Weekly Digest: 4 December 2017

The appellant was convicted on 5 February 2016 of conspiracy to import cannabis contrary to s.1 of the Criminal Law Act 1977. At trial, the prosecution relied on a number of strands of evidence: first, a number of bank deposits which the prosecution alleged were payment for the drugs; second, conversations between the appellant and a co-accused at the time of the bank deposits; third, a wooden press and notebook found in a storage unit with other paraphernalia for the packaging and distribution of drugs; fourth, the appellant’s previous conviction in November 1995 for importing herbal cannabis into the UK. In relation to the notebook, the judge admitted it into evidence on the basis that it had the potential to establish the appellant’s connection with cannabis and with dealing the cannabis. Moreover, it addressed the defence that the appellant had nothing to do with the importation of cannabis and the notebook contained references to drug dealing. In relation to the bad character evidence, the judge admitted it under s.101(d) Criminal Justice Act 2003 (“CJA”) on the basis that the conviction had similar hallmarks to the current charge.

These elements formed two grounds of appeal:

• the notebook should not have been admitted and, in any event, the judge’s summing up in relation to the notebook was insufficient; and
• it was unfair to have admitted evidence of the appellant’s previous conviction on the basis that it related to an offence committed some 18 years ago and it was not sufficiently similar to the index offence to be probative (see s.101(3) CJA).

The court focused their attention to the first ground and this was the basis on which the court allowed the appeal and quashed the appellant’s conviction. The judge’s treatment of the notebook was unsatisfactory. It contained unedited material which should not have gone before the jury and, further, it contained bad character evidence on which the jury had not been properly directed in the summing-up. At trial, the judge did not give a direction in relation to the notebook beyond indicating it was to be treated as evidence that the appellant was involved in the trafficking of cannabis. This was a material error which rendered the conviction unsafe.

There was no need for a consideration of (ii), but the court noted that this was not a case in which it could be said that the prosecution case was weak or their evidence insubstantial such that the admission of the previous conviction would be outside the broad ambit of legitimate judgment.

The appellant was convicted of the murder of Jeff Shepherd on 19 January 2016. He was sentenced to life imprisonment with a specified minimum term of 18 years. The appellant and the deceased had lived at a hostel together and there had been evidence at trial of the appellant’s aggressive and threatening behaviour towards him. The issue at trial was whether the prosecution had proved that, at the time of the admitted unlawful violence, the appellant intended to kill or cause really serious injury to Jeff Shepherd and, if so, whether the prosecution had disproved the appellant’s partial defence of loss of control. The prosecution relied on a number of strands of hearsay evidence to substantiate their case: (1) a letter written by Jeff Shepherd in which he complained about the appellant; (2) evidence his complaints to his sister-in-law about the appellant’s aggressive and bullying manner; (3) evidence from the manager of the hostel and the pastor about what Jeff Shepherd had told her about the appellant’s conduct in the weeks before the incident.

It was the way in which the trial judge dealt with that hearsay evidence which formed the basis of this appeal. There were two grounds which were argued before the court:

• the prosecution reliance on hearsay evidence required careful directions by the judge and the judge failed to give any or any sufficient direction in relation to the evidence (see R Horncastle [2010] 2 AC 373); and
• this omission was particularly significant since the hearsay evidence related to reprehensible conduct and the jury should therefore have been directed that they must have been sure the allegations were true before taking them into account.

The court noted that, in the normal course, they would have expected an initial direction before the jury heard the hearsay evidence, warning them of the three limitations to hearsay evidence

(Horncaste at [38] and Blackstone’s Criminal Practice 2018 at F17.96) and the direction to be repeated in the summing up. In this case, however, the dynamics of the trial had changed when the appellant gave evidence such that the hearsay evidence from Jeff Shepherd became far less significant in the context of the issue the jury had to determine. The jury were, themselves, in a good position to assess the character and disposition of the appellant from the way he presented in the witness box and the jury also had the benefit of other evidence of the defence. In those circumstances, although the court wanted to make it clear that it was very important for a trial judge to explain to the jury the utility and limits of hearsay evidence, in this case the fact that the judge omitted to do so was not a material misdirection such as to undermine the safety of the conviction.

