Weekly Digest: 4 May 2020

AM was born in 1987 and was a national of Zimbabwe. He arrived in the UK in 2000 to join his mother, and he was granted indefinite leave to remain in 2004. In 2006, AM was convicted of a number of criminal offences and sentenced to a total of 12 months’ imprisonment. In 2009, AM was convicted of offences relating to possession of a firearm and supply of heroin, and was sentenced to nine years’ imprisonment. The Secretary of State sought to deport AM. However, AM is HIV positive. He was placed on the anti-retroviral medication, Eviplera, after having first been treated with another medication which produced significant side-effects. If AM were to be deported to Zimbabwe, a range of anti-retroviral medications would be available, but not Eviplera.

At a hearing before the First-tier Tribunal, counsel then appearing for AM relied on AM’s medical condition and the limits on treatment available to him, in addition to the impact of his deportation on his wife and child, to advance a claim based on Article 8 of the European Convention on Human Rights. The First-tier Tribunal dismissed the claim. AM appealed, and the appeal was dismissed by the Upper Tribunal. In the Court of Appeal, AM based his appeal on Article 3, rather than Article 8, of the European Convention on Human Rights. The Court of Appeal dismissed the appeal. AM appealed to the Supreme Court.

The Court allowed the appeal.

In D v United Kingdom (1997) 24 EHRR 423, the ECtHR held that to remove a man who was on his deathbed to a state where no care was available for him would violate article 3; and it referred to the exceptional circumstances and compelling humanitarian considerations in his case [14]. In the case of N, the House of Lords considered the ECtHR’s decision in this case and others like it concerning article 3. It held that the test in such cases was whether the applicant’s illness had reached such a critical stage that it would be inhuman to deprive him of the care he was receiving and to send him to an early death in the receiving state, unless there was care available there to enable him to meet it with dignity [15-17].

In N v United Kingdom (2008) 47 EHRR 39, the ECtHR held that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling” to those in the D case, a high threshold for violation of article 3 should be maintained [18]. In Paposhvili, the ECtHR reconsidered what those “other very exceptional cases” were. It held (at para 183) that they should now be taken to include cases in which there were substantial grounds for believing that the applicant, while not at imminent risk of dying, would face a real risk in the receiving country of being exposed either to a serious, rapid and irreversible decline in health resulting in intense suffering, or to “a significant reduction in life expectancy” [22]. According to the Court of Appeal in the present case, the test for violation of article 3 following Paposhvili was no longer whether death was imminent in the removing state, but whether intense suffering or death was imminent in the receiving state because treatment would be unavailable there [29]. The Court of Appeal was, however, mistaken in taking the ECtHR’s phrase, “a significant reduction in life expectancy”, to mean “the imminence of death” [30].  It was held that “significant” meant “substantial”: only a substantial reduction in life expectancy would reach the level of severity required by article 3. In addition, a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction [31].

In Paposhvili, the ECtHR also set out requirements (at paras 186 to 191) for the procedure to be followed in relation to applications under article 3 to resist return by reference to ill-health [23, 32]. One requirement is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, he or she would be exposed to a real risk of being subjected to treatment contrary to article 3. That is a demanding threshold for the applicant. His or her evidence must be capable of demonstrating “substantial” grounds for believing that it is a “very exceptional case” because of a “real” risk of subjection to “inhuman” treatment. He or she must put forward a case which, if not challenged or countered, would establish a violation of the article [32]. If the applicant presents evidence to that standard, the returning state can seek to challenge or counter it. The court held in Paposhvili that, in doing so, the returning state must “dispel any doubts raised” by the evidence; but “any doubts” here should be read to mean any serious doubts [33].

The Supreme Court held that a domestic court should only decline to follow a decision of the ECtHR in highly unusual circumstances, and there is no question of the court’s refusing to follow Paposhvili. In the light of that judgment, the court should now depart from the decision of the House of Lords in the N case [34].

