This week’s Digest includes seven judgments of the Court of Appeal (Criminal Division). AD considered the Court of Appeal’s jurisdiction to make a Criminal Behaviour Order in substitution of the sentence originally imposed; in Thames Water Limited, the appellant sought to challenge a £2m fine for a breach of environmental regulations; Re Soni was a case in which a wasted costs order was challenged; in L the appellant sought to challenge his conviction and sentence; the principle issue in Alstom Network UK Limited was whether a trial of a company was rendered unfair by the absence from court of that company’s directing mind and will; PR considered whether a stay of proceedings should have been granted where evidence the defendant alleged was crucial to his defence was accidentally destroyed; finally, in Whittle, the issue was whether a minimum term for a life sentence imposed for murder was manifestly excessive.
R v AD [2019] EWCA Crim 1339
The judgment, available here, was handed down on 26.07.19 by Spencer J.
A restraining order was quashed for being too wide in the class of individual it attempted to identify. A Criminal Behaviour Order imposed in substitution, which the Court had power to make pursuant to its jurisdiction under s. 11(3) of the Criminal Appeal Act 1968. The order was for all intends and purposes an order of the Crown Court and thus the appropriate venue for any future application in relation to the order was the Crown Court.
The applicant (AD) was sentenced for three offences of administering a poison or noxious substance so as to endanger life, contrary to s. 23 of the Offences Against the Person Act 1861 and for one count of child cruelty, contrary to s. 1(1) of the Children and Young Person’s Act 1933. AD had administered a number of substances to her son that had had adverse effects on his health. She was diagnosed with what is sometimes known as Munchausen’s by Proxy (now properly Factitious Disorder/Factitious Disorder Induced on Another). The judge imposed a concurrent extended sentence for the four offences of 8 years, comprising of a custodial term of 5 years and an extension period of 3 years under a section 45A Mental Health Act 1983 “hybrid order”, which is to say a custodial sentence coupled with hospital and limitation directions. AD was also made the subject of a restraining order under s. 5 of the Protection from Harassment Act 1997 by which the applicant was prevented from unsupervised contact or work with “any child under the age of 16”. When the appeal was lodged, the only issue was whether the judge had been right to pass an extended sentence. However, issues had arisen during the appeal process as to the legality of the restraining order and whether a Criminal Behaviour Order (“CBO”) could and should be substituted.
The challenge to the extended sentence. This failed; the sentencing judge had been fully entitled to conclude that AD was a dangerous offender; she posed and will continue to pose a risk to any child with whom she comes into contact ([33] – [34]).
The restraining order. The order was unlawful and accordingly quashed. With restraining orders there was a need to identify the subject of the order; i.e. the person to be protected (emphasised in Smith [2012] EWCA Crim 2566, [28] per Toulson LJ). The category of individual in this case was so wide as to be unlawful; s. 5 of the Harassment Act was specifically aimed at the protection of “the victim or victims of the offence”, not the world at large ([48] – [52]).
Substitution of a CBO. It was common ground that the Court had no power to remit the case to the Crown Court with a view to making a CBO ([57]). As to whether the power existed for the court to substitute a CBO for the quashed order, the Court was satisfied that it flowed from s. 11(3) of the Criminal Appeal Act 1968 on the basis that it was an order that the Crown Court, in passing sentence, had the general power to make; the fact that it did not for procedural reasons (i.e. the prosecution’s failure to make an application) did not limit the power of the Court of Appeal ([71] – [77]). A CBO in this case was appropriate and accordingly imposed ([70]). As to the final issue of the venue for any application to discharge or vary the CBO, this was the Crown Court; the order was to be entered into the Crown Court record and, for all intents and purposes, an order of the Crown Court ([79] – [82]).
R v Thames Water Utilities [2019] EWCA Crim 1344
The judgment, available here, was handed down on 26.07.19 by William Davis LJ.
A fine of £2m was imposed for a breach of environmental regulations; the appellant had recklessly caused the discharge of 82,000 litres of sewage into a brook in the Cotswolds. Given the nature of the infringement, the fine imposed was not wrong in principle or manifestly excessive.
