This week’s Digest considers four judgments. The first is from the Supreme Court, and relates to s. 90C of the Representation of the People Act 1983. The second and third were handed down by the Court of Appeal (Criminal Division) and relate, respectively, to the availability of the defence of self-defence under s. 76 Criminal Justice and Immigration Act 2008 and the imposition of consecutive sentences where multiple deaths are caused by an instance of dangerous driving. The fourth, a Divisional Court judgment, is an appeal against an extradition order.
R v. Mackinlay and ors [2018] UKSC 42
The judgment, available here, was handed down on 25.07.18. The judgment was given by Lord Hughes.
The question certified by the Court of Appeal (Criminal Division) for consideration by the Supreme Court related to whether, under the Representation of the People Act 1983, election expenses offered at a discount or free of charge only fell to be declared as ‘election expenses’ if they had been authorised by the candidate, his election agent or some other authorised individual. The Supreme Court held that there is no room in the statutory regime for the added requirement of authorisation.
This was an appeal relating to a pre-trial ruling. The appellants face charges of knowingly making false declarations in relation to election expenses or aiding and abetting or encouraging such offences. The question of law, certified by the Court of Appeal (Criminal Division) for consideration by the Supreme Court, was as follows:
“Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in s. 90C(1)(a) of the Representation of the People Act 1983 (as amended) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?”
The Court of Appeal held that s. 90C of the Representation of the People Act 1983 (“RPA”) requires authorisation of expenses before the need for them to be declared arises.
The Supreme Court unanimously allowed the appeal, answering the certified question in the negative. The concept of the authorisation of expenses is frequently resorted to in legislation; the critical question is whether this concept also governs the notional expenditure provision in s. 90C RPA. s. 90C RPA asks, by subsections (1)(a) and (b), three questions about the notional expenditure it is considering. If the answer to all these questions is ‘yes’, then subsection (2) stipulates that the expenditure shall be treated as incurred by the candidate for the purposes of the RPA. Those questions are:
- Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value;
- Were they made use of by or on behalf of the candidate; and
- If the services had actually been paid for (i.e. were expenses actually incurred) by or on behalf of the candidate, would those expense be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the RPA)?
There is no room in these questions for an additional requirement that the provision of services must have been authorised by the candidate or his election agent or by someone authorised by either of them. The test is whether the goods, property or facilities are used by or on behalf of the candidate. This differs from the test in s. 90ZA(4) RPA for expenses actually incurred; these do require authorisation.
The plain reading of the RPA cannot be displaced by possibly inconvenient or even newly recognised consequences. The point that the candidate and election agent risk the commission of criminal offences was well made. However, the more serious offence of knowingly making false declarations requires a false state of mind. Therefore, the issue is somewhat obviated by that mens rea requirement and by the relief from sanctions provided for by s. 83 RPA.
R v. Taj [2018] EWCA Crim 1743
The judgment available here, was handed down by Sir Brian Leveson P on 24.07.18.
In this appeal, the Court considered the wording of s. 76(5) Criminal Justice and Immigration Act 2008, which provides that the defence of self-defence is not available where a mistaken belief is attributable to intoxication that was voluntarily induced. The Court held that the word ‘attributable’ extended the scope of s. 76(5) to encompass both (a) intoxication at the time of the incident and (b) a state of mind immediately and proximately consequent upon earlier drink or drug-taking.
The appellant (T) was convicted of the attempted murder of Mohammed Awain (MA) and was sentenced, pursuant to s. 226A of the Criminal Justice Act 2003, to an extended years of 19 years’ imprisonment, comprising of a custodial term of 14 years with 5 years on licence. The facts, in the words of Sir Brian Leveson P, ‘reveal[ed] a remarkable and troubling story’ ([2]). MA had broken down in his van on the Albert Embankment. T had stopped to help MA, but became convinced that he had a bomb in his van and was involved in a terrorist plot. The police were called, and it was confirmed that MA had merely broken down – T’s suspicions were groundless. Nevertheless, he returned to the scene of the incident with a tyre iron and beat MA around the head. T averred that his motive was to incapacitate MA from getting back into his van, which he still believed contained a bomb.
