to defend themselves in what was described as a “a cowardly knife attack” that “might have justified an extended sentence. Had it not been for the Appellants’ relative youth” ([36]). Although the court accepted that the sentence was “stiff”, they were not persuaded that it was manifestly excessive.
Extinction Rebellion activists end protest in London
“Ten days of protests, blockades and disruption across London has come to a conclusion as Extinction Rebellion ended its action in the capital. Hundreds of activists met in Hyde Park earlier for a ‘closing ceremony’. More than 1,100 people have been arrested since campaigners first blocked traffic on 15 April. On the final day of action, protesters blocked roads, climbed on a train and glued themselves together in London’s financial district.”
The full piece can be read here.
Prison increases youth knife-crime reoffending, report says
“Prison does not work for young knife-crime offenders, and while stop and search has a short-term benefit, it risks alienating key sections of society, a police study has found. The study by the College of Policing, the government-backed body aiming to improve law enforcement, has been sent to all forces in England and Wales as they grapple with rising knife crime. It reviewed research on causes and effective strategies.”
The full piece can be read here.
Criminal Barristers prepared to walk out over fees
“Criminal barristers feeling increasingly overburdened with work but severely underpaid have told bar chiefs they have had enough and are prepared to take direct action. Nearly all of the 2,050 barristers who prosecute responded to the Criminal Bar Association’s survey on prosecution fees, the association said. When asked if they were prepared to take action – potentially up to and including no returns and days of action – 94.8% said yes. When asked if they believe the current remuneration rates for prosecution advocacy reflect the demands skill and responsibility the work involves, 99.3% said no.”
The full piece can be read here.
