Weekly Digest: 6 April 2020

On 3 December 2018 in the Crown Court at Leicester, the appellant pleaded guilty to conveying a list B article into or out of prison and eight counts of the unauthorised transmission of an image or sound by electronic communication from within a prison (“the telephone offences”). On 16 May 2019 at the same venue the appellant was convicted of an offence of conspiracy to pervert the course of justice contrary to section 1 Criminal Law Act 1977. The count was in the following terms:

“Joshua Horne and Ryan Parry between 7 November 2017 and 1 July 2018 conspired to pervert the course of public justice by interfering with the witnesses in a case namely Liam Roberts and Barry Roberts”

On 23 May 2019, the appellant was sentenced to 3 years’ imprisonment for the offence of conspiracy to pervert the course of public justice, with a consecutive term of 9 months’ imprisonment for conveying a list B article and concurrent sentences for the 8 telephone offences. The overall sentence, therefore, was 3 years 9 months’ imprisonment. The appellant appealed against his conviction on the count of perverting the course of justice and applied for an extension of 2 days in which to renew his application for leave to appeal against sentence, following refusal by the single judge.

The appeal against conviction was allowed and the conviction quash.

Appeal against conviction

In essence, it was submitted by the appellant that the judge erred in admitting the evidence of Ryan Parry’s guilty plea, given this was alleged to have been a “closed conspiracy” consisting solely of the appellant and Ryan Parry. In those circumstances it was submitted that it was inevitable that the jury would have concluded, however the judge directed them, that Parry’s plea demonstrated the appellant’s guilt.

The Court considered it material to note that the appellant’s case was that he did not know what Ryan Parry had been doing or saying when he contacted Liam Roberts or Barry Roberts. He accepted that he had made telephone calls to these two witnesses but he maintained that he was trying to ensure that they told the “truth”, namely that Liam Roberts had not seen the appellant driving and he was trying to ensure they were not pressurised into providing an account that falsely implicated him. Liam and Barry Roberts were cross-examined on the basis that they were lying about what they claimed he had said during the course of the telephone calls.

The Court had no doubt that the introduction of Ryan Parry’s plea would have tended significantly to close down the central issue relevant to this count, namely whether the appellant entered into this conspiracy with Ryan Parry, which was the charge he faced. The latter could not have been guilty of this offence unless the appellant was also guilty, and, considered with a degree of realism, Parry’s involvement entirely depended on the participation – indeed, the direction – of the appellant.

Furthermore, once the conviction was admitted into evidence, it was not admitted as a mere plea of guilty but instead it included all the detail in the count. Notwithstanding the judge’s directions in which he sought to limit the evidential impact of this evidence, there was a high risk that the jury would have drawn the conclusion that Ryan Parry’s admission that he had conspired with the appellant meant inevitably that the appellant had conspired with him. Given the fact on which the conviction was based was that Ryan Parry and the appellant conspired together—and it takes at least two conspirators to make a conspiracy—then the conviction proved just that: Ryan Parry and the appellant were both guilty of conspiracy. [22]

There was undoubtedly significant other evidence against the appellant, but he was nonetheless acquitted of the other serious charges of attempted murder, causing grievous bodily harm with intent and attempting to cause grievous bodily harm with intent. The Court was not sufficiently persuaded that he would necessarily have been convicted of this particular charge if the jury had not heard of Parry’s guilty plea, the force of which we have analysed above. This important evidence should have been excluded under section 78 Police and Criminal Evidence Act 1984 on the grounds that its admission would have such an adverse effect upon the fairness of the proceedings that it ought not to be admitted. In the result, the appeal must be allowed and the conviction should be quashed. [24]

Appeal against sentence

The appellant submitted that the starting point for time served for the telephone offences should have been 24 November 2017 when the applicant was arrested and remanded in custody, on the basis that the telephone offences were “related offences” for the purpose of s. 240ZA of the Criminal Justice Act 2003 viz-a-viz the counts on which he was acquitted. The appellant submitted that the telephone offences were ‘related’ to the attempted murder/grievous bodily harm offences for which he was acquitted. In the absence of any direct authority on the point, the appellant pointed to the approach of the courts to the question of joinder under s. 4 of the Indictments Act 1915 and the Criminal Procedure Rules which permit joinder where the offences charged are “founded on the same facts”.

The Court noted that the test for joinder as identified above is well-established and non-contentious but saw no justification for its cross-application to s. 240ZA which, first, is not in identical terms and, second, addresses the technical area of when and to what extent time spend on remand in custody should count towards a sentence of imprisonment (or detention). The words of s. 240ZA should be interpreted literally. An offence is related to another if it is founded on the same facts or evidence. Whether an offence is founded on the same facts or evidence is then to be determined on an analysis of the facts of the case. [29]

Whilst the telephone offences were properly joined by reason of having a common factual origin, the Court did not consider that they were founded on the same facts or evidence as the attempted murder/grievous bodily harm offences for the purpose of s. 240ZA. This conclusion accords with public policy and common sense: it would be wholly counter-intuitive if time should be counted from a date before the relevant offences were even committed. As a result, the appeal against sentence was dismissed.

Issues and decisions

1. Whether TA 2000 s. 13 created an offence of strict liability.

The common law presumption that mens rea was an ingredient of a statutory offence unless it had clearly been excluded by Parliament was a strong one and could not lightly be displaced. However, it was also clear that the court had to consider the words of the statute and other relevant circumstances, and had to ascertain whether Parliament – by express words or by necessary implication – had made clear its intention to create an offence, commission of which did not require mens rea. The case law revealed differences of opinion as to whether the question should be approached by starting with the presumption and then looking to see if it had been excluded, or by starting with the statutory wording and other indications of Parliamentary intent and then applying the presumption if there was no clear intention to exclude. However, it mattered not which approach was adopted: the terms of the statute and all other relevant factors and circumstances had to be considered and, if there was no clear Parliamentary intention to create an offence which did not require mens rea, then the presumption would apply (see [48] of the judgment).

