This week’s edition considers one judgment from the Supreme Court and two from the Court of Appeal (Criminal Division). In Elgizouli v Secretary of State for the Home Department the Supreme Court considered whether the provision of mutual legal assistance by the Secretary of State to the United States, in respect of a person whose prosecution was sought in the US for terrorism offences, was lawful under the common law or under the Data Protection Act 2018 in the absence of death penalty assurances. In Jackson, the Court of Appeal (Criminal Division) considered the circumstances in which the decision of a judge to allow a witness to be treated as hostile could be challenged on appeal. In Brain the Court of Appeal (Criminal Division) considered the extent to which pre-commencement offending could be considered in making a criminal behaviour order, and assessed the proportionality of requirements not to use social media.
Elgizouli v Secretary of State for the Home Department  UKSC 10
The judgment of the court, available here, was handed down on 25/03/20. The lead judgment was given by Lord Kerr.
The Supreme Court held that the provision of mutual legal assistance by the Secretary of State to the United States, in relation to a prospective prosecution of the appellant’s son in the US, was unlawful under Part 3 of the Data Protection Act 2018 Act insofar as it consisted of personal data within the meaning of that Act. Prosecution was sought in respect of several terrorism charges, and provision of mutual legal assistance would be unlawful in the absence of assurances that the death penalty would not be sought or that the assistance would not be used directly in proceedings in which the death penalty would be sought.
The appellant’s son and another man are accused of being part of a group which was responsible for extremely grave offences committed against several individuals in Syria. These include beheading 27 men and uploading videos of the killings to the internet. Upon the Crown Prosecution Service concluding that they had insufficient evidence to charge the two men, US authorities intended to prosecute them for these offences. After it was revealed that the Secretary of State had provided mutual legal assistance to the United States without receiving assurances that the death penalty would not be imposed in any subsequent trial, or that the evidence would not be used directly in proceedings in which the death penalty was sought, the appellant brought judicial review action challenging the provision of that mutual legal assistance. That judicial review was dismissed by the Divisional Court. The appellant appealed on two grounds: (i) it is unlawful at common law for the Government to facilitate the carrying out of the death penalty in a foreign state, not only by deporting or removing a person from the United Kingdom to be tried in that state, but also by providing information which may be used by that state in the trial of a person who is not currently in the United Kingdom; and (ii) the decision to provide such information, insofar as it consists of personal data within the meaning of the Data Protection Act 2018, was unlawful under Part 3 of that Act.
The Supreme Court unanimously allowed the appeal.
The majority (Lady Hale, Lord Reed, Lord Carnwarth, Lord Hodge, Lady Black and Lord Lloyd-Jones) held that there is as yet no established principle (under the common law, the European Convention or any other recognised system of law), which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country merely because it carries a risk of leading to the death penalty in that country (). The power of the courts to develop the common law is not in doubt, but it is a power to be exercised with caution (). To recognise such a principle would not be an incremental step in developing the common law (). The death penalty as such has never attracted the attention of the common law, the developments of the law have come from Parliament or the European Court of Human Rights, rather than the domestic courts (). It is also relevant that we are not here considering facilitation in general, but facilitation by the transfer of information. The development of a common law rule would have to take account of the fact that, at least as respects the transfer of personal data, Parliament has recently legislated in this field, in the 2018 Act. That provides a detailed and carefully calibrated regime for the transfer of such information to third countries. It is difficult to reconcile that scheme with the development of an absolute common law prohibition of transfer of information in defined circumstances ().
Dissenting on this point, Lord Kerr, was of the opinion that the time had arrived where a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where to do so would put that person in peril of being executed (). In reaching that conclusion he placed emphasis on the Bill of Rights, contemporary values in relation to the death penalty, ECHR, EU and Commonwealth jurisprudence opposing the death penalty, and the purported illogicality of refusing to extradite or deport individuals for trial in a foreign state where there was a risk of the imposition of the death penalty, without requisite assurances, but of facilitating such a trial when precisely the same outcome is in prospect without demanding assurances (). The exercise of the prerogative must yield to that principle and be exercised in accordance with it ().
Data Protection Act 2018
The court unanimously held that the decision to provide information was unlawful under Part 3 of the 2018 Act.
It was agreed that the provision of material by the Home Secretary involved the “processing” of “personal data” for a “law enforcement purpose” by a “controller” which is a “competent authority” for the purposes of Part 3 of the Act and that the Home Secretary did not expressly consider his duties under the Act (). Under section 73(1)(a) of the 2018 Act a data controller cannot transfer data unless the three conditions in s. 73(1)(a) are met. The second of those conditions is that the transfer is based on an adequacy decision, or on there being appropriate safeguards, or on special circumstances. This transfer was not based on an adequacy decision or on there being appropriate safeguards, because there were none (, , , ). “Special circumstances” should be interpreted restrictively and limited to data which are “strictly necessary” for any of the five purposes listed in section 76(1) ( and ). The test of necessity requires the controller to address his mind to the proportionality of the transfer and this condition was not met (, , , ).
Obiter dicta: Lady Hale was of the opinion that the relevant provisions pointed to an interpretation of section 76(2) which would not allow the transfer of personal data to facilitate a prosecution which could result in the death penalty; but which would allow such a transfer if it was urgently necessary to save life or prevent an imminent crime. Had it been necessary, she would have been prepared so to hold (). Lord Kerr recognised the force of these comments ().
R v Jackson  EWCA Crim 411
The judgment, available here, was handed down by Fraser J on 10/03/20.
The Court of Appeal held that the decision of a judge to allow a witness to be treated as hostile is solely a matter of discretion of the trial judge, and it can be challenged on appeal only in exceptional circumstances – it is an absolute discretion.