The appellant pleaded guilty to an offence contrary to Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016 by causing a discharge in contravention of Regulation 12(1)(b) of the 2016 Regulations. That discharge was of 82,000 litres of untreated sewage, which was caused by the failure of the only operative pump at a sewage pumping station in the Cotswolds area. The discharge caused the serious pollution of a small brook. The judge imposed a fine of £2,000,000. The appellant sought to appeal against sentence on three grounds: (1) the judge did not state reasons for deciding on the sentence imposed; (2) the level of fine before credit for plea was manifestly excessive; (3) the judge drew a parallel with a case in Reading involving the appellant where the fine was £250,000 and there was no proper basis for an eightfold increase in the fine here.
The appeal was dismissed. Although the Court accepted that the judge did not engage fully in a step by step approach as required by the sentencing guidelines and the judge’s remarks failed to set out how exactly he arrived at the figure of £2 million, this did not take the appellant very far since the court’s task was to investigate whether the sentence imposed was manifestly excessive or wrong in principle ([22]). Applying the principles set out by the court in R v Thames Water Utilities Limited [2015] EWCA Crim 960, the court was satisfied that, had the judge engaged in the step by step approach as required by the guideline, he would have reached the same conclusion as he did when applying a less structured approach ([30]). This was a breach of environmental regulations committed by a very large organisation as a result of corporate recklessness; it could not be said that the fine was manifestly excessive or wrong in principle.
Re Soni (Appeal against a Wasted Costs Order) [2019] EWCA Crim 1304
The judgment, available here, was handed down on 24.07.19 by the Lord Chief Justice, Lord Burnett of Maldon. A judge had erred in making a wasted costs order against a solicitor who had made a request to the court for information on behalf of a client from her former client’s contempt of court proceedings. In making her request, the solicitor was not acting on behalf of a party to criminal proceedings, and such requests could not be regarded as initiating “criminal proceedings”.
The appellant represented a party (T) in relation to possible litigation in respect of a property owned by her former employer (W). The appellant made a request to the court on T’s behalf for information that had been produced at the contempt of court hearing of W’s owner (K), whom the appellant had previously represented in relation to a charge of fraud and money laundering. The application was based on the fact that the documents might assist in the proceedings brought by T. The judge said that T had no right to the documents sought. He treated the request as made under the r. 5.8(7) of the Criminal Procedure Rules 2015 r.5.8(7) and made a wasted costs order under s.19A. The appellant appealed.
The appeal was allowed. As a result of the definition of “legal or other representative” in s.19A, a wasted costs order could only be made against the appellant in favour of another party to the same proceedings if she was conducting litigation on behalf of a party to criminal proceedings ([35]). When the appellant made her request for documents and information from the court, the criminal prosecution of K was no longer extant. In any event, T was clearly not a party to those proceedings or the contempt proceedings. A person did not become party to the underlying proceedings simply by making a request to the court for information or documents about a case which was being or had been dealt with by that court, and the judge had correctly dealt with the appellant’s application under r. 5.8; the appellant’s client was not a “party” to the proceedings about which the request was made ([36] – [38]). A person or entity (for example, a journalist) could not initiate or become a party to proceedings merely by seeking documents or information from the court. Thus, in making her request for information, the appellant was not acting on behalf of a party to criminal proceedings, and the CPS and K were not parties to criminal proceedings to which her client was also a party. Accordingly, no order under s.19A could be made against her and would be revoked. It was therefore not necessary for the court to determine the other grounds of appeal, concerning whether the order was merited, and the quantum of the order made (£4,000).
R v L [2019] EWCA Crim 1326
The judgment, available here, was handed down on 24.07.19 by Davis LJ.
A defendant convicted of murder at the age of 15 was refused an application to adduce fresh psychiatric evidence aimed at explaining his reasons for maintaining his innocence at trial. His admission of guilt after conviction was tactical and made in order to gain sentencing advantage. An application for leave to appeal against sentence was also refused; the sentence was not manifestly excessive or wrong in principle.
