Weekly Digest: 4 February 2019

The appellants had spent, respectively, about 7 and 17 years in prison before their convictions were eventually quashed for being unsafe in light of newly discovered evidence. They subsequently applied for compensation under s. 133 of the Criminal Justice Act 1988 (“the 1988 Act”), as amended by s. 175 of the Anti-social Behaviour, Crime and Policing Act 2014. The respondent refused their applications on the ground that the new evidence did not show beyond reasonable doubt that they had not committed the offences. The appellants argued that the requirements contained in s. 133(1ZA) of the 1988 Act – i.e. that a person must show beyond reasonable doubt that the person did not commit the offence in order to claim compensation – was incompatible with the presumption of innocence contained in article 6(2) of the ECHR. The Divisional Court dismissed their claim, holding that it was bound by R (Adams) v Secretary of State for Justice [2011] UKSC 18 to hold that art. 6(2) did not apply to compensation decisions under s. 133, notwithstanding the ECtHR decision in Allen v United Kingdom (25424/09) (2016) 63 E.H.R.R. 10 to the contrary. In any event, it held that s. 133 was compatible with s. 6(2).

The Supreme Court, by a majority, dismissed the appeal. Although the decision in Allen might suggest that s. 133(1ZA) should be declared incompatible with art. 6(2), the question had not been decided by the ECtHR. There was nothing wrong with a criminal court, when setting aside a conviction, confining itself to indicating that the new evidence might have created the possibility of an acquittal, thus indicating that some ground for suspicion remained (Allen). That case also implied that while it would be objectionable to require an applicant for compensation to show that the fresh evidence demonstrated his innocence beyond reasonable doubt, it would not be objectionable to require him to show that it so undermined the original evidence against him that no conviction could possibly be based on it. To distinguish between those two scenarios for the purposes of art.6(2) added another unconvincing distinction to an area that was already full of unsatisfactory distinctions. There was no logical basis on which s.133(1ZA) could be seen as incompatible with art.6(2) (per Lords Mance, Wilson, Hughes and Lloyd-Jones). Lady Hale added that, although art. 6(2) was engaged, it did not follow that it had been breached in this case and, where a statutory provision might not lead to a violation, it was not appropriate to make a declaration. Lord Wilson added that if art. 6(2) had the meaning ascribed to it by the ECtHR in Allen, s. 133(1ZA) would be incompatible with it, but that meaning should not be adopted. Lords Reed and Kerr dissented on the basis that s. 133(1ZA) was incompatible with art. 6(2) because it effectively required the secretary of state to decide whether the applicant had established his innocence.

The respondents all had spent convictions, cautions or reprimands for minor offending. They challenged two statutory schemes which required the disclosure of convictions to potential employers. The first scheme concerned disclosure by ex-offenders and was governed by the Rehabilitation of Offenders Act 1974 and the Rehabilitation of Offenders (Northern Ireland) Order 1978. When questioned about previous convictions, an ex-offender was not obliged to disclose spent convictions. However, there were various exceptions to that rule. The second scheme concerned disclosure by the Disclosure and Barring Service and Access Northern Ireland. It was governed by the Police Act 1997 (“the 1997 Act”) Pt V, which provided for the mandatory disclosure of all convictions and cautions on a person’s record if certain conditions were satisfied. The amendments imposed further limitations on the convictions and cautions which had to be disclosed. However, the Courts of Appeal in England and Northern Ireland determined that the revised schemes were incompatible with art.8 ECHR. They also found that the schemes were disproportionate to their objectives because they were insufficiently specific in distinguishing between convictions and cautions of varying degrees of relevance. The Secretary of State for the Home Department and the Department of Justice for Northern Ireland appealed against these decisions concerning the compatibility of the amended schemes with art. 8 ECHR. One of the respondents cross-appealed against the refusal to quash the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 art. 2A(3)(c) (“the 1975 Order”), a measure amending the schemes.

