This week’s Digest considers six judgments, five of the Court of Appeal (Criminal Division) and one of the Divisional Court. R v Ahmed and others was an appeal against conviction and sentence imposed for robbery. In R v M, the appellant sought to challenge his conviction primarily on the basis an alternative offence should have been left to the jury. The issue in R v Sweeney was whether a sentence imposed on an offender who was 17 at the time failed to take into account his age and the available mitigation. R v Allard was an appeal against sentence and addresses whether the judge had erred in his approach to the total sentence to be imposed for a number of serious offences. In R v Druzyc, the court considered an appeal against a conviction under s. 206(1)(b) of the Insolvency Act 1986. Finally, in Callum (Review of Tarrif) the Divisional Court considered whether a recommendation to reduce the offender’s minimum term should be made.
R v Ahmed and others [2019] EWCA Crim 1085
The judgment, available here, was handed down by Hickinbottom LJ on 25.06.19.
Four appellants were convicted of robbery. One appellant’s conviction for robbery was upheld; the judge had been right to give a s. 34 direction regarding inferences that could be drawn following a no comment interview. The appellants’ appeals against sentence were successful on the basis of a miscategorisation of the offence by the sentencing judge.
The victim had become lost on an estate and got out of his vehicle. He was approached by the appellants (A1 – A4) who robbed him of his watch, mobile phone and cash. The prosecution case was that A3 and two others had metal poles. At the time, A1 was 19, A2 was 18, and A3 and A4 were 16. Only A3 gave evidence at trial. He had given a “no comment” interview to police. He denied having carried a metal pole but said he had had a piece of plastic tube. He stated that he had been told that someone had lured a paedophile to the estate, and they were going to confront him. The prosecution case was that it had been a joint enterprise robbery. The judge gave the jury a direction under s. 34 Criminal Justice and Public Order Act 1994 regarding inferences that could be drawn from A3 giving evidence after having given a “no comment” interview. The four appellants were found guilty of robbery. In sentencing, the judge determined that it had been a Category 1A robbery under the relevant sentencing guidelines due to the harm to the victim, with a starting point of seven years. A1 and A2 were each sentenced to seven years and eleven months’ imprisonment; A3 and A4 received three years each. A3 appealed against his conviction for robbery and all four appellants appealed against their sentences for robbery.
A3’s appeal against conviction was dismissed. The judge’s s.34 direction had been appropriate. A3 had had an adequate opportunity in his oral evidence to explain why he had not referred in interview to carrying a plastic tube or to hearing that the confrontation would be with a paedophile. While the judge and A3’s counsel had not had a good relationship, the judge had been entitled to reject her submissions that the cross-examination of A3 was unfair.
The appeals against sentence were allowed. The judge had erred in selecting Category 1A for the robbery due to the level of harm to the victim. The adjusted sentences, with the appropriate youth discount, were as follows: A1 6 years, A2 5 ½ years, A3 3 years plus time spent on remand under monitored curfew, and A4 2 ½ years.
R v M [2019] EWCA Crim 1094
The judgment, available here, was handed down by Males LJ on 21.06.19.
The court dismissed an appeal against a conviction for wounding with intent. The judge had been right not to leave an alternative s. 20 offence to the jury as, in the circumstances, this was not an obvious alternative. Further, the judge had not erred in allowing evidence of two previous knife incidents to be adduced as it was relevant in light of the appellant’s assertion that he did not habitually carry a knife.
The appellant, 14 years old at the time offence, stabbed the victim, also 14 years of age, three times with a kitchen knife. The incident occurred as the victim sought to put himself between the appellant and his father following a verbal altercation. The appellant was charged on three counts: attempted murder (count 1); wounding with intent (count 2); and having a blade or point in a public place (count 3). The appellant pleaded guilty to count 3 at the beginning of the trial. The appellant’s defence was that it was an accident; he had not intended to injure A. He also gave evidence that he did not habitually carry a knife. The jury could not agree on count 1 but he was convicted on count 2. The judge sentenced the appellant to four years detention and imposed no separate penalty on count 3. The appellant appealed against conviction on the basis that the judge was wrong not to add a further alternative to the indictment which would have enabled the jury to find the appellant guilty of a s. 20 offence. He also renewed an application for leave to appeal on the basis that the judge had erred in allowing evidence of two previous incidents relating to knives to be adduced.