The victim was stabbed outside the gates of his school by a person wearing dark clothing and a mask. Witnesses saw the assailant stab the victim several times hard. Before his death, the victim identified the applicant (L) as his attacker. L, aged 15, denied the stabbing. A pre-trial psychiatric report concluded that L did not suffer from any cognitive impairment but presented with a severe unsocialised conduct disorder. The judge left to the jury the issue of manslaughter on the basis of lack of intent to kill or cause really serious injury. L was convicted of murder by a majority verdict. A pre-sentence report indicated that L maintained his innocence and lacked genuine remorse. L then admitted that he had carried out the stabbing but denied an intent to kill, claiming that the fatal wound had been inflicted after he had tripped and stabbed the victim harder than intended. He was sentenced to be detained at Her Majesty’s pleasure with a minimum term of 14 years’ detention, which had been reduced by two years to give credit for the late admission. L sought to adduce fresh psychiatric evidence, obtained some two years after the offence. According to that evidence, his admission was not driven by an attempt to reduce his sentence but reflected his ability over time to face the reality of his actions
Appeal against conviction. L had himself made the decision to deny culpability. He had done so at a time when his solicitors had advised him that he had the choice either to plead guilty to manslaughter or deny the offence. He had made that choice after calculating what he perceived to be in his best interests. It was not acceptable that, having decided not to give evidence at trial admitting the stabbing but saying he had no intent to kill or cause really serious injury, he should then seek to revert to that option after his conviction. As a general principle, it was the defendant’s responsibility to put forward his whole case at trial and an appeal could not be used to make a second attempt following conviction. That principle applied to those under 18 as well as adults. Moreover, the sequence of events after conviction strongly suggested that the timing of his admission was tactical and made to gain sentencing advantage. It was not in the interests of justice to admit the fresh evidence and leave to appeal was accordingly refused ([46] – [52]).
Appeal against sentence. The judge had given “amply sufficient” credit for the very late admission and it was not arguable that a minimum term of 14 years’ detention was excessive ([55]).
R v Alstom Network UK Limited [2019] EWCA Crim 1318
The judgment, available here, was handed down on 23.07.19 by Gross LJ.
A company was denied leave to appeal against its conviction for conspiracy to corrupt even though two directors who had constituted its “directing mind and will” were not present at trial and did not give evidence. Their absence did not render the trial unfair, given that a company was a separate legal entity and there was no rule of law or practice which required a company’s directing mind and will to be indicted with the company or to be available at trial to give evidence.
Will Hays was instructed by the Serious Fraud Office.
The company was indicted for an offence of having conspired with some of its directors to pay bribes to public officials in Tunisia, disguised as consultancy payments. The company was said to be guilty by way of the “identification” principle via two directing minds. The issue for the jury was whether there was a conspiracy to pay bribes and, if so, whether the company’s directing mind and will (K and L; “DMW”)), were parties to that conspiracy. Neither of the directing minds gave evidence or was present at the trial. However, hearsay evidence was admitted in the form of K’s interviews with police and evidence given by L in other proceedings. The company submitted that the trial of a corporate defendant for conspiracy in the absence of the DMW was unfair because (1) the prosecution case was based on inference, not direct evidence, and that (2) the summing up had failed to direct the jury adequately as to the absence of the directing mind and will.
The applications for renewed leave were refused. Trial in absence of directing mind and will. The company’s guilt turned on the guilt of one or both DMWs. However, there was no rule of law or practice which required the DMW of a corporation to be indicted with it or to be available at trial to give evidence. A company was a separate legal entity from the person(s) constituting its DMW, and the DMW’s absence from the trial did not mean that the company itself was absent. In the instant case, the company had been fully represented at trial and had participated effectively in it. Moreover, the mere fact that not all alleged conspirators were before the court had never been a sound reason for the trial against one or some of them not proceeding. There was no justification for a different rule in the case of corporate conspirators. Even if the presence of the DMWs would have been helpful to the company, their absence fell a long way short of demonstrating that the trial was unfair and the conviction unsafe ([47] – [63]).
Jury directions and structure of the summing up. The judge had given the jury clear, detailed and emphatic directions on how they should address the absence of K and L and had repeatedly made it plain that their absence was not to be held against the company ([65] – [74]).
R v PR [2019] EWCA Crim 1225
The judgment, available here, was handed down on 12.07.19 by Fulford LJ.