At trial, the defence had sought to rely on self-defence, as codified in s. 76 Criminal Justice and Immigration Act 2008 (CJIA). The defence was not left to the jury. The present appeal concerned the scope of the availability of self-defence. s. 76(4)(b) CJIA makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. However, s. 76(5) CJIA provides that a defendant cannot rely ‘on any mistaken belief attributable to intoxication that was voluntarily induced’. The judge ruled, with reference to the Oxford English Dictionary, that there was nothing in the words in s. 76(5) which limited its application to the time of an incident which constituted an offence if there is cogent evidence that the effect of the alcohol or drugs continued to render the person ‘disordered in intellect’. In the judge’s view, T could not rely on the defence as his history of drugs and alcohol abuse came within the scope of s. 76(5). T’s contention was that, as there was no suggestion of alcohol or drugs in his system at the time of the offence, he was not intoxicated and therefore should not have been deprived of the defence.
In the Court of Appeal’s view, the words ‘in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time [of the incident] and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia’ ([60]). However, that conclusion did not extend to long term mental illnesses precipitated by alcohol or drug misuse. Thus, the judge was, on their view, right to withdraw the defence on the basis of the wording of s. 76(5). In any event, he could have withdrawn the defence on the basis that, on any objective consideration of the facts, there was no reasonable foundation for T’s response in beating MA. Permission to appeal against conviction was, accordingly, refused.
Permission for leave to appeal against sentence was also briefly considered but was summarily refused on the grounds that the judge had not erred in his approach.
R v. Brown [2018] EWCA Crim 1775
The judgment, available here, was handed down by Sir Brian Leveson P on 26.07.18.
This was a reference under s. 36 of the Criminal Justice Act 1988 that a sentence of 9 years and four months for driving whilst disqualified and causing two deaths by dangerous driving was unduly lenient. The reference succeeded; the sentence was found to be unduly lenient on the basis that the judge had erred in selecting too low a starting point. The first ground of challenge, that the judge was wrong to impose concurrent sentences and should have imposed consecutive ones for the offences of causing death by dangerous driving, was rejected.
The respondent (B) pleaded guilty to two counts of causing death by dangerous driving, contrary to s. 1 of the Road Traffic Act 1988 (“RTA”), and one count of driving whilst disqualified, contrary to s. 103(1)(b) RTA and Schedule 2 of the Road Traffic Offenders Act 1998. B was sentenced to concurrent terms of 9 years’ imprisonment in respect of the two counts of causing death by dangerous driving and 4 months for driving whilst disqualified. The facts of the case were that B had driven his Ford Focus car, at speeds of upwards of 70mph in a 30mph zone, into a group of pedestrians crossing the road. Casper and Corey Platt-May, aged 2 and 6 respectively, were killed.
HM Attorney General referred the sentence to the Court of Appeal under s. 36 of the Criminal Justice Act 1988 that the sentence imposed was unduly lenient on two bases. The first was that the judge was wrong to impose concurrent terms for the counts of causing death by dangerous driving and the second that the judge selected the wrong starting point in sentencing.
Consecutive Sentences
Authority clearly established that, in similar cases where multiple deaths had been caused by dangerous driving, concurrent sentences were appropriate (see R v. Noble [2002] EWCA Crim 1713, where consecutive sentences were quashed and substituted with concurrent; see also A-G’s Ref (No 57 of 2009) [2009] EWCA Crim 2555 and R v. Jenkins [2015] EWCA Crim 105). Despite the weight of authority, the AG submitted that consecutive sentences were appropriate in this case and invited the Court to revisit the authorities. The basis of that argument was that the principle of imposing concurrent sentences for multiple deaths was inconsistent with the principle defined in AG’s Ref (Nos 60, 62 and 63 of 2009) [2009] EWCA Crim 2693 (AKA Appleby), the ratio of which was essentially that crimes which result in death should be treated more seriously.