The appeal was dismissed. As for the alternative count, this was not a case where a s.20 offence was an obvious alternative offence which there was evidence to support (see Coutts [2006] UKHL 39, [2006] 1 WLR 2154, [23] per Lord Bingham) It was not the appellant’s evidence that he was guilty under s. 20 because he had stabbed the victim but had not intended to cause him serious harm; his evidence was that he was not guilty at all. There was no reason to conclude that the judge was wrong that the alternative count was unnecessary ([21] – [36]). Regarding the previous knife incidents, the evidence was relevant for showing that the appellant had an interest in knives and a propensity to carry them in light of his assertion that he did not habitually carry a knife ([40] – [44]). Further, although not formally raised in written argument, the appellant orally suggested that the trial judge’s direction on intent was unclear. The court agreed with this, although, taken as a whole, the direction was sufficient and did not render the appellant’s conviction unsafe ([37] – [39]).
R v Sweeney [2019] EWCA 1090
The judgment, available here, was handed down by Butcher J 20.06.19.
An appeal against convictions for robbery and attempted robbery brought upon the basis the judge had failed to properly account for the appellant’s age and the available mitigation was dismissed; the judge had been entitled to impose the sentences that he did, especially in light of the appellant’s criminal record and the manner in which the instant offences were executed.
The appellant was convicted of three counts of robbery and one count of attempted robbery. In the early hours of 28 February 2019, the appellant, aged 17, was part of group of young men in the Cassiobury Park area after a music festival. They approached their victims with covered faces, sprayed or threatened to spray CS gas into their victims’ faces, and all were in possession of knives. On the robbery counts, the judge sentenced him to 5 years and 4 months in a young offender institution to run concurrently with a sentence of three years detention for the attempted robbery. The appellant appealed against the sentence imposed on two grounds: insufficient consideration was given to (i) the appellant’s age at the time of the offence and (ii) the mitigating factors.
The appeal was dismissed; given the nature and number of the offences, the judge was entitled to impose the sentence which he did, and it could not be said to be manifestly excessive. The aggravating factors – the use of disguises, knives and CS gas, as well as the appellant’s previous convictions for similar offences – justified the judge’s starting point of 10 years before considerations of youth, mitigation and plea. The reduction of four years for youth and other mitigation was appropriate; the appellant had demonstrated a considerable degree of criminal maturity through his record of previous convictions and the sophistication of the execution of the instant offences.
R v Allard [2019] EWCA Crim 1075
The judgment, available here, was handed down by Holroyde LJ on 12.06.19.
An appeal against a custodial term of 21 years with a 5-year extension period for a number of serious offences was allowed on the basis that the judge had failed to give appropriate consideration to the appellant’s youth at the time that the offences were actually committed.
The appellant, aged 20 at the age of offending, was convicted of a number of serious offences. On 2 September 2017, the appellant was involved in an altercation which led to convictions of attempted robbery and assault occasioning actual bodily harm. On 11 January 2018, was again involved in an altercation that ended with him stabbing an individual in the chest leading to a pneumothorax; this resulting in a conviction for wounding with intent to do grievous bodily harm. Finally, on 13 February 2018, while trying to escape from police, the appellant hit an officer with his car, causing him serious injuries; this led to a conviction of wounding with intent to resist or prevent lawful apprehension and dangerous driving. He also pleaded guilty to an offence of supplying a class B drug. The total sentence imposed by the judge was 21 years’ custody and an extension period of 5 years. The appellant appealed on two grounds: (i) the judge was wrong to treat the wounding with intent to resist arrest as a Category 1 offence under the guideline in respect of wounding with intent to do grievous bodily harm; and (ii) insufficient regard was had to the principle of totality such that the sentence imposed was manifestly excessive.
The appeal was allowed. While the judge was entitled to move the wounding with intent offence beyond Category 2 because of the aggravating factors, the appeal succeeded on the second ground. The appellant was only 20 at the material time and his previous convictions, on closer analysis, were less serious than first appeared. The seriousness of the offending had to be set in the context of the appellant’s young age. The substituted sentences were as follows: for the attempted robbery offence, a determinate sentence of three years was imposed; for the wounding with intent and the wounding with intent to resist arrest offences, a determinate sentence of 20 years comprising of a custodial term of 15 years and an extension period of five years respectively.