In the present case, there were five considerations which, taken together, pointed clearly to a Parliamentary intention to create by TA 2000 s 13 an offence which did not require mens rea. First, the language of s 13 was entirely clear and unambiguous: a person committed the offence if he wore, carried or displayed an item of clothing or an article in such a way or in such circumstances as to arouse the relevant reasonable suspicion. That required that the person who was wearing, carrying or displaying the item or article in question had to act deliberately, in the sense that he had to know that he was wearing, carrying or displaying that item or article. It further required that the wearer was, in fact, wearing, carrying or displaying the item or article in question in a way, or in circumstances, capable of arousing the necessary reasonable suspicion. However, nothing in the section required any knowledge on the part of the wearer of the import of the item or article, or of its capacity to arouse the requisite suspicion (see [49], [50] of the judgment).

Second, it was important to consider the purpose of s. 13 and the mischief it aimed to prevent. The mischief at which it was aimed was conduct which led others reasonably to suspect the wearer of being a member or supporter of a proscribed organisation, that being conduct which gave rise to a risk that others would be encouraged to support that proscribed organisation or to view it as legitimate and also gave rise to a risk of public disorder resulting from a hostile reaction on the part of others. The risk arose whatever the understanding or intention of the wearer. A person who committed the actus reus of the s. 13 offence by his conduct created the risk whether or not he intended to do so or knew that he was doing so. There was good reason for Parliament to have criminalised such conduct. Accordingly, conduct which fell within s. 13 was conduct which aroused reasonable suspicion of membership of or support for an organisation involved in violence designed to influence the government or intimidate the public (see [52], [53] of the judgment).

Third, although not conclusive, it was relevant that predecessor legislation, dating back to 1936, had been expressed in materially similar terms. Therefore, Parliament had had ample opportunity to amend the legislation if it had wanted to indicate a requirement of mens rea (see [55] of the judgment).

Fourth, far from doing that, Parliament had recently amended s. 13 by adding a further offence in similar terms. Again, that was not conclusive, but was a relevant consideration. So, too, was the fact that at the same time, Parliament had introduced a new TA 2000 s. 12(1A), which required an element of recklessness, but it had made no change to the wording of s. 13(1). The amendments showed Parliament drawing clear and deliberate distinctions between the ingredients of related but distinct offences (see [56] of the judgment).

Fifth, while case law made clear that the inclusion of an express element of mens rea in other offences created by the same Act was not conclusive, it was relevant to take into account that TA 2000 did also create offences which required mens rea. The distinctions drawn between the various offence-creating provisions had to be deliberate and were indicative of an intent to create in s. 13 an offence which did not require mens rea (see [57] of the judgment).

It was not established that absurd or unfair consequences flowed from treating the s. 13 offence as one which did not require mens rea. Parliament had clearly intended by s 13 to create an offence which did not require mens rea and it is not open to the court to interpret the section as if it had been drafted in different terms. The Crown Court had been correct so to conclude (see [60], [61] of the judgment).

2) Whether the strict liability offence in TA 2000 s 13 was compatible with art 10 of the European Convention on Human Rights.

There could be no doubt but that the restriction was prescribed by law. The section was expressed in clear terms which provided legal certainty. There was not uncertainty because of the suggested absurd consequences, or because a person could not know how to regulate his behaviour (see [63] of the judgment).

It was also clear that the restriction imposed by s. 13 pursued a legitimate aim: the restriction was one which was necessary in a democratic society in the interests of national security and public safety, and/or for the prevention of disorder or crime, and/or for the protection of the rights of others. No one could doubt that action to prevent the activities and/or the spread of terrorist organisations was necessary. Section 13 was a necessary part of the appropriate mechanism to achieve that aim (see [64] of the judgment).

The appellants had not been able to point to any unequivocal statement of principle to the effect that a restriction on freedom of expression could only be justified where the expression included an incitement to violence and there was authority to the opposite effect. Therefore, the submission that the s 13 offence was a disproportionate interference with art 10 rights because it did not require the impugned expression to incite or encourage violence would be rejected (see [68], [69] of the judgment).

Section 13 struck a fair balance between freedom of expression and the need to protect society by preventing terrorism. There was not substantial interference with the appellants’ art 10 rights. No great burden had been placed upon them to regulate their behaviour so as to avoid conduct which others would reasonably suspect to indicate membership of or support for a proscribed organisation (see [72] of the judgment).

Accordingly, the s. 13 offence was compatible with art 10. It imposed a restriction on freedom of expression which was required by law; was necessary in the interests of national security, public safety, the prevention of disorder and crime, and the protection of the rights of others; and was proportionate to the public interest in combating terrorist organisations (see [73] of the judgment).

The Crown Court’s decision had not been wrong in law and each of the questions posed by the Crown Court would be answered ‘yes’ (see [74] of the judgment).

The Claimant was sentenced to a DTO for 18 months. By section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000, a youth court has power to make an order, the effect of which is to delay (by one month or two months, depending on the length of sentence) the date when a young offender is released from the custodial part of a DTO. Such an order was made in the case of this claimant, delaying his release by 2 months. He claimed judicial review, contending that the order was unlawful. His claim came before the court for an urgent rolled-up hearing of the application for permission and, if permission be granted, of the claim. At the conclusion of the hearