This week’s Digest examines two cases. The first considers whether a tactical decision not to apply to have the jury discharged meant that the defendant’s conviction for robbery was unsafe. The second examines whether a guarantee given about the prison conditions in which the appellants would be held meant that their extradition to Bulgaria would be lawful.
R v Davies [2018] EWCA Crim 327
The judgment, which is available here, was handed down by Hamblen LJ on 1 March 2018.
The Court of Appeal held that a conviction for robbery was safe where defence counsel had made a tactical decision, with the defendant’s agreement, not to apply to discharge the jury after the victims named a person relied upon by the defendant in his alibi as an additional suspect.
The prosecution relied upon a number items of evidence to link the defendant to an armed robbery. The prosecution relied on the following evidence against D: his fingerprints were on the passenger door of a car seen leaving the scene; his DNA was found on the inside of a pair of gloves found in the car; fibres from the gloves matched those found on tape used to restrain the victims; cell site analysis connected his mobile telephone with the area in which the robbery occurred. The defendant gave a no comment interview.
In his defence statement the defendant claimed that he had travelled to the area in which the robbery took place with a friend (L) to buy drugs. They met another person (S). The defendant claimed that he found the gloves when he was cleaning his car, tried them on, but discarded them. Two of the victims gave evidence. S was known to them and one stated that he thought S was the perpetrator, but could not be sure. The other claimed to have recognised S from his gait. Defence counsel expressed concern that both victims had named S given that it was in the defendant’s defence statement that he had met with him that day. After discussion with the defendant, counsel decided not to apply to discharge the jury. Both S and L had been interviewed but not charged in relation to the robbery, and counsel considered that there could be a tactical advantage in drawing out that fact in evidence to explain why they would have been reluctant to come forward as alibi witnesses. The judge directed the jury to disregard the identification evidence.
The Court of Appeal held that the failure to apply to discharge the jury did not result in inadmissible prejudicial evidence being presented to the jury. The judge’s direction to the jury told them to disregard the identification evidence. Furthermore, the tactical choice made by counsel in conjunction with the defendant was one that was reasonable to make. The defendant was effectively represented by counsel.
Georgiev v Bulgaria [2018] EWHC 359 (Admin)
The judgment, which is available here, was handed down by Hickinbottom LJ on 28 February 2018.
The Divisional Court considered whether assurances given about the condition of prisons in Bulgaria were sufficient to permit the lawful extradition of the appellants. It was held that the assurances provided by the Bulgarian authorities were sufficient and that there was no real risk of the appellants suffering inhuman or degrading treatment upon surrender.
The Divisional Court observed that it is an uncontroversial proposition that those being held in Bulgarian prisons are generally at risk of being subjected to inhuman and degrading treatment contrary to Article 3 of the ECHR as a result of the prison conditions there. In respect of the appellants, however, the Bulgarian authorities gave specific assurances as to the treatment they would be accorded if surrendered, which would ensure that they would not be subjected to any treatment that breaches Article 3. The appellants contended, however, that the court could not be satisfied that the assurances would be fulfilled.
The Divisional Court held that on the basis of the assurances given by the Bulgarian authorities there was no real risk of the appellants or any one of them suffering inhuman or degrading treatment upon surrender. The court was satisfied that the assurances, if fulfilled, would result in there being no such risk; that the assurances had been given in good faith; that there was a sound objective basis for believing that they would be fulfilled (and the court considered that there was no real risk that they would not be fulfilled); and their fulfilment would be capable of being verified.
Chief coroner says officer’s “cab rank” approach to burials is unjustified
The chief coroner of England and Wales has said the controversial “cab rank” policy of one of his senior officers is over-rigid and unjustified ahead of a judicial review later this month. He stated that her failure to respect Jewish and Muslim requirements for quick burials was in breach of the Human Rights Act.
The full piece can be read here.
Judges told to limit observers if witness has to remove veil
The amended Equal Treatment Bench Book states that judges should restrict the number of observers allowed into court when defendants or witnesses are compelled to remove their veil to give evidence. It also suggests that court artists should be banned from drawing those required to lift their veil and that limited screening should be provided – so that only judge and jury are given a clear view.
The full piece can be read here.
‘Right to be forgotten’ claimant wants to rewrite history, says Google
The claimant, referred to only as NT1, was convicted of conspiracy to account falsely in the late 1990s and wants Google to remove results that mention his case, including web pages published by a national newspaper. He has launched a legal bid to remove some search results about his criminal conviction in the first “right to be forgotten” case in the English courts
The full piece can be read here.
