This week’s Digest considers five judgments; two handed down by the Court of Appeal (Criminal Division) and three by the Divisional Court. The issue in Le Brocq was whether the trial judge had been right to make a wasted costs order against counsel. In O, the court considered whether convictions should be quashed some twelve years later on the basis that the offender had been a victim of trafficking. Barreto considered whether legislation prevented all uses of mobile phones while driving. In Francis, the Court offered guidance on the sufficiency of evidence in extradition matters. Finally, in Giles the issue was whether the Magistrates had been wrong not to hold a Newton hearing in circumstances where the prosecution had presented their case as being aggravated by virtue of s. 146 of the Criminal Justice Act 2003.
Le Brocq v The Liverpool Crown Court [2019] EWCA Crim 1398
The judgment, available here, was handed down by Lord Burnett of Maldon on 01.08.19.
A wasted costs order, made after the appellant’s comments in closing caused the judge to discharge the jury, was revoked. The judge had been wrong to conclude that the appellant’s comments, although worthy of criticism, could not have been rectified in the summing up and justified the discharge of the jury.
The appellant was the subject of a wasted costs order made pursuant to s. 19A of the Prosecution of Offences Act 1985 made following a trial in which he had appeared as defence counsel. The appellant gave a closing speech criticising the restrictions on the way that the defence were compelled to put their questions to the complainant, whose evidence was to be video recorded under s. 28 of the Youth Justice and Criminal Evidence Act 1999. He indicated that the complainant had not been properly tested in cross-examination, affecting the jury’s ability to evaluate her reliability. He went on to suggest that the complainant was sexually experienced and capable of fabricating sexual allegations against the defendant. The judge indicated that damage had been done by the appellant’s comments in relation to the s.28 procedure and his subverting of a ruling in relation to the complainant’s sexual behaviour. He took the view that the damage could not be rectified by further jury directions and therefore discharged the jury and made the wasted costs order.
The appeal was allowed, and the costs order revoked. There was no merit in the procedural errors pointed to by the appellant ([43] – [44]) or the submission that the costs of the wasted costs hearing were disproportionate to the costs allegedly wasted ([45]). However, the court held that the judge was wrong to conclude that the appellant’s comments on the complainant’s sexual history, although open to criticism, came within the scope of s. 19A; in any event any prejudice could have been remedied through the judge’s summing up ([47] – [60]). Further, although the appellant’s submissions in relation to the s. 28 procedure were unreasonable in the sense explained in Ridehalgh v Horsefield [1994] Ch 205, the inappropriateness could have been remedied by a short, tailored direction ([61] – [64]). Finally, the court concluded that the circumstances which confronted the judge after the appellant’s closing speech fell a long way short of justifying the discharging of the jury ([65] – [70]).
R v O [2019] EWCA Crim 1389
The judgment, available here, was handed down by Thirlwall LJ on 31.07.19.
Two convictions from 2007 were quashed on the basis that the applicant, at the time the offences were committed, was a victim of trafficking; the court was satisfied that there was a sufficient causal connection between the trafficking and the offences and that, had the 2007 CPS guidance been considered, the prosecution would have been stayed as an abuse of process.
The applicant (O) entered guilty pleas on 28 July 2008 to two counts; one of possession of a false identity document with intent contrary to s. 25(1)(a) of the Identity Cards Act 2006 and one of attempting to commit fraud contrary to s. 1(1) of the Criminal Attempts Act 1981. The applicant sought an extension of time of 3,457 days for leave to appeal and permission to adduce fresh evidence pursuant to s. 23 of the Criminal Appeal Act 1968. In essence, O’s case was that she was a victim of trafficking at time the offences were committed and, as such, her convictions should be quashed.
The appeal was allowed, and O’s convictions quashed. The court found that it was necessary and expedient to admit O’s fresh evidence pursuant to s. 23(1); the evidence established, in the court’s view, that O was indeed a victim of trafficking at the time the offences were committed ([19] – [20]). There were three questions that then had to be asked in a case like this: (1) was there reason to believe that O had been trafficked; (2) was there evidence that the offences were committed as a result of compulsion arising from the trafficking; and (3) did the prosecutor consider whether it was in the public interest to prosecute, in accordance with CPS guidance ([29]; R v M(L), B(M) and G(D) [2010] EWCA Crim 2327, [2011] 1 Cr. App. R. 12 followed). All of these questions were to be answered in the affirmative; the evidence adduced by O was sufficient to establish she was a victim of trafficking ([30]); the offences took place in the context of a life of sexual exploitation and repeated trafficking ([31] – [37]); and the prosecution would have been stayed as an abuse of process on the basis of the law post the ratification of the European Convention on trafficking and on the basis of the 2007 CPS guidance ([38] – [42]). Finally, the court considered that refusal of leave to appeal would cause O substantial justice ([43] – [44]) and there was sufficient explanation of the delay to warrant the granting of the required extension of time ([45] – [48]).