R v Druzyc [2019] EWCA Crim 1076
The judgment, available here, was handed down by Holroyde LJ on 11.06.19.
A conviction for fraudulently removing property in anticipation of the winding-up of a company contrary to s. 206(1)(b) of the Insolvency Act 1986 was quashed on the basis that the offence actually charged was not actually proved by the evidence adduced owing to the fact that period of offending alleged in the count on the indictment was 18 months before the winding up of the company whereas s. 206 required the offending to have been committed within 12 months of the date of winding up.
The appellant was convicted of two offences of fraudulent trading and an offence of fraudulently removing property in anticipation of the winding-up of a company contrary to s. 206(1)(b) of the Insolvency Act 1986 (“the 1986 Act”). This appeal concerns the conviction under s. 206(1)(b). Section s. 206(1)(b) of the 1986 provides that it is an offence to fraudulently remove value from the company where it is done “within the 12 months immediately preceding the commencement of the winding up” (s. 206(1)). The appellant transferred some £43,000 out of the company account of which he was a director to his own personal account. The particulars of the count alleged that the conduct took place “between 31 January 2012 and 16 February 2012”. It was agreed that the date of the commencement of the winding up was 6 August 2013. Thus, the basis of the conviction was conduct that took place outside the 12-month period prescribed by s. 206(1) of the 1986 Act. The prosecution nevertheless submitted that the conviction on this count should be upheld for two reasons: (i) this mistake was no more than mislabelling which did not materially affect the criminality pleaded in that count (R v Wilson (Michael) [2013] EWCA Crim 1780); and, in the alternative, (ii) the court should exercise its powers under s. 3 of the Criminal Appeal Act 1968 to substitute a conviction for an alternative offence under s. 207 of the 1986 Act .
The appeal was allowed, and the conviction quashed. Both the Crown’s submissions failed. As for the first argument advanced, it was clear that it was intended that the appellant be charged with the s. 206 offence and the error was such that the evidence relied on by the Crown was insufficient to prove the offence charged. Thus, this was not a case of mislabelling of an appropriate charge; rather it was a case of charging an offence which could never be proved on the evidence to be adduced. The second argument also failed on the basis that the offence charged did not impliedly or expressly contain an allegation of the offence under s. 207 of the 1986 Act.
Callum (Review of tariff) [2019] EWHC 1544 (Admin)
The judgment, available here, was handed down by Spencer J on 17.06.19.
The court refused to recommend a reduction in the offender’s minimum term; although the offender had made good progress, evidence of the required assumption of responsibility was not forthcoming and thus there was not “clear evidence of exceptional and unforeseen progress”.
The offender, aged 17 at the time, had shot dead a 21-year-old man. He denied the offence and had continued to maintain his innocence throughout the first eight years of his sentence. However, in 2017, while participating in the Thinking Skills programme, he had accepted responsibility. Guidance on what might be regarded as exceptional progress was provided in March 2018 by HM Prison and Probation Service in a document headed “Criteria for reduction of minimum term in respect of HMP detainees”. The issue in this case was whether there was clear evidence of exceptional and unforeseen progress as might reasonably be judged to require reconsideration of the offender’s minimum term, which was set at 19 years.
No recommendation to reduce the tariff was given. The criteria document indicated that specific factors indicative of exceptional progress might include a prisoner having demonstrated:
- an exemplary work and disciplinary record in prison
- genuine remorse and acceptance of an appropriate level of responsibility for the part played in the offence
- the ability to build and maintain successful relationships with fellow prisoners and prison staff
- successful engagement in work (including offending behaviour/offence-related courses)
The document further stated that the offender also had to demonstrate that they had assumed responsibility and had shown themselves to be trustworthy when given such responsibility. Ideally, there would be evidence of sustained involvement in more than one prison over a lengthy period (see [9] – [16]).
As for the substantive review of the offender’s case, critically there was no substantive evidence of the required assumption of responsibility. Thus, although the offender had made very good progress across a wide range of areas, there was not “clear evidence of exceptional and unforeseen progress” which, reasonably judged, required a reduction in his minimum term (R (on the application of Smith) v Secretary of State for the Home Department [2004] EWCA Civ 99. It was a high threshold. If the offender continued to make such good progress, continued to justify his category C status, and addressed the omissions identified, there could be a future finding of exceptional progress justifying a reduction.
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