The appellant first raised his article 3 claim in the Court of Appeal and, having accepted that it could not succeed at that level, he did not present evidence to support it. It was inappropriate for the Court of Appeal to extract medical reports from the evidence submitted in support of his article 8 claim, which did not address the Paposhvili requirements [36]. The Supreme Court held that it should not now determine whether the reports crossed the threshold required of an applicant under article 3 following Paposhvili. The proper course was to allow the appeal and to remit the article 3 claim to be heard on up-to-date evidence [37].

On 28 January 2005, at the conclusion of a two-month trial in the Manchester Crown Court before McCombe J (as he then was) and a jury, the appellant (then aged 61) was unanimously convicted of the murder of his (then) wife Carol Park (“CP”) some 28 ½ years previously, in the summer of 1976.  He was sentenced to life imprisonment with a minimum term of 15 years. His renewed application for permission to appeal against conviction was refused by the Court of Appeal in November 2008. On 25 January 2010, which was his 66th birthday, the appellant committed suicide in HMP Garth. On 26 October 2018 the CCRC referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.

The appeal was dismissed.

The Grounds of Appeal were as follows:

(1)     The prosecution failed to disclose evidence of the use and supply of drugs, capable of undermining the credibility of the prosecution witness Michael Wainwright, who gave evidence that the appellant had confessed details of the murder to him in the prison exercise yard.

(2)     The prosecution failed to disclose evidence of Dr Tapp’s expert opinion that undermined the consistent implication that the appellant’s (ice-axe), exhibit 1 at trial, could be the murder weapon.

(3)     New expert evidence is available to the effect that the appellant’s ice-axe was not used to cause facial injuries to the deceased.

(4)     The expert evidence of geologist Dr Moncrieff presented to the Court of Appeal in 2008, that the expert evidence given at trial to the effect that (the) rock found near the body did not match rocks found near the lake but did match rocks from ‘Bluestones’ (Gordon Park’s home) was unfounded, has importance in the context of the new grounds of Appeal.

Ground 1 – Non-disclosure of MW’s use and supply of drugs

The information should have been disclosed. However, there was no evidence that the information was deliberately withheld. The Court stated that the outcome had to be judged in the light of the numerous difficulties in MW’s evidence; of  his cross-examination by Mr Edis; and of the CCRC ‘s view that the Mr Edis had “conducted  a robust cross-examination of (MW ) by reference to his drug abuse, his failure to come forward before the television programme which had included most of the details that he had recounted, and all the changes, inconsistencies and inherent difficulties in his various accounts.”

Even if  the jury did rely, to some extent, on MW’s evidence and even if deployment in cross-examination of the note might have undermined his evidence even more, the circumstantial case against the appellant was, in the Court’s view, very strong such that, on this ground alone, the non-disclosure of the note and the new evidence as to the commission of the drug offences do not cause the court to doubt the safety of the conviction.

Ground 2 – Non-disclosure of Dr Tapp’s opinion in relation to the wooden ice-axe

This ground was interlinked with Ground 3, in that both were based on the premise that the prosecution case included the persistent suggestion or impression that the appellant’s wooden ice-axe was a good candidate for, or may have been, the murder weapon, which was not a peripheral issue.

The respondent conceded that the CPS note dated 2 June 2004, recording that Dr Tapp had examined the wooden ice-axe, and had said that “he did not think that it was the murder weapon although he believes that the weapon used was an axe”, should have been disclosed, along with the notes of the conferences on 22 June 2004 and 7 September 2004 – given that Dr Tapp was an expert witness.

The was nothing to suggest that the content of the notes was deliberately withheld in an act of bad faith.

In the Court’s view, the premise of this ground was misconceived in that, for the reasons set out by the respondent in argument (above), the suggestion or impression claimed by the appellant was never given by the prosecution, and nor was it ever likely to have been inferred by the jury.  The true position was clear from the contemporaneous records.

Thus, the pre-trial non-disclosure of Dr Tapp’s opinion that he did not think that the wooden ice-axe was the murder weapon and the failure to take a witness statement from him encompassing the opinions that he had expressed in the period from May to September 2004 do not impact on the safety of the appellant’s conviction.

Ground 3 – New expert evidence in relation to the wooden ice-axe

This ground was interlinked with ground 2 – in that both were based on the premise that the prosecution case included the persistent suggestion or impression that the appellant’s wooden ice-axe was a good candidate for, or may have been, the murder weapon, which was not a peripheral issue.

However, for the reasons that the Court explained when dealing (above) with the merits of ground 2, the premise upon which both grounds are based was said to be misconceived.

During the investigation and trial neither side sought expert odontological assistance as to the cause of the damage to CP’s teeth, which Dr Tapp thought could have been caused by the sharp edge of a weapon. There was subsequently (subject to Dr Evans’ small reservation) agreed expert odontological evidence that the damage to the teeth was the result of decomposition rather than artefactual.

However, in relation to the bony facial injuries, and subject to the fact that Dr Fegan-Earl did not formally respond to the opinion of the odonatological experts, it remained the view of all the pathologists that the wooden ice-axe could have been used to inflict the bony facial injuries, or that its use cannot be refuted.  Thus, in the Court of Appeal’s view, Dr Tapp’s opinion in relation to the potential cause of the facial injuries is not undermined by his error in relation to the cause of the damage to the teeth, nor does it cause doubt as to his observation as to the condition of the left zygoma.

Ground 4 – The expert evidence of Dr Moncrieff in relation to the rock

Dr Pirrie’s contested expert geological evidence in relation to the rock was one of a large number of matters relied on by the prosecution as part of its circumstantial case against the appellant. Mr Blaxland underlined that Dr Pirrie’s conclusion was that the rock had a particular characteristic which it shared with three rocks from a wall at ‘Bluestones’ which characteristic was not present in five rocks recovered from the shore of Coniston Water, which allowed a link to be inferred to ‘Bluestones’, and that, on the face of it, the prosecution’s case that that was a very significant finding was very powerful. In 2008, he submitted, this Court had understated its potential impact at trial.

The Court noted that it was clear at trial  that there were problems in relation to the evidence about the rock but that the Court did not understate the impact of Dr Pirrie’s conclusion being proved to have been wrong.

It remained the fact that the geological evidence about the rock was one of the aspects of the prosecution’s circumstantial case; that it was an aspect that was based on expert evidence; that, if the evidence as to the finding of the rock had been satisfactory, it had the potential in itself to implicate the appellant; and it had transpired that Dr Pirrie’s conclusion was wrong.

That said, the CCRC’s Reference was on the basis of the cumulative effect of its reasons, and so it is to the cumulative effect, and to our consequent view as to the safety of the conviction, that we now turn.

Cumulative effect and safety of the conviction

The Court of Appeal concluded, after testing its provisional view, that the circumstantial case remains very strong and that the combination of Ground 1 (which does not relate to the circumstantial case at all) and Ground 4 (which relates to only one aspect of the circumstantial case, which we have ignored when considering the strength of that case) does not cause us to doubt the safety of the appellant’s conviction. Finally, because the fresh evidence does not afford a ground for allowing the appeal, the Court formally declined to receive it.

D1 ran a nursing home. Over 20 years, he dishonestly targeted and befriended elderly residents in order to profit from them. He manipulated them and isolated them from their friends, family and advisers. A number of wealthy residents made him the residuary beneficiary of their wills and gave him control of their financial affairs. D also accepted large gifts from the residents, who had capacity but were highly vulnerable. D1 claimed that the residents had made the gifts freely and had been professionally advised. D2 assisted him in the commission of these offences.

The judge found that D1 had obtained £4,130,000 from the offences, which came to light when he brought a fabricated civil claim for £10 million against the estate of a deceased resident. At trial, the judge directed the jury on the issue of dishonesty by reference to the judgment in Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67 rather than that in R v Ghosh [1982] Q.B. 1053. In doing so, he indicated that he had followed the Supreme Court’s instruction that directions based on Ghosh should no longer be given.

The appellants submitted that Ghosh remained binding authority because the Supreme Court’s observations in Ivey were obiter dicta and that, even applying the Ivey test, the convictions were unsafe because the judge had failed to direct the jury to ascertain their actual state of mind before considering the second part of the test. Relying on R v James (Leslie) [2006] EWCA Crim 14, it was submitted on behalf of the prosecution that Ivey expressly overruled Ghosh and bound the instant court as to the meaning of dishonesty in the criminal context.

The appeal against conviction was dismissed but the appeal against sentence was allowed.

Dishonesty: rules of precedent 

The ordinary rules of precedent required the Court of Appeal to follow Supreme Court decisions. The undoubted reality was that, in Ivey, the Supreme Court had altered the established common law approach to precedent in the criminal courts by stating that the test for dishonesty it had identified, although strictly contained in obiter dicta, should be followed in preference to an otherwise binding authority of the Court of Appeal. It was not for the latter court to conclude that it was beyond the Supreme Court’s powers to act in that way.

The rules of precedent existed to provide legal certainty, which was a foundation of the administration of justice and the rule of law. They ensured order and predictability, whilst allowing for the development of the law in well-understood circumstances. They did not form a code which existed for its own sake, but had to be capable of flexibility where appropriate to ensure that they did not become self-defeating.

Where the Supreme Court itself directed that an otherwise binding decision of the Court of Appeal should no longer be followed and proposed an alternative test that it said had to be adopted, that amounted to a direction that the Court of Appeal was bound to follow even though it was strictly obiter. To that limited extent, the ordinary rules of precedent had been modified, provided that all the judges in the Supreme Court appeal agreed that to be the effect of the decision as they did in the instant case. Therefore, the test for dishonesty in all criminal cases was that established in Ivey. 

 Taking the summing-up as a whole, and consistently with Ivey, the jury could have been left in no doubt that, when applying the objective standard of dishonesty, it should do so by reference to its findings about the state of D’s knowledge or belief (see paras 102-105, 114, 116 of judgment).

Conspiracy to defraud 

For the offence to be made out, there had to be a dishonest agreement which included unlawfulness, either as to the object of the agreement or the means by which it would be carried out. It was not necessary to prove an intent to deceive or to cause economic or financial loss to the victim.

In the instant case, the necessary element of unlawfulness was the positive and extensive deceit practised on the victims with the intention of obtaining property to which the defendant was not entitled. The jury had been reminded of the elements of the offences, as set out in the indictment, and there was no doubt that it understood the requirement for the prosecution to establish that there was a dishonest agreement on the defendants’ part, by deceit or lies, to prejudice the victims’ proprietary rights or interests (paras 121, 123, 126).

Sentence 

The judge had correctly identified the appropriate category for each offence and the individual sentences were not manifestly excessive. The case was exceptional and involved a high level of exploitative criminality targeted at vulnerable elderly individuals. A lengthy overall sentence of imprisonment was undoubtedly merited. There were multiple victims over a long period and the offences entailed a substantial breach of trust, coupled with financial abuse and dishonesty, using sophisticated devices. The sums illegally obtained ran into the millions. However, the Court of Appeal concluded that 21 years was manifestly excessive for a 64-year-old man of previous good character. Accordingly, the sentence was reduced to 17 years (paras 158-161).

The defendants appealed against their sentences for having arranged, via the internet, to commit a sexual offence with a child, in circumstances where they were unaware they were in fact in contact with a police officer.

The third defendant, S, pleaded guilty to arranging or facilitating the commission of a child sex offence, contrary to s. 14 of the Sexual Offences Act 2003 (SOA 2003), two offences of possession of an indecent photograph of a child, contrary to s. 160(1) of the Criminal Justice Act 1988, and making indecent photographs of a child, contrary to s. 1(1)(a) of the Protection of Children Act 1978 (PCA 1978). He was sentenced to an extended sentence of eight years for the s. 14 offence (comprising a custodial term of six years and an extended licence period of two years), and six months’ imprisonment concurrent on the other two offences.

The fourth defendant, B, was sentenced to an extended sentence of seven years and four months for arranging or facilitating the commission of a child sex offence, contrary to s. 14 SOA 2003 (a custodial term of five years and four months, and an extended licence period of two years), six months’ imprisonment to be served concurrently for distributing an indecent photograph of a child, contrary to s.1(1)(b) PCA 1978, and nine months’ imprisonment, also to be served concurrently, for possession of an extreme pornographic image, contrary to s. 63(1)(7)(d) of the Criminal Justice and Immigration Act 2008.

The first defendant, P, pleaded guilty to arranging or facilitating the commission of a child sex offence, contrary to s.14 SOA 2003, and was sentenced to an extended determinate sentence of seven years and four months (the custodial term was five years and four months, with an extended licence period of two years).

The second defendant, W, pleaded guilty to arranging or facilitating the commission of a child sex offence, contrary to s.14  SOA 2003 and was sentenced to three years and four months’ imprisonment.

Whether, whenever there was a fictional child victim, sentencing would fall into the lowest category of harm under the guideline (category 3), subject to upward adjustment to reflect any relevant factors in the case

It was necessary to keep in mind the terms of the offence. It was intentionally arranging or facilitating activity which would constitute a child sexual offence, intending that it would happen. It was a preparatory offence, albeit it could cover the case in which the offence had been carried out. However, in that latter situation, the offender would ordinarily be charged as a participant in the full offence. The offence was complete when the arrangements for the offence were made or the intended offence had been facilitated and it was not, therefore, dependent on the completed offence happening or even being possible, and the absence of a real victim did not, therefore, reduce culpability. As a general proposition, the harm in a case would usually be greater when there was a real victim than when the victim was fictional. Nonetheless, s. 143(1) of the Criminal Justice Act 2003 required the court to consider the intended harm. The sentencing guideline on Arranging or Facilitating the Commission of a Child Sex Offence reflected those considerations (see [59]-[62] of the judgment).

The Court of Appeal held that Attorney General’s Reference No 94 of 2014; R v Baker (John) [2014] EWCA Crim 2752 did not require that s. 14 SOA offences in which there was no real child always had to be treated as category 3A offences under the guideline. For a s. 14 SOA 2003 offence, the position under the guideline was clear: the judge should, first, identify the category of harm on the basis of the sexual activity the defendant had intended (the level of harm should be determined by reference to the type of activity arranged or facilitated), and, second, adjust the sentence in order to ensure it was commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim had been fictional) (sentences commensurate with the applicable starting point and range would ordinarily be appropriate) (see [67] of the judgment).

That might lead to the result that a defendant who arranged the rape of a fictional 6-year-old was punished more severely than a defendant who facilitated a comparatively minor sexual assault on a real 15-year-old. There was nothing necessarily wrong in principle with that result. The sentence should be commensurate with the applicable starting point and range, and in cases where the child was a fiction that would usually involve some reduction to reflect the lack of harm (see [72] of the judgment).

With respect to S, the judge’s decision that the offending had come at the top of the range for a category 1A offence could not be faulted. The crime which S had intended to carry out was extremely serious. The starting point of nine years’ imprisonment, reduced to six years to reflect his guilty plea, had resulted in a long sentence. The judge had not reduced the starting point to reflect the absence of harm, but even allowing for those factors, the sentence had not been manifestly excessive. The only element of S’s sentence that required adjustment related to the victim surcharge order, because some of the offences for which he had been sentenced had dated back to 31 May 2013. The order should have been in the sum of £120 (see [73], [74] of the judgment).

With respect to B, the intended offending had been, although undoubtedly grave in nature, of slightly less seriousness than that contemplated by S. It would be borne in mind the lack of relevant previous convictions, B’s marital difficulties and the apparent remorse he had expressed, but as with S the lengthy sentence had not been manifestly excessive (see [75] of the judgment).

With respect to P, in the circumstances, a starting point of eight years’ imprisonment, reduced to five years and four months to reflect P’s guilty plea could not sustainably be characterised as manifestly excessive. That was particularly the case for a defendant with previous convictions of the kind P had accrued (see [76] of the judgment).

With respect to W, the judge had determined that he had not been dangerous and he had reduced what would otherwise have been a starting point after trial of six years’ imprisonment to five years on the basis that W could not have put his plans into effect. Applying full credit for his guilty plea, that had reduced the sentence to one of three years and four months’ imprisonment. In those circumstances, the sentence had not been manifestly excessive (see [77] of the judgment).

X appealed against a 12 year sentence of imprisonment imposed for wounding with intent to cause grievous bodily harm and assault occasioning actual bodily harm.

X had been in a telephone conversation with the victims (G and L) where he felt that L had insulted him. He went round to G and L’s house and forced his way in following a struggle at the door. He slashed G’s face and hip with a knife or razor and then attacked L by grabbing her by the throat and trying to throttle her. He was convicted of the offence of wounding with intent to cause grievous bodily harm for the attack on G and assault occasioning actual bodily harm for the attack on L.

The sentencing judge noted that G’s injuries were disfiguring and that there was visible facial scarring six months after the incident. He also considered that it had been a sustained attack upon G in his own home. On that basis he concluded that the wounding with intent offence fell within category 1 of the definitive sentencing guidelines for offences under the s.18 of the Offences Against the Person Act 1861 due to there being greater harm and higher culpability and sentenced X to the starting point for category 1 of 12 years’ imprisonment and to two years’ imprisonment for the actual bodily harm offence, to be served concurrently.

X submitted that the judge had mistakenly classified the wounding with intent offence as category 1. He argued that whilst there was higher culpability, the injuries sustained by G were not serious in the context of the offence; and the assault was not sustained in the sense intended by the guideline.

The appeal was allowed.

Greater harm: “Serious in the context of the offence”

Whilst G’s injuries were serious on a scale of assaults generally, they were considerably less grave than the injuries suffered by other victims of s.18 offences and were not significantly above the serious level of harm which was normal for the purpose of s.18 (see para.30 of judgment).

Greater harm: “Sustained or repeated assault” 

X inflicted at least four blows on two different areas of the body, and the assault lasted a couple of minutes. There was a struggle at the door which preceded the assault, the struggle continued as X inflicted blows on G before turning to assault L. It was a “nasty attack” but it was not a sustained or repeated assault that was so prolonged or persistent that it was out of the norm for s.18 offences and constituted greater harm justifying a starting point of 12 years’ rather than 6 years’ imprisonment (para.32).

Harm: conclusion

There was higher culpability because of the use of the knife as a weapon, but lesser harm and accordingly, the offence of wounding with intent fell within category 2 with a starting point of 6 years’ custody (para.33)

Aggravating and mitigating factors 

The use of the weapon was already reflected in the determination that there was higher culpability. The fact X carried the weapon to the scene for the purpose of the attack showed a degree of premeditation and was a significant aggravating factor which justified an increase from the category 2 starting point. The other aggravating factors were: (1) although the attack was not “sustained” in the sense required to constitute greater harm, it still involved a series of blows aimed at different areas of the body, including the face and neck; (2) the offence took place in G’s home; (3) the attack involved two victims. Although the assault on L was the subject of a concurrent sentence, it fell to be taken into account when reaching a just and proportionate sentence on the main charge. The aggravating factors justified a sentence at the top of the category 2 range for s.18 offences, which was nine years’ imprisonment, but after mitigating for X’s previous good character and the fact the offence appeared to be an isolated incident, the correct sentence was one of eight years’ imprisonment (paras 34-35).

The Claimant, Simon Halabi, challenged by way of judicial review the decision of the Defendant, Southwark Crown Court, dated 3^rd May 2019 dismissing his appeal against the imposition of a N/O upon him by Westminster Magistrates’ Court on 3^rd September 2018 (“the Decision”). The Commissioner of Police of the Metropolis (“the Commissioner”) appears as an Interested Party, and the Secretary of State for the Home Department (“SSHD”) appeared as an Intervener.

The Claimant was born in Syria on 2^nd August 1958 and given the name Simon Halabi. The Claimant alleged that when he was 15 years old, his family changed his name to Mohamed Basam Halabi in order to make it easier for him to leave Syria. On 30^th April 1998, the claimant was convicted in France, under the name ‘Mohamed Halabi’, of rape and obtaining and possessing controlled drugs. These offences had been committed 2½ years earlier in September 1995 when he was 37 years old.

