Welcome to the 6KBW College Hill Weekly Digest for 4 September 2017. This week’s highlights include Court of Appeal cases on the admission of fresh evidence, the conduct of disciplinary hearings in private, and the first consideration of the Care Act 2014.
Fresh evidence: R v Moore [2017] EWCA Crim 1304
Judgment (available here) handed down by the Court of Appeal (Criminal Division) (Sharp LJ, Sweeney J and Sir Richard Henriques) on 1 September 2017. Simon Denison QC and Jacob Hallam QC appeared for the Crown Prosecution Service.
In December 2013, the applicant was convicted of the murder of Robert Darby, who was killed in August 2005. His co-accused, Martin Power, was acquitted. The applicant was sentenced to life imprisonment, with a minimum term of 18 years. He applied three years and three months out of time for an extension of time, permission to appeal against conviction, and to rely upon fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968 (“the 1968 Act”). The applicant seeks permission to appeal on two grounds:
(1) The conviction is unsafe in light of the unreliability of the principal prosecution witness, Abdul Ahmed, as demonstrated by fresh expert evidence; and
(2) Other fresh evidence from a number of witnesses shows that Power alone committed the Crime.
Ground 1
The Court found that the reconstruction evidence afforded no ground for allowing the appeal. The Court was not persuaded that it would have been admissible at trial, and there is no reasonable explanation for its production now rather than at trial. Therefore, it is not arguable that this is fresh evidence that is capable of undermining the eyewitness evidence of Mr Ahmed.
Ground 2
This ground was said to be the centrepiece of the application before the court. Section 23 of the 1968 Act states: “the Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to:
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
The critical issue was whether the evidence appeared to the Court to be capable of belief. For the reasons advanced on behalf of the respondent, the Court reached the clear view that the further evidence, insofar as it implicates Power, was not capable of belief. They could attach no weight to the evidence of the anonymous witness, and another witness’s second hand account of what he had been told was not credible. The Court found it extraordinary that for several months that witness did nothing with the information he was said to have received. Other witnesses’ evidence was similarly undermined. The Court said there was a pervasive “smell” about the evidence, echoing the attempt at trial to falsely implicate Power as the stabber.
Therefore, the Court declined to admit the new evidence, and the second ground was unarguable. In all those circumstances, it was not appropriate to grant the extension of time sought in relation to both grounds. The Court added that a letter sent by the applicant’s previous lawyers to the Registrar after the trial, to indicate that there were no arguable grounds of appeal, and to forewarn of the possibility of arguable grounds coming to light in the future, did not dilute the requirements for an appeal to be mounted within the time limits. Such a letter did not provide a platform for arguing for an extension of time.
Therefore, the applications were refused.
Private disciplinary proceedings: Zai Corporate Finance Ltd v AIM Disciplinary Committee of the London Stock Exchange Plc [2017] EWCA Civ 1294
Judgment (available here) handed down by the Court of Appeal (Civil Division) (Sir James Munby P, Lewison and Lindblom LJJ) on 30 August 2017.
The issues in this appeal arose in the context of disciplinary proceedings before the respondent, brought by the London Stock Exchange Plc (the interested party) against the appellant. The dispute was whether, as the appellant contended, the hearing should be in public or whether, as the respondent directed, it should be in private. The appellant sought judicial review of that decision, but was refused by the High Court.
The Court of Appeal found that the rule in the relevant handbook, that gives the appellant “the right to ask for such hearing to be conducted in public”, does not give the appellant an absolute right to demand a hearing in public. This would be an absurd interpretation, given the many reasons that a hearing may need to be conducted in private, to the extent that the London Stock Exchange may be forced to drop a disciplinary action if forced to do so in public. For example, the very question under examination in the proceedings may be whether certain information should have been made public.
The Court upheld the High Court’s finding that the decision made by the respondent was “rational and fair and cannot be impugned”. Moreover, both the construction of the rule in the handbook and the decision of the respondent were compliant with Article 6 of the ECHR (putting to one side the question of whether it was even engaged). As the Strasbourg court said in B v United Kingdom, P v United Kingdom [2001] 2 FLR 261, “a literal interpretation of the terms of Article 6.1 concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of Article 6.1, which is to secure a fair hearing.”
Therefore, the Court dismissed the appeal and refused the appellant’s application to quash the decision of the respondent that the hearing be in private.
Care Act 2014: R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308
Judgment (available here) handed down by the Court of Appeal (Civil Division) (McFarlane, Bean and Thirlwall LJJ) on 1 September 17.
The appellant sought judicial review of the respondent’s decision to reduce his personal budget, and to revise his care and support plan pursuant to the Care Act 2014 (“the 2014 Act”). The effect was to reduce his budget from £1651 to £950 per week. The High Court dismissed the claim, and the appellant appealed that decision. This was the first case in which the Court of Appeal considered the 2014 Act.