DPP v Barreto [2019] EWHC 2044 (Admin)
The judgment, available here, was handed down by Thirlwall LJ on 31.07.19.
The Road Vehicles (Construction and Use) Regulations 1986 and s. 41D of the Road Traffic Act 1988 did not prohibit the use of all functions of hand-held mobile phones while driving; rather the legislation prohibits only the making and receiving of calls and the use of interactive communication functions.
Louis Mably QC appeared for the DPP.
The respondent had been convicted in the magistrates’ court on the basis that he had used his mobile phone to film the scene of a road traffic accident as he drove past. The Crown Court overturned the conviction, holding that taking photographs or film with a mobile phone did not amount to “using” it the purposes of reg.110(1)(a) of the Road Vehicles (Construction and Use) Regulations 1986 (“the Regulations”) and s.41D of the Road Traffic Act 1988 (“the 1988 Act”). Rather, it concluded that, pursuant to reg.110(6)(a), the offence would only be committed if the mobile phone was being used for “making or receiving a call or performing any other interactive communication function”. The questions stated for the Divisional Court were whether (1) “using” a hand-held mobile phone for the purposes of s.41D and reg.110(1)(a) was restricted to using an interactive communication function; and (2) the Crown Court had been right to conclude that the respondent’s conduct did not amount to “using” his mobile phone for the purposes of s.41D and reg.110(1)(a).
The Court answered both questions in the affirmative. The legislation did not prohibit all uses of a hand-held mobile phone while driving; rather, it prohibited only the making and receiving of calls and the use of interactive communication functions. The respondent’s activity therefore did not breach reg.110(1)(a) and the Crown Court had been right to quash his conviction. This followed from an analysis of the Regulations. The Regulations did not define the term “mobile phone”. When they came into force only a very few mobile phones had cameras or could connect to the internet, and they were aimed at preventing motorists from making and receiving calls and sending and receiving texts when driving. Regulation 110(1)(a) prohibited driving while using a hand-held mobile telephone, and, taken together, reg.110(1)(b) and reg.110(4) prohibited driving while using a hand-held device that “performs an interactive communication function by transmitting and receiving data”. It was plain from the context that “performs” meant “is being used to perform”, and therefore it was only the use of the device for interactive communication functions that would bring it within reg.110(1)(b).
The Court noted that the instant decision was not to be taken as a green light for people to make films as they drove. Someone who took photographs or film while driving would not be in breach of reg.110, but such conduct might be cogent evidence of careless or dangerous driving, and the same could be said of any other use of a hand-held mobile phone while driving.
Francis v Government for the United States of America [2019] EWHC 2033 (Admin)
The judgment, available here, was handed down on 26.07.19 and was given jointly by Lord Burnett of Maldon and William Davis J.
The court dismissed an appeal against a district judge’s decision to send her case to the Home Secretary, who ordered her extradition to the US. The district judge’s conclusion on Art. 3 was inevitable on the evidence the appellant had adduced; allegations regarding prison conditions had to be properly evidenced. Further, the appellant failed to demonstrate that the district judge’s conclusion on Art. 8 was wrong.
The appellant was charged in the USA with negligent homicide and the unauthorised practice of a profession; she had allegedly caused the death of a young woman through a cosmetic procedure and had no medical training. Before the district judge, it was argued that the prison conditions in which the appellant would be likely to find herself fell short of the standard required by Art. 3 ECHR and that extradition would give rise to a disproportionate interference with the Art. 8 ECHR rights of her and her daughter. The district judge accepted assurances given by the US district attorney and was therefore satisfied that the appellant would not be processed in conditions that violated Art. 3, that she would be detained in conditions which were satisfactory and that, should her relatively mild psychiatric condition deteriorate, it could be managed. As to Art. 8, the district judge heard from a psychologist who accepted that living with her maternal grandmother was likely to be successful in maintaining the child’s normal development. The district judge carried out the necessary balancing exercise but concluded that those factors were outweighed by the public interest in meeting the UK’s treaty obligations.