In 2005, 2010 and 2014, the Claimant made applications in the name ‘Simon Halabi’ to the UK Metropolitan Police Service (“MPS”) for a firearms licence. On each occasion, he failed to disclose his previous convictions or his previous name. In 2012, the fact of the Claimant’s conviction for rape was notified by the French authorities to the UK Association of Chief Police Officers’ Criminal Records Office (“ACRO”), under the name ‘Mohamed Halabi’. ACRO did not immediately connect the conviction with the Claimant because he was using a different name. On 19^th October 2017, the French authorities notified ACRO that the Claimant was also known as ‘Simon Halabi’. ACRO recorded the Claimant’s conviction on the Police National Computer under the name ‘Simon Halabi’, and notified his local police force, the MPS.

On 3 September 2018 a N/O was made against the claimant. On 20^th September 2018, the Claimant lodged an appeal against the N/O to Southwark Crown Court. On 25^th April 2019, the Crown Court heard the claimant’s appeal. A written judgment was handed down on 3^rd May 2019 dismissing the appeal.

The claimant contended that there were three issues to be determined in this case:

(1) Whether the decision was disproportionate and violated Article 8 of the ECHR;

(2) Whether, by reason of section 3 of the HRA 1998, section 97(5) of the SOA 2003 can be read so as so as to include the qualification “except in so far as such an order would be disproportionate and thus a breach of article 8”; and

(3) If it cannot, whether the court ought to make a declaration of incompatibility pursuant to section 4 of the HRA 1998.

The appeal was dismissed.

The main question raised by the claimant was whether the automatic effect of s. 97(5) was contrary to Article 8 of the ECHR. It was common ground between the parties that Article 8 ECHR was engaged, and that the imposition of a N/O constituted an interference with that right. The issue was as to breach.

In arguing that there has been a breach of Article 8 ECHR, the claimant challenged the ‘automatic’ approach required of the magistrates’ court when imposing N/Os, and the lack of attention to his particular circumstances. He sought to persuade the court to answer two questions. First, before imposing a N/O, were the courts below required to conduct a proportionality analysis under Article 8 of the ECHR, that takes into account the individual circumstances of the sexual offender, in order to be compliant with the duty under section 6(1) of the HRA 1998? Second, if a proportionality analysis was conducted in the present case, which took into account the individual circumstances of the Claimant, would it have been disproportionate to impose an N/O?

The answer to the first question was no. The second question did not arise. The claimant’s argument was circular. The claimant sought a proportionality assessment; however, a proportionality assessment would necessarily involve a risk assessment to be conducted by the court before the imposition of a N/O. The risk cannot be properly assessed unless and until a N/O is imposed.

Section 97(5) of the SOA 2003 makes it plain that “[i]f on the application it is proved that the conditions in subsections (2) to (4) are met, the court must make a notification order”. The Divisional Court held that this left no discretion for the lower courts to consider the individual circumstances of the sexual offender if the three conditions are satisfied, or to conduct a proportionality analysis.

The essential issue to be determined concerned whether the ‘automatic’ imposition of a N/O strikes a fair balance. The case law which addresses the compatibility of notification requirements with Article 8 of the ECHR is clear that it does.

The court rejected the claimant’s case that the notification requirements and the MAPPA arrangements for assessing and managing risk should not apply without there being an assessment of each individual’s risk before he becomes subject to that regime. The requirement that he should become subject to notification so that (inter alia) ongoing monitoring and MAPPA risk assessment can take place involves the striking of a fair balance between, on the one hand, the Article 8 rights of the individual and the impact of the statutory requirements on him, and on the other, the state’s obligation to protect vulnerable individuals and potential victims in society.

That balance was not materially altered by the point that if the conviction had been obtained many years ago, the notification period would already have expired. That argument overlooked the precautionary principle and the fact that the offender has not been subject to assessment and management in the community under the UK regime for a period determined by the seriousness of the offence.

In the light of the court’s conclusions on the law, the second question posed by the claimant did not arise. The matters relied upon by the claimant did not begin to justify even a prima facie argument that he must be considered as someone who it can be assumed represents no risk. On the contrary, his conduct in deceiving the authorities over many years as to his lack of any notifiable convictions suggested the opposite. For the same reasons, the claimant’s further arguments under ss. 3 and 4 of the HRA 1998, issues 2 and 3, did not arise.

