This week’s Digest considers three judgments; one from the Court of Appeal (Criminal Division) and two from the High Court. The first considers whether the conduct of the judge in a trial for bringing prohibited items into prison deprived the appellant of a fair trial. The second asks whether a man convicted of manslaughter could move back into his family home when members of his victim’s family live nearby. The third addresses whether a delay by the Parole Board in reviewing the appellant’s detention was contrary to his Article 5(4) ECHR right to have such a review upon expiration of his tariff period.
R v AA [2018] EWCA Crim 2191
The judgment of Hamblen LJ, dated 26 September 2018, is available here.
The appellant appealed against a conviction for bringing prohibited items into prison. She had been sentenced to 18 months’ imprisonment. The prosecution case was that the appellant had visited her long-term partner in prison and brought him cannabis, two mobile phones, a SIM card, and two phone charging cables. The appeal was granted on the sole ground that the conduct of the judge at first instance had deprived the appellant of a fair trial through repeated interventions in such a manner as to demonstrate an adverse view of the appellant’s evidence. The appeal was allowed and the conviction set aside.
The appellant’s case relied on four particulars. Firstly, though in the absence of the jury, the judge made comments indicating to the appellant that he believed she was guilty. He told the appellant’s counsel in open court to give his client “robust advice” due to the strength of her evidence and it would be “too late to say anything realistic on her behalf once the jury returned”. The appeal court found that it was not appropriate for the judge to indicate his views. The appellant was in the charge of the jury. The judge’s role was to be a neutral umpire. By indicating that he had an adverse view of her case, she may have thought that because the judge had formed the view he had indicated she was not going to get a fair trial. It may also have weighed on her mind when she gave evidence and thereby been a handicap to the fair giving of that evidence.
Secondly, the judge withdrew bail and remanded the appellant in custody the night before she was due to give evidence despite the prosecution not seeking a remand. Hamblen LJ found this decision to be questionable, especially seeing as the appellant was given no time to make arrangements for the care of her 14-year-old daughter. The court also emphasized that this decision is likely to have reinforced an impression that the appellant was not going to get a fair trial and to have provided a further handicap to the fair giving of her evidence.
Thirdly, he berated the appellant’s daughter after requiring her to apologise to him for being rude the previous day. The transcript showed that he threatened to send her to the cells for facial reactions to the evidence, speeches or summing up. The appeal court found this deeply inappropriate.
Fourthly, when the appellant was giving her evidence the judge posed questions more akin to a cross-examination than clarification. The appeal court reiterated authority that particular care must be taken for judges to not intervene unnecessarily in examination in-chief. Such an intervention could negatively impact the jury’s view of the defendant.
The appeal court concluded that the overall impact of these matters may well have handicapped the appellant in the giving of her evidence, and thus that the appellant did not receive a fair trial. The conviction was set aside.
R (Begley) v Secretary of State for Justice [2018] EWHC 2714 (Admin)
The judgment, available here, was handed down by Kerr J on 26 October 2018.
On his release from prison on licence the Claimant, convicted of manslaughter, wanted to move back to the family home where his wife and daughter lived. Members of the victim’s family lived nearby and objected. The National Probation Service (NPS), represented by the Defendant, set an exclusion zone for the three-year remainder of the Claimant’s sentence that included his family home. The Claimant challenged this decision by way of judicial review on two grounds. Firstly, in making its decision the NPS should have formally assessed what was in the Claimant’s daughter’s best interests, and secondly, the exclusion zone was disproportionate. The application was dismissed. The NPS struck a fair balance between the competing interests.
The Claimant, his family, and the victim’s family all live in Harrogate. The Claimant had been sentenced in July 2015 to six years’ imprisonment for manslaughter and six months consecutive for assault occasioning actual bodily harm. He was therefore due to be released at the halfway point, on 1 October 2018. The previous year his victim’s next of kin made representations to the NPS, arguing both that the Claimant might be subject to reprisals if he moved back to the area and that were he to encounter members of his victim’s family great emotional harm to them might result. They requested an exclusion zone comprising the whole of North Yorkshire. The NPS rejected this but accepted that Harrogate should be within the zone, pointing out that the victim’s partner worked at the hospital, was often required to travel outside the hospital on outreach work, did much of her shopping in Harrogate, and was in fear of seeing the Claimant. The NPS decided that the Claimant could only go to his family home with a set access route and set dates and times, as authorised by his probation officer.