The claimants were either founders or members of Optimal Compliance Services LLP (“OCS”), a small consultancy established to support medium size businesses. OCS attracted the attention of HMRC, the second defendant, since they implemented a business model that was designed to reduce companies’ exposure to PAYE tax and National Insurance contributions. The model involved the establishment of an LLP alongside an existing limited company (“LTD”) and the movement of employees from the LTD to the LLP. Pursuant to a series of agreements, employees of the LTD receive a reduced salary from the LTD, but become entitled to a share of any profits of the LLP and are able to draw remuneration from the LLP as advance payments against future profits. This reduced each individual employee’s exposure to PAYE tax and National Insurance contribution to below £10 from £1,950. HMRC consequently began a civil investigation which, in July 2016, led to a criminal investigation. In the course of the latter investigation, a written application for search warrants in relation to the business premises of OCS and the residential premises of one of the claimants was prepared under s.9 and Schedule 1 of the Police and Criminal Evidence Act 1984 (“PACE”), relying on the first set of conditions. The application succeeded at an ex parte hearing on 12 December 2016 and it was the judge’s decision that the claimants sought to challenge.

The claimant contended that, in making their written and oral application, HMRC misrepresented both the law and the facts in important respects;  they made allegations of criminal conduct when, on a correct interpretation of the law, no crime could have been committed by OCS; alleged an intention on the part of OCS that LLPs adopting the model would never make a profit such that members’ individual personal taxation levels would deprive the public of the benefit of taxation; and alleged a lack of cooperation by OCS. As a result of all or any of these deficiencies, the judge was deprived of the opportunity to make a full and fair assessment of the propriety of issuing the warrants. In the judgment of Holroyde LJ, such broad criticisms were not warranted. The claim, however, succeeded on the narrow basis that HMRC’s contention that there had been such a serious failure of cooperation as to justify a belief that the giving of notice may result in the claimants acting in a way which would prejudice the investigation was without sufficient foundation. HMRC had materially misrepresented the extent to which the claimants had cooperated with them in their investigation such that they had created the impression OCS had thwarted HMRC. This was no evidence to substantiate this. The search warrants were accordingly quashed and the searches carried out pursuant to the warrant declared unlawful. The court rejected the claimant’s submission that they should have gone further and ordered the return of the material seized by HMRC in the search; that was a difficult position to square with the fact that they were willing to cooperate with HMRC’s investigation.

The claimant’s wife, Paula Gilfoyle, who was 8 ½ months pregnant with his child, was found dead, hanging in the garage at the home they shared. The claimant was charged with her murder on 8 June 1992. The Crown’s case at trial was that the claimant murdered his wife and tried to make it look like a suicide. The claimant did not give evidence and no evidence was called on his behalf. His defence, rejected by the jury’s verdict, was that her death was suicide or accidental, a grand gesture gone wrong. On 3 July 1993 he was convicted by a unanimous verdict and sentenced to life imprisonment. Two unsuccessful appeals to the Court of Appeal (in 1996 and 2000) followed.

The subject of these proceedings was the claimant’s third application to the defendant. It was some 205 pages when received and, coupled with oral representations made by the claimant, it amounted to a root and branch attack on every aspect of the police investigation, the trial, and associated events that took place after the trial. This application was refused and the claimant now sought to challenge that refusal on the grounds that:

1. the final decision was irrational in:

• dismissing the fresh evidence of Paula’s diaries; and
• finding that the claimant had access to medication throughout his trial.

2. the defendant made an error of fact amounting to an error of law in its review of the expert evidence of Mr Pawson regarding the cord by which Paula was hanged. In the alternative the defendant’s dismissal of the evidence was irrational.

Ground 1 (i): The diaries

 A five-year personal diary kept by Paula between 1982 and 1986 was disclosed to the defence before the trial but played no part in it. However, two five-year diaries and other personal papers relating to an earlier period in Paula’s life were found by police during a search of the claimant’s house. The defendant concluded that the material provided no grounds to refer the case to the Court of Appeal. They said the overarching point made on the claimant’s behalf was that the diaries cast doubt on the claim made by the Crown at trial that Paula had been in a happy and positive frame of mind; first they demonstrated that she had suffered severe mental trauma and second her propensity for deceit. In the defendant’s view, there was no way in which the diaries could have significantly assisted the defence had they been available at trial; they related to matters significantly distant in time concluding some 11 years before her death and, moreover, they consisted of adolescent experiences. An expert for the claimant tendered an explanation that this information amounted to evidence Paula could have developed a mental disorder that could have led her to commit suicide. The defendant considered that this could not be taken to be indicative of Paula’s circumstances at the time of her death.