The Supreme Court dismissed the appeals, upholding declarations of incompatibility and allowed the cross-appeal in part. For the purposes of art. 8, the two amended schemes were in accordance with the law. In the instant case, the rules governing the disclosure of criminal records under both schemes were highly prescriptive. The categories of disclosable convictions and cautions were exactly defined, and disclosure in those categories was mandatory. There might be arguments for more, fewer, wider or narrower categories, but the legality test was a fundamentally unsuitable instrument for assessing differences of degree of that kind.

As for whether the amended measures were proportionate, firstly, the Court concluded that it was legitimate for the legislation to require disclosure by references to pre-defined categories, as opposed to providing for a review of the circumstances of the case. First, it was entirely appropriate that the final decision about the relevance of a conviction to an individual’s suitability for some occupations should be that of the employer. Second, the objection to disclosure by category was based on the argument that employers could not be trusted to take an objective view of a conviction’s relevance, but the material available to support that objection was thin. Third, the two different schemes governing disclosure were carefully aligned, and the value of certainty was particularly high. Fourth, some four million applications for criminal record certificates were made every year in England and Wales, and a system of individual assessment would not be practical. The boundaries of the categories in the legislation had been drawn in an acceptable place and the categories in the scheme were appropriate, with two exceptions, namely: (i) the multiple convictions rule in ss. 113A and 113B of the 1997 Act, which provided that where a person had more than one conviction of whatever nature any conviction had to be disclosed in a criminal record certificate, could not be regarded as a necessary and proportionate way of disclosing criminal records indicating a propensity to reoffend; and (ii) disclosure of warnings and reprimands administered to young offenders would be inconsistent with the general purpose of those mechanisms, which was to avoid prosecutions and consequent deleterious effects on the young offender’s life.

The Court therefore upheld the declarations of incompatibility that had already been made in respect of the multiple conviction rule and the mandatory disclosure requirement for young offenders. In relation to the cross-appeal, a declaration of incompatibility was made in respect of s. 2A(3)(c) of the 1975 Order.

The respondents were directors of a major retail company. The company had issued a profit warning. A few weeks later, it issued a further statement in which it identified an overstatement of expected profit of approximately £250 million. The prosecution alleged that the overstatement of profits resulted from the practice of meeting impossibly high targets by unlawfully recognising income in an accounting period prior to the period in which it was earned. Some of the bringing forward of income was supported by false documentation. The overstatement to the market was alleged to be a result of fraud and false accounting by the respondents on the basis that they had been aware of the issue and not taken any steps to correct the figures. As a result of the overstatement, the market was misled and there was a risk that the shareholders would lose money when the share price fell. On retrial, the judge had accepted the respondents’ submission of no case to answer on the basis that no reasonable jury, properly directed, could be sure that the respondents had known that the respondents’ income had been improperly recognised.

The prosecution sought leave to appeal against the judge’s terminating ruling, contending that the judge had erred in (1) his reliance on an alleged “concession” that the prosecution had to prove that the respondents had known that the income was being improperly and unlawfully recognised (“knowledge”); (2) placing too much emphasis on evidence of concealment, as opposed to a failure to correct the figures (“concealment”); (3) ignoring the fact that it was sufficient for the prosecution to prove that the respondents had intended to expose another to risk of loss (“intention”); (4) usurping the function of the jury in his determination of the facts (“determination of the facts”); (5) failing to take into account significant evidence (“evidence”).

The application was refused.