The Claimant challenged this decision on two grounds. First, it was submitted that the NPS should have assessed his daughter’s best interests under s.11 of the 2004 Children Act. The judge rejected this as a misreading of the statute. Unlike s.1 of the Children Act 1989, in a case where a family court has to determine a question with respect to a child’s upbringing, s.11 of the 2004 Act does not necessarily make the child’s interests paramount, especially not in the present context. The NPS were right to enquire of the local children’s services if there was any reason why the Claimant should not go back to live with his daughter, but having established this, the NPS proceeded properly in assuming that a resumed family life was desirable and weighing this in the balance. There was no further dimension to be explored looking specifically at the Claimant’s daughter or wife.
Secondly, the judge noted that this was not a case where the daughter was barred from seeing the Claimant. They could both visit each other. The NPS has a wide margin of appreciation to set licence conditions for released prisoners, as well as extensive experience in doing so, and it was not the role of the court to interfere unless the decision was manifestly ill-founded. The Claimant was wrong to argue for the court to undertake a merits based assessment of the NPS’s decision. The NPS was right to consider both the low risk of a traumatic encounter coupled with the high probability of distress at such a prospect.
The application was dismissed. The Claimant’s conditions, including the exclusion zone, were upheld but would remain under review for the remaining three years and three months of his sentence.
R (Bate) v Parole Board of England and Wales [2018] EWHC 2820 (Admin)
The judgment, available here, was handed down by Holroyde LJ on 26 October 2018.
The Claimant sought judicial review of the allegedly unlawful delay on the part of the defendant Parole Board in its review of his detention. Until April 2017 he was serving a sentence of imprisonment for public protection (IPP) imposed in 2008. The issue in the appeal was whether the Parole Board had acted unlawfully in deferring the Claimant’s hearing from June 2016 to April 2017. The appeal succeeded on two grounds. There was an unlawful failure in violation of Article 5(4) ECHR to provide a parole hearing within a reasonably speedy interval and there was an unlawful failure to direct expedition in the listing of the Claimant’s deferred hearing.
The court agreed that in order to discharge the state’s obligations under Art 5(4) to a prisoner serving a sentence of IPP the Parole Board must review his detention a short time interval before the expiration of the tariff period. It is for the court to make its own decision as to the reasonableness of the length of that interval, without being restricted to a Wednesbury style review. A generally reasonable time period is 14 months.
The Claimant’s hearing was intended to be held in February 2016, 14 months after the last substantive review in December 2014. In the event a hearing was held on 22nd June 2016, where a decision was made to defer until a later date. A final hearing was held on 22nd March 2017. The period of deferral was about nine months and the eventual hearing took place about two years and two months after the previous substantive review.
Holroyde LJ held that this delay breached Article 5(4). A lack of resources is not a good enough reason to deprive an individual of their Article 5(4) rights. The Parole Board overshot its own guidelines for listing hearings by four months. The fact that the Claimant had admitted drug use prior to the 22nd June 2016 hearing made it necessary to re-assess risks involved in releasing him, but was not a reason not to list a speedy hearing. The Claimant was entitled to damages to compensate him for the period from 1st March to 22nd June 2016.
Further, while the Claimant’s admission as to his drug use was a good reason for the Parole Board to agree to defer any further hearing on 22nd June 2016, the eventual review in March 2017 was held too late. There was no assurance given to the Claimant that the review would be held before then, and so he could not have a legitimate expectation that this would be the case, however, the communications between the parties were to the effect that a hearing would be listed in October 2016 or very soon after. The Claimant was entitled to recover damages for breach of his Article 5(4) rights between 1st November and 22nd March 2017. He was also entitled to damages to delayed liberty – had the review been held in October, as it should have been, it was probable that he would have been released.
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