The trial judge had been right to reject an application for a stay of proceedings in circumstances where evidence the appellant alleged had been crucial to his defence had been accidentally destroyed. A stay in such circumstances is not something that should be granted lightly and, in the instant case, the appellant had access to evidence enough to challenge the complainant’s evidence and the judge’s impeccable direction had countered any prejudice that may have been occasioned by the loss of evidence.
The defendant was convicted of four counts of indecency with a child contrary to s. 1(1) of the Indecency with Children Act 1960. He appealed against conviction on the basis that the trial judge had been wrong to refuse his application for the case to be stayed; the appellant said that the trial had been rendered unfair because evidence that was crucial to his defence had been destroyed by water damage and was therefore had not been available to him for this current proceedings.
The Court dismissed the appeal. It was important to bear in mind the varieties of evidence relied on by a prosecution during a trial; type, quality and quantity of evidence differed greatly between cases ([65]). In a case such as this, the question of whether the appellant could receive a fair trial when relevant material had been accidentally destroyed would depend on the particular circumstances of the case, with the focus on the nature and extent of the prejudice to the defendant ([66]). Imposing a stay in circumstances of missing records was not a step to be taken lightly, but would occur only when the trial process, including the judge’s directions, was unable adequately to deal with any prejudice caused to the defendant ([71]). In the present case the appellant had been in possession of sufficient evidence which could be used to test the reliability of the complainant’s evidence. Moreover, the judge had given an impeccable direction as to the fact that the jury needed to be aware that the loss of the material might have put the appellant at a disadvantage ([73]). The trial had as a result been fair.
R v Whittle [2019] EWCA Crim 1282
The judgment, available here, was handed down on 12.07.19 by Nicola Davies J.
A life sentence with a minimum term of 20 years’ imprisonment for an offence of murder was not manifestly excessive in circumstances where the appellant had run over a vulnerable and defenceless woman with his car after pursing her down the street.
The appellant was convicted of an offence of murder; he was sentenced to life with a minimum term of 20 years. The appellant had been staying at the victim’s house with the victim’s fiancé but had been asked to leave because of his behaviour. This led to the relationship becoming strained between the three. While the victim was withdrawing cash, the appellant drove his car parallel to the pavement. As the victim fled, the appellant pursued her, struck her with his car and ran over her body. She died as a result of her injuries in hospital. The appellant appealed against sentence relying on three matters: (1) the offending was out of character; (2) the offending was not premeditated; and (3) insufficient account was taken of the mitigation available to the appellant.
The appeal was dismissed. The court agreed with the judge that the offending had been premeditated. The seriousness of the offence and the aggravating features, e.g. the fact that the appellant had not helped the victim and had tried to prevent others helping her after she had been struck, led to the court being unable to say that the sentence imposed had been manifestly excessive. Account had been taken of the mitigating features, but they were limited and wholly insufficient to outweigh the gravity of the aggravating features ([18] – [22]).
Carl Beech: ‘VIP abuse’ accuser jailed for 18 years
Maker of false allegations of murder and child sexual abuse against public figures has been jailed for 18 years. Carl Beech, 51, from Gloucester, was sentenced for 12 counts of perverting the course of justice, one of fraud, and for several child sexual offences. Mr Justice Goss said Beech “repeatedly and maliciously told lies to the police” and showed “no remorse”. Tony Badenoch QC and Peter Ratliff appeared for the Crown.
The full piece can be read here.
Assault and self-harm hit record levels in jails in England and Wales
Assaults and incidents of self-harm in prisons in England and Wales have reached new highs, prompting fresh warnings that authorities are failing inmates. The number of self-harm incidents rose by 24% to 57,968 in the year to March, according to Ministry of Justice figures published on Thursday.
The full piece can be read here and the Ministry figures here.
Just 1.5% of all rape cases lead to charge or summons, data reveals
Only one in 65 rape cases reported to police result in suspects being summonsed or charged, a Guardian analysis of the latest crime figures has revealed.
The full piece can be read here.
Lord Reed Appointed next President of Supreme Court, alongside three new justices
Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions. Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.
The full press release can be read here.