The court found that the defendant had carefully considered this material and the conclusions they reached were not unreasonable or irrational, nor was the reasoning legally flawed. It was open to the defendant to take the view that the diaries amounted to no more than adolescent musings from a period too distant to be relevant to Paula’s state of mind. Accordingly, this challenge failed.

Ground 2: The rope and knot evidence

Mr Pawson, an expert in ropes and knots, submitted a report in which he substantiated the claimant’s case that Paula would have found it far easier to have tied the noose herself than was suggested at trial. This disproved, so it was said, the impossibility of Paula tying the knot herself, a feature of central significance to the Court of Appeal’s rejection of the claimant’s previous appeal. It was alleged that there was some error on the part of the defendant in that they said that a police officer had used Mr Pawson’s method in reconstructing the accident. This was not the case, as the defendant acknowledged, but this did not amount to a material error on which the defendant based their rejection of the method. The defendant had already concluded that it was more likely than not that Paula had not passed the rope over the beam herself and this was a conclusion open to them; their reasoning was not based upon this error. Accordingly this challenge failed.

Ground 1 (ii): Availability of the claimant’s medication at trial

 The claimant did not give any evidence at trial and he alleged that was a product of the fact that he did not receive his medication as he should have done during proceedings. The claimant’s submissions on this ground focussed narrowly on the medical prescription charts that were available. In the court’s view, this was too narrow an approach; it failed to take account of the medical assessment that the claimant had before the trial which contained nothing to suggest that the claimant was mentally ill or unfit to stand trial. Accordingly this challenge failed and the appeal was dismissed.

The claimant sought to challenge the lawfulness of the decision of the Parole Board dated 17 February 2017 to refuse to direct his release. The claimant was the subject of an extended sentence for offences of rape and robbery. In 2008, the claimant married Jane Wright, a woman he had previously known for some years. On 31 January 2011, the claimant was released on licence to approved hostel premises. On 6 May 2011, however, the claimant’s wife informed the Probation Service about an incident which had just occurred: the claimant had been smoking crack cocaine and self-harming. His licence was accordingly revoked and he was recalled to prison.

There had been two previous decisions by which the defendant had refused to release the claimant on the grounds that he presented a high risk of sexual and violent offending, which could not be safely managed in the community. The substance of these decisions was confirmed in the third decision, in respect of which these proceedings were brought. Following that decision, the claimant wrote to the defendant challenging that decision. In doing so, a number of observations were made, including the fact that all of the psychologists who provided evidence at the hearing were of the opinion that there was no further core risk reduction work to be carried out and that consolidation work could be carried out in the community. However, the main issue raised was the fact that the defendant had reached its determination in the absence of the full psychological risk assessment which it had commissioned. It was the claimant’s position that the panel should have adjourned its determination pending receipt of such an assessment.

The claim failed on the basis that, although strictly true that the defendant did not have a structured psychological risk assessment, the necessity or otherwise for this was a matter for the defendant, which in the event considered that the evidence provided by the psychologists was sufficient for its purposes. It was further apparent from the written decision that the defendant’s decision was not predicated on a formal diagnosis having been made as to the presence of psychopathy, but upon the risks arising from the personality traits which had been observed by the psychologists.

The Crown Prosecution Service (“CPS”) applied for judicial review of a costs order made by the HH Judge Sheridan at the Aylesbury Crown Court (“the costs order”) pursuant to s. 19 of the Prosecution of Offences Act 1985 (“the 1985 act”) and the Costs in Criminal Cases (General) Regulation 1986 (“the 1986 regulation”). The order stated that the CPS should pay “the full costs of the defence, to be taxed”. There were two arguments advanced by the CPS on appeal against that order, namely:

• the judge erred in ruling that the CPS should be liable for the actions of an expert witness instructed by it when the expert witness was an independent third party and, further, the judge was unable to identify any unnecessary or improper act or omission on the part of the CPS as required for an order by s.19 of the 1985 act; and, in any event,
• the judge erred in failing to specify the costs in the costs order, as required by regulation 3(3) of the 1986 regulation.

The proceedings out of which the costs order arose related to the prosecution of an offence of possessing an indecent image of a child. The expert instructed by the CPS, who examined the defendant’s laptop, concluded there was one category A image which was accessible. An independent expert instructed by the defence sought clarification of the location of the image which was the subject of the indictment and the experts finally concurred that there were in fact no images of children accessible on the computer. It was the behaviour of the Crown’s expert that formed the basis of the CPS’s adverse costs order.