The appeal was dismissed. The real complaint was in respect of the district judge’s conclusion on the Art. 3 issue; the court upheld the judge’s conclusion; it was not only open to him, but was also “inevitable on the basis of the evidence he heard” ([25]; see [23] – [25]). The court also dismissed the challenge to the district judge’s conclusion on Art. 8; the appellant had failed to demonstrate that his conclusion was wrong ([26] – [29]). In connection with the sufficiency of evidence on the Art. 3 point, the court noted:
“[this case] illustrates the need for challenges based on prison conditions to be properly evidenced. The test articulated by the Strasbourg Court (substantial grounds for believing there is a real risk of treatment contrary to article 3) calls for clear evidence relating to the specific circumstances that a requested person will face. That might include direct evidence of inspection and independent reports themselves evidentially based. The evidence available in this case fell short; and there was nothing beyond doubts (genuinely held, we accept) about whether the assurances given regarding the detention conditions the appellant would encounter would be honoured.” ([30])
DPP v Giles [2019] EWHC 2015 (Admin)
The judgment, available here, was handed down by Hickinbottom LJ on 25.07.19.
It would be extremely rare for a court considering a guilty plea to find that a case presented by the prosecution as being aggravated by sexual orientation discrimination under s. 146 Criminal Justice Act 2003, where that was disputed by the defence, did not require a Newton hearing because the existence of that factor would not materially affect the sentence. In any event, such a hearing was likely to be necessary because of the requirement under s.146(3)(b) to state in open court that homophobic circumstances had been present in an offence.
This was an appeal by way of case stated against a decision of the Magistrates sitting at North Tyneside to sentence the Respondent for an offence contrary to s. 47 of the Offences Against the Person Act 1861 without holding a Newton hearing. In failing to do so, they had failed to determine whether (i) the Respondent had demonstrated hostility towards the victim of the offence based on his actual or presumed sexual orientation and/or (ii) the offence was motivated towards persons who are of a particular sexual orientation. The prosecution had presented the case on the basis that it was aggravated by virtue of s. 146 of the Criminal Justice Act 2003; i.e. that the Respondent had demonstrated or had been motivated by hostility because of the victim’s presumed or actual sexual orientation. The Respondent contested that basis of plea. There were two questions for the Court:
- Is it open to a court to determine that a case presented by the prosecution as aggravated by virtue of section 146, which is disputed by the defence, does not require a Newton hearing, where it is of the opinion that the existence of the aggravating factor would not make a significant difference to the sentence in the context of the case as a whole?
- If the answer to question 1 is “Yes”, was the court right to make that determination in the circumstances of this case, being mindful that a Newton hearing would require the injured party to give evidence and be cross-examined?
The answer to the first question was a “highly qualified” yes: “it is in theory open to a court to determine that a case presented by the prosecution as aggravated by virtue of section 146, which is disputed by the defence, does not require a Newton hearing, where it is of the opinion that the existence of the aggravating factor would not make a material (rather than “significant”) difference to the sentence” ([24]; see also [15] – [23]). The Court continued: “[h]owever, where the evidence is such that it leaves open a finding that homophobic circumstances (or other circumstances set out in section 146) may be made out (and thus the statutory aggravation for sentencing purposes must be applied), it is difficult to conceive of circumstances which, in practice, the aggravation will be necessarily immaterial such that a Newton hearing to find the facts will not be required”. ([24]). In any event, such a hearing was likely to be necessary because of the requirement under s.146(3)(b) to state in open court that homophobic circumstances had been present in an offence. Thus, in this case, the Magistrates had been wrong not to hold a Newton hearing. The sentence was quashed and remitted back to the Magistrates to re-sentence the Respondent in accordance with the principles set out in the judgment.
Three men awarded £414,000 for malicious prosecution by police
Three men who were charged with the murder of a private investigator have been awarded a total of £414,000 damages after winning a malicious prosecution action against the Metropolitan Police Service. A high court judge in London ruled on Wednesday that Jonathan Rees and Glenn Vian should each receive £155,000, and Garry Vian should get £104,000.
The full piece can be read here.
Police chief: cuts must be reversed to fix ‘social fabric’ and stop gangs
Austerity-driven cuts that have left disadvantaged children vulnerable to gangs must be reversed to repair Britain’s “social fabric” and reduce crime, a police chief has said. In a damning indictment of the effects of years of austerity on crime, Jon Boutcher, the chief constable of Bedfordshire, called for police to be freed up to focus on hardcore criminals and not victims of social “circumstance”.
The full piece can be read here.
Minister: keep suspects anonymous if there is a reputation to protect
The justice secretary has suggested that the anonymity of suspected sex offenders and others accused of serious crimes should be respected until they are charged if they have a reputation to protect.
The full piece can be read here.