The claimant was sentenced in 1979 to life imprisonment for murder with a tariff of 15 years with a concurrent determinate sentence for robbery. The victim was a vulnerable lady of 66 years old who was set upon by the claimant, then 19, with three other youths when she was walking down the street. He was first released on licence in 2005 but was recalled 5 months later. He was released again in December 2017, having spent two periods in open conditions, but recalled for a second time some 7 months later.

As an indeterminate sentenced prisoner, the claimant’s re-release was considered by the panel, at an oral hearing on 20 June 2019 and on the papers on 24 July 2019. At the oral hearing the claimant was legally represented and gave evidence. The panel also heard evidence from two psychologists and the claimant’s offender supervisor and offender manager. Each of those professionals recommended release on licence with a risk management plan.

The application was granted.

The point which the Claimant submitted was arguable was a short one, namely that the approach set out in the reconsideration decision was too narrow. The decision was focused entirely on the rationality of the oral hearing decision and failed to consider the arguments made as to procedural fairness. Mr Brownhill sought on behalf of the claimant an order quashing the reconsideration decision and for the defendant to decide the reconsideration application afresh.

In the opening paragraph of the reconsideration decision, the application was referred to “on the basis that the [panel’s] decision was irrational.” The following paragraph refers to both limbs of rule 28(1) but there is no further express refence to procedural unfairness. That part of the reconsideration decision which is titled “The Relevant Law” only addresses the test for rationality. There was no reference to the third head of judicial review referred to in the latter case, namely procedural impropriety.

Paragraph 11 of the reconsideration decision stated:

“Misrepresentation of the alleged use of the “sex sites.” The applicant’s case was that he had been accessing a social networking website and had been targeted by a person who had tried to tempt him into using sites of concern.”

Reference is then made to other grounds going to irrationality and then at paragraph 15 this was said:

“Failure to explain why the panel rejected the recommendation of 5 professionals that the Applicant be released. There is nothing in this ground. The reasons are clearly set out at the conclusion of paragraph 7 and in paragraph 8.”

The ultimate paragraph went onto say that “…it is impossible to characterise the decision letter its reasoning and conclusions as ‘irrational’ within the definition set out above.”

It was accepted that there was a reference to misrepresentation of evidence in paragraph 11 but submitted that that was in the context of irrationality and in any event, there appears to be no conclusion on the issue. The notes of the oral hearing indicated that there was no evidence that the claimant had accessed the sites to which reference was made. In respect of paragraph 15, the claimant submitted that there is no proper explanation as to why the reasons were considered adequate, and just as there was an obligation on the panel to give sufficient reasons, so too was there such an obligation upon reconsideration.

Counsel for the claimant submitted that incorrectly recording evidence can amount to procedural unfairness, and in doing so relied upon the decision of Sir John Thomas PQBD and Cranston J in R (on the application of McIntyre) v Parole Board for England and Wales [2014] ACD 17. At paragraph 32 of the judgment it was stated:

“Given the powers of the Parole Board in relation to the liberty of the subject, there are, as this case illustrates, other circumstances where fairness makes it necessary for the chair to re-examine the notes by way of record to ensure that they accurately reflect what was said.”

The Court came to the conclusion that these points were arguable, and permission should be granted. Directions were to follow.

Senior lawyers at the Crown Prosecution Service (“CPS”) headquarters are re-examining every charge, conviction and sentence brought under the new legislation. Several cases are being re-listed so they can be overturned after being found to have been incorrectly prosecuted.

The CPS said that it is the first time it has ever launched a review of every charge under a specific piece of legislation. The move reflects concern over the new and widespread powers given to the state amid the coronavirus crisis.

The full piece can be read here.

The Prison Reform Trust submitted its evidence on COVID-19 to the House of Commons Justice Committee, part of its continuing efforts to scrutinise the Government’s response to managing the COVID-19 outbreak in prisons.

The full piece can be read here.

In a letter to the Government, Labour’s David Lammy, the shadow justice secretary, and Charles Falconer, the shadow attorney general, call for an emergency action plan to restart the “incapacitated” criminal justice system and for longer-term changes, including that the streaming of public court cases should become the norm during and after the coronavirus lockdown to create a more transparent criminal justice system.

The full piece can be read here.