At the first hearing the appellant had offered four grounds for judicial review, all of which were dismissed. The appeal was sought on three grounds:
(1) Ground 2(c) – the respondent failed to consider the effect of the appellant being expected to spend three periods of two hours per day alone upon his ability to engage in social activities, thus breaching s. 1 of the 2014 Act;
(2) Ground 3 – the respondent did not have regard to the need to ensure that decisions about the appellant were made having regard to all the appellant’s individual circumstances, and thus did not comply with its duty under. 1(3)(d) of the 2014 Act; and
(3) Ground 4 – the respondent failed to evidence its contention that the proposed rates for personal assistants providing care to the appellant were reasonable or compatible with its obligations under the 2014 Act.
In relation to ground 2(c), the Court found that the judge was entitled to make the findings of fact that he did on this point. Regarding ground 4, the Court did not consider it unlawful for the respondent to decline to set the personal budget at a level that would enable the appellant to pay his carers more than the local going rate, even though some of his carers are not prepared to work for that going rate. The statutory guidance makes clear that a personal budget should reflect local market conditions, and the judge was entitled to accept the evidence presented by the respondent about those conditions.
Ground 3 was said to be at the heart of the appellant’s case. The appellant contended that the changes in the terms and conditions of his personal assistants created a substantial risk that his existing team would no longer work for him. The continuity of that existing team over more than 17 years had contributed to the appellant’s wellbeing, and the prospect of losing them posed a significant risk to his health. Ultimately the ground failed as the Court upheld the judge’s finding of fact that there was not sufficient evidence that the existing team of carers will in fact break up. This rendered other issues relating to this ground, such as whether a change would be beneficial to the appellant, academic.
Therefore the appeal was dismissed. The reduction in the appellant’s personal budget was reached at the end of a lawful process.
Law Commission Consultation: Sentencing Code
On 27 July 2017, the Law Commission published its draft Sentencing Code, and an accompanying consultation paper.
The Commission’s aim, in this project, is to introduce a single sentencing statute that will act as the comprehensive source of sentencing law – the “Sentencing Code”.
According to the Law Commission, this Code would:
- Help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions, and remove the need to refer to historic legislation;
- Help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions, and remove the need to refer to historic legislation;
- Save up to £255 million over the next decade, by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;
- Rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;
- Remove the unnecessary layers of historic legislation; and
- Allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.
The Sentencing Code would not, according to the Commission:
- Alter the maximum sentences for criminal offences;
- Subject any offender to a harsher penalty than that which could have been imposed at the time of their offence;
- Extend minimum sentencing provisions or create new minimum sentences;
- Reduce judicial discretion; or
- Replace sentencing guidelines or the work of the Sentencing Council.
Over the last three years, working alongside the Office of the Parliamentary Counsel, the Law Commission has produced a Bill consolidating sentencing procedure law.
The consultation paper asks a number of questions concerning the decisions taken in the drafting of this Bill, as well as asking for thoughts on further proposed technical changes to the law. It also asks consultees to critically examine the draft Sentencing Code to ensure that the consolidation accurately reflects the current law, except where amendment has specifically been made in furtherance of the consolidation.
The draft Sentencing Code and the full consultation paper can be found here.
Responses can be made by email to sentencing@lawcommission.gsi.gov.uk; or by post to Lyndon Harris, Law Commission, 1st Floor, Post Point 1.54, 52 Queen Anne’s Gate, London, SW1H 9AG.
Other news
Court orders that child at heart of religious fostering row should live with her grandmother (30 August 2017)
The girl’s previous placement with a Muslim foster family was the subject of some controversy following much-criticised reporting in the Times and the Daily Mail. The London Borough of Tower Hamlets has rejected a report in the Times that said the foster family did not speak English, and said that it always intended to place the five-year-old in a relative’s permanent care. The anonymised court order states that the child’s mother says they are of christian heritage, and the maternal grandmother with whom she will now live is a non-practising muslim. The order states that there was “no culturally matched foster placement available” but that the “guardian has no concerns as to the child’s welfare and she reports that the child is settled and well cared for by the foster carer.”
Government insists nitrous oxide still illegal, despite failed prosecutions (31 August 2017)
The Crown Prosecution Service is considering the implications of two failed prosecutions for crimes linked to laughing gas, under the Psychoactive Substances Act 2016. One case in Southwark Crown Court collapsed last week when the court heard that an expert witness for the prosecution defined nitrous oxide as not being covered by the Act. This followed a similar result in Taunton Crown Court, where a judge found that it was “plainly an exempted substance”. A subsection of the Act exempts medical products that are defined as “restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action.” The judge in last week’s case stressed this was not a “test case” and offered no precedent. It is reported that about 50 people have already pleaded guilty to supplying nitrous oxide under the legislation.
Ministry of Justice report: young black people nine times more likely to be jailed than young white people (1 September 17)
The MoJ report, overseen by David Lammy MP, found that black people are four times more likely to be incarcerated than white people, rising to nine times for under 18s. Although the overall numbers of young people in custody has fallen sharply in England and Wales since 2005, the number from BAME backgrounds has fallen at a slower rate than those who are white. The report also suggested a higher rate of gang affiliations as one possible factor influencing sentencing decisions. Gang concerns featured in 34% of pre-sentence reports on young black men, compared with 21% for those from mixed backgrounds, 11% from Asian backgrounds, and 5% from white ethnic backgrounds.