The applicant had been convicted of robbery and possession of an imitation firearm at the time of committing an indictable offence. The prosecution’s case was that he had been one of two men who had robbed a Post Office. The offenders had arrived on a lime green motorcycle, wearing balaclavas and crash helmets. One remained by the door, holding a machete with black tape around the handle. The other was carrying a cardboard box from which he produced what appeared to be a sawn-off shotgun. That was never recovered and so was charged as an imitation firearm. The raid was short in duration but was captured on CCTV. The applicant’s case at trial was that he had not been involved. The applicant renewed his application for permission to appeal against his conviction seeking an extension of time of 27 days on the ground that the judge had erred in granting the Crown’s application to treat a witness as hostile after he resiled at trial from his witness statement saying he knew the applicant well and had made the registration plate for the motorcycle, claiming he did not know the applicant and had made the plate for another.
The Court of Appeal refused the renewed application. The decision of a judge to allow a witness to be treated as hostile is solely a matter of discretion of the trial judge, and it can be challenged on appeal only in exceptional circumstances – it is an absolute discretion. Provided correct directions are given to the jury, which they were, then no errors of law, unfairness, or risks of an unsafe conviction can have resulted, and there was no such here (). The applicant had been given an opportunity to cross-examine the witness and it was only a small part of the evidence against him which had included a witness who had claimed to recognise the applicant’s voice, that machetes, cash and balaclavas were found at the applicant’s home, that a green motorcycle was found nearby burnt out, that his DNA was on the box in which the gun had been stored, and witness statements saying they had seen him riding a green motorcycle (). It was not reasonably arguable that the ruling was wrong, or that the conviction is unsafe as a result ().
R v Brain  EWCA Crim 457
The judgment, available here, was handed down by Carr J on 10/03/20.
The Court of Appeal held that although only conduct post 20 October 2013 may be taken into account when considering whether to make a criminal behaviour order, the court is entitled to take account of the broader historical background as context for assessing the direct conduct which took place after 20 October 2013, and that a prohibition in a criminal behaviour order which prevented the offender from using social media platforms for work purposes were not justified.
Between 2012 and 2015 the applicant used social media, including dating sites, in order to form relationships with women, having provided them with a fictitious account of his identity, personal history and intentions (often including an exaggerated service history). He then stole from them and obtained money from them by deception. He would have relationship with numerous women at any one time and move between them and back again, whilst grooming another victim for the purpose of establishing a further relationship. In relation to this behaviour in 2016 he was convicted of 14 offences of theft and fraud, principally in relation to four elderly or vulnerable women. A criminal behaviour order was imposed, which among other things prohibited the applicant from accessing or using any internet based dating or social networking sites (prohibition 1); being in possession of any other person’s bank card, chequebook or bank account details in any form (including electronically) unless expressly authorised by the person without duress. (prohibition 7); using another person’s bank card, chequebook or bank account for any transaction (including any electronic transfer) unless expressly authorised by the person without duress. (prohibition 8); making any false claim in the submission of an application of employment or any other position of trust whether for payment or not (prohibition 9). In 2018, following his release from a custodial sentence he received for the 2016 offending he set up new online profiles on Facebook and Instagram under a false name (in breach of prohibition 1) and holding himself out as an ex-Special Forces Serviceman (in breach of prohibition 6 of the order). He pleaded guilty to two breaches of a criminal behaviour order and was sentenced to two years’ imprisonment. The applicant sought leave to appeal against the criminal behaviour order imposed in 2016, and the sentence imposed in 2019.
Although granting the extension of time to appeal against the 2016 sentence the Court of Appeal dismissed both appeals.
The 2016 criminal behaviour order
The Anti-Social Behaviour, Crime and Policing Act 2014 came into force on 20 October 2014 (). Section 33(5) of the 2014 Act states: “In deciding whether to make a criminal behaviour order a court may take account of conduct occurring up to 1 year before the commencement day” (). Only conduct post 20 October 2013 should have been taken into account directly in deciding whether to impose a criminal behaviour order and here it was fair to assume that the Judge (incorrectly) took into account directly all of the material that had been presented before him as relevant. There was no proper enquiry into which matters could and could not be properly taken directly into account (). However, he was entitled to conclude on the basis of the post October 2013 material that, assuming that appropriate prohibitions could be identified, it was appropriate in principle to make a criminal behaviour order (). It is artificial in the context of criminal behaviour of the type in question simply to look at the individual dates of the offending. The conduct here was all part of an ongoing and continuous pattern. The court was always going to be entitled to take account of the broader historical background as context for assessing the direct conduct which took place in the relevant period postdating October 2013 ().
There was though force in the challenge to the blanket prohibition on the use of social networking sites, in particular so far as that prohibition may inhibit the applicant’s employment prospects. A variation would be granted so that the use of social networking sites would be permitted for employment-related purposes; prohibition 1 would now prohibit “access or use any internet based dating or social networking sites, the latter save for employment-related purposes.” (). Other restrictions on devices or programmes for internet use were justified, as were prohibitions relating to holding himself out as a service man (a tactic he had used in his offending) (). Prohibitions 7, 8 and 9, however, essentially are adequately dealt with by the criminal law as it exists in relation to offences of fraud; prohibitions should not be imposed in relation to conduct which would constitute a criminal offence on its own merits and so they would be quashed ().
The 2019 sentence
The judge was clearly entitled to categorise this as category A1 offending for the guideline (because the applicant’s actions evidenced a continuing risk of serious antisocial behaviour and that there was a serious or persistent breach), and to increase the starting point from 2 years to 3 years before credit for guilty plea (to reflect his previous convictions, the fact that the breaches were committed immediately after his release and his history of disobedience to court orders) ().
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