1. Knowledge. In light of the prosecution difficulties in presenting their case, the judge’s understanding was entirely reasonable and justifiable. The difficulties arose out of the prosecution’s reliance on the underlying fraud and false accounting. The issue of bringing forward income was complex as it could be done in a number of ways. In the instant case, some of the improperly recognised income arose from the booking of legitimate income into the wrong period, and some seemed to be based on accountancy judgments, about which practitioners’ views may have differed. In the absence of accounting expertise, the prosecution was unable to differentiate between the different types of improperly recognised income and did not set out to prove the extent of the alleged underlying fraud or breaches of accountancy practice.
2. Concealment. The judge had focused on concealment because this was the way that the case had been presented and given the analysis at (i), a failure to correct could not logically arise.
3. Intention. The judge focussed on evidence of the respondents’ intent to keep their jobs, keep share price high and thereby increase their remuneration, but had not ignored the possibility of exposure to a risk of loss.
4. Determination of the fact. Where evidence was capable of more than one reasonable interpretation, a judge was not obliged to proceed on the basis that every possible adverse inference must be drawn against a defendant, especially where they considered the totality of the evidence pointed in the opposite direction. There might be a fine balance between withdrawing a case from a jury and thereby usurping its function, and leaving a case to the jury where the evidence was barely sufficient, but the judge was allowed a margin of judgement having heard the evidence and seen the witnesses.
5. Evidence. Even if the judge had not mentioned evidence relied on by the prosecution, he had borne all relevant matters in mind.

The appellant had been the co- and then sole owner of a specialist boarding school for boys aged between 7 and 16 who had been placed in the facility by reason of their inability to be educated in the mainstream educational system. In the Carlisle Crown Court, the appellant and four co-defendants were charged on a five-count indictment. The appellant was convicted on counts 2 (assault occasioning actual bodily harm) and 8 (cruelty to a person under 16 years). The appellant appealed against his conviction on these two counts: in respect of count 8, he contended that (i) the verdict on this count was inconsistent with the verdict on count 7 and (ii) the judge left the matter to the jury in a way not particularised on the indictment; on count 2, the appellant’s principle point was that the judge’s cross-admissibility direction was insufficient.

The appeal was allowed and the appellant’s conviction on both counts quashed.

Count 8. Count 8 had to be viewed in the context of count 7. By count 7, it was alleged that the appellant had slapped and punched the complainant in his office. It was then alleged that the appellant told the him to strip naked and go into the dining hall. Count 8 related to what was said to have happened immediately after that. The complainant said that he was further assaulted by the appellant, who grabbed him by the head, slammed it into the table and then kicked him when he was on the floor.

The court accepted that the verdicts on count 7 and 8 were “decidedly odd” (at [27]), but not logically inconsistent. However, this oddity was explained by the manner in which count 8 was left to the jury; the wording of count 8 added the word “humiliated”, which did not appear in s. 1(1) of the Children and Young Persons Act 1933. In his summing up, the judge focused on the wording of s. 1(1), but in a way that failed to account for the fact that, in this case, the prosecution had taken it upon itself to prove both assault and humiliation on this particular occasion. This, taken with the fact that the judge had twice referred to count 8 as being the incident of cruelty whereby the complainant had been “humiliated”, could have led the jury to think that humiliation was sufficient on this count. Accordingly, the conviction was quashed.

Count 2. In light of the judge’s cross-admissibility direction, which was generic evidence going to the culture of the school, the jury may have used the evidence on count 8 to support a verdict of guilty on count 2. Given that the verdict on count 8 was not safe, this in itself told against the safety of the conviction on count 2. If the complaints were to be cross-admissible, a tailored and qualified direction was needed, but none was given. Therefore, the conviction on count 2 was quashed.

A woman and her partner were accused of cutting their three-year-old daughter over the 2017 summer bank holiday. The defendants had denied the FGM and the alternative charge of failing to protect a girl from risk of genital mutlilation.

The full piece can be read here.

The number of homicides – including murder and manslaughter – rose from 649 to 739, an increase of 14%, in the 12 months to the end of September 2018. It is the the highest total for such crimes since 2007. Robbery went up by 17%, as did recorded sexual offences, according to the data released by the Office for National Statistics (ONS). Overall crimes recorded by police went up by 7% with a total of 5,723,182 offences recorded.

The full piece can be read here.

The prisons watchdog has said that more than half of the inmates held in prisons for young people in England and Wales are from black and minority ethnic backgrounds, prompting warnings that youth jails have hit “American” levels of disproportionality.

The full piece can be read here.