The court acceded to both of the claimant’s submissions. In respect of (i), it was clear that the CPS were not responsible for their expert witness. The Crown Court has jurisdiction to order a party to pay the costs of another party to the proceedings if those costs have been incurred as a result of the improper or unnecessary act or omission “by or on behalf of” that party (regulation 3(1)(b) of the 1986 regulation). The existence of a contractual relationship between the CPS was not sufficient to bring the witness within the “by or on behalf of” provision; the expert did not give evidence on behalf of the Crown, nor was he to be regarded as part of the Crown. In any event, there was no basis for concluding that the act of the expert witness was “improper” within the meaning of s. 19 of the 1985 act and regulation 3 of the 1986 regulation.

Apart from these errors in the judge’s approach, his failure to carry out the assessment of the costs himself and to specify the amount to be paid (as required by Criminal Procedure Rules 45.8(7) – (10)) meant that the order was ultra vires the 1986 regulation. Accordingly, the costs order was quashed.

The appellant was convicted of an offence known in Poland as mistreatment of a minor and was sentenced to 6 months’ imprisonment. The appellant then deliberately absented himself from Poland in the middle of December 2013. A European Arrest Warrant was issued an certified in February 2017 and, pursuant to it, the appellant was arrested in this jurisdiction on 9 June 2017 and had remained in custody until the date of these proceedings. Extradition was ordered in July 2017, and the appellant appealed on the basis that (i) the offence of mistreatment of a minor was not an extradition offence and (ii) extradition would be incompatible with the appellant’s article 8 ECHR rights.

In respect of (i), the judge held that the district judge was right in their analysis of the crime in issue; mistreatment of a minor was akin to the offence of child cruelty in this jurisdiction. In respect of (ii), the district judge had not found the appellant’s evidence credible and doubted his evidence about his partner’s ill health. There was evidence which tended to suggest that the district judge was wrong in that conclusion. Nevertheless, the judge held that even if the district judge had erred in that respect, they were not wrong in their overall conclusion that, weighing up the evidence, extradition would not be a disproportionate interference with the appellant’s article 8 rights.

The position at the hearing of this appeal, however, was somewhat different to that before the district judge in that the appellant had now been in custody for the last six months since his arrest in February. The appellant had thus served the same term in custody that he would have served had he been extradited. On that basis, the judge allowed the appeal – following Dudkiewicz v. Regional Court in Warsaw (Poland) [2017] EWHC 2171 – and accordingly discharged the arrest warrant.

The claimant in these proceedings was serving a life sentence, with a minimum term of four years’ imprisonment, for a conviction of wounding with intent. The claimant was released on licence, but this was revoked following another conviction for assault. On 15^th July 2016, the Secretary of State for Justice referred the claimant’s case to the Parole Board pursuant to s. 32 of the Crime (Sentences) Act 1997. In her referral notice, she specifically asked the parole board to consider, in the event that immediate release was not directed, “whether the offender [was] ready to be moved to open prison conditions”. In their decision letter, the defendant failed to address this point and on this basis the claim succeeded. The appropriate relief was held to be a mandatory order compelling the defendant to address this aspect of the Secretary of State’s directions in a further decision letter.

One of the most liberal judges to enter the House of Lord died last week. During his time in the House of Lords, Lord Steyn never opened his mouth, believing that judges had no role to play in the legislature. Nevertheless, he made headlines in a number of seminal judgments, lectures and articles.

His obituary can be found here.

Investigators at the Hague are concerned, following the dock-suicide of Slobodan Praljak, that other inmates will seek to do the same. The tribunal has appointed Gambia’s chief justice Hassan to investigate how it was that Praljak obtained the cyanide poison.

The full piece is available here.

David Dearlove was sentenced to a minimum of 13 years’ imprisonment after a jury found that he had swung his 19-month-old stepson by the ankles and cracked his head against a fireplace. The attack was witnessed by the victims three year old brother who had crept downstairs to get a drink. In 2015, the victim’s brother approached the police.

The full piece is available here.

Changes to the snooper’s charter law proposed by ministers will see senior police officers lose their powers to self-authorise access to personal web browsing and phone records in an attempt to comply with a European court ruling on Britain’s surveillance powers.

The full piece is available here.

Pro-European Scottish politicians are to ask the ECJ if the UK can unilaterally stop the Brexit process. The four politicians are to ask the Court of Session to agree to refer the matter to the ECJ in a bid to block Brexit before a deal is finalised.

The full piece is available here.