This argument was rejected for three reasons. First, Appleby was about the level of sentencing for offences of involuntary manslaughter and the effect on sentences for manslaughter of s. 143 and Schedule 21 of the Criminal Justice Act 2003. The Court had previously had the opportunity to consider when s. 143 of the 2003 Act affected the principle of not imposing consecutive sentences for multiple deaths caused by dangerous driving and they decided it did not. Second, Appleby was concerned specifically with sentencing in cases of involuntary manslaughter and accordingly could be distinguished. Third, it was important to recognise that, in appropriate cases, if the prosecution charge offences of manslaughter and the defendant is convicted, the court has the scope to impose a longer sentence than the maximum permitted for the offence of causing death by dangerous driving.
The Correct Starting Point
The sentencing judge had identified the starting point of 12 years’ imprisonment on the two counts of causing death by dangerous driving. This was, in the Court’s view, unduly lenient. Given the gravity of the case, the starting point should have been 14 years’ imprisonment. Considering credit for guilty pela and the sentence on the third count, the appropriate term was 10 ½ years’ imprisonment.
Tifrac v. Romanian Judicial Authority [2018] EWHC 1909 (Admin)
The judgment, available here, was handed down by Mr Justice Ouseley on 25.07.18.
This was an appeal against an extradition order on the grounds that the two EAWs, pursuant to which the appellant was ordered to be extradited, were deficient such that the appellant should be discharged. The appeal was dismissed; the particulars of the EAWs were adequately supplemented by the further information received from the Romanian judicial authority and the issue of the overlapping sentences between the EAWs could be solved in Romania.
This was a rolled-up hearing of an application for permission to appeal and the appeal against the decision of a Deputy Chief Magistrate to extradite the appellant to Romania pursuant to two conviction EAWs. The appellant pursued two grounds before the Mr Justice Ouseley.
(I) The Particulars of the EAWs
That the EAWs were, regarding the particulars of the offences specified in each EAW, deficient was not disputed; the issue was whether the further information received from the requesting judicial authority could supplement the deficient EAWs or whether the lacunae were too great. In the judge’s opinion, the EAWs dealt with the main offences which generated the sentences adequately and the omission of other offences, which were dealt with in the information received, could not properly be described as a “wholesale failure”, akin to that described in M and Others v. Preliminary Investigation Tribunal of Napoli, Italy [2018] EWHC 1808 (Admin). Thus, this ground failed.
(II) Double Jeopardy
The basis for this contention was that there was an overlap between the sentence to be served under EAW 1 and the sentence to be served under EAW 2, in respect of smuggling offences. Further, there had been no indication from the requesting judicial authority that the double-counting of sentences would be removed when the sentence actually came to be served. However, as there is a procedure in Romania for aggregating or uniting sentences, which the appellant could initiate there, he could raise that point in Romania and the overlap would be stripped out. Thus, the issue was avoided.
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The full piece can be read here.
Burglaries rise while criminal charges fall
A freedom of information request by the Victoria Derbyshire show has revealed that reports of burglary rose by 6% in three years, while the number of criminal charges for the offence had fallen by 33%.
The full piece can be read here.
Renew treason laws to jail enemies of the state for life, thinktank says
A right-leaning thinktank has recommended that ancient treason laws should be renewed to allow enemies of the state to be jailed for life. A Policy Exchange report suggested individuals who betray the state should be dealt with as traitors.
The full piece can be read here.
Max Hill QC appointed new DPP
Max Hill QC, a leading criminal silk, who is currently the independent reviewer of terrorism legislation, has been appointed the new Director of Public Prosecutions. He will succeed Alison Saunders.
The official appointment can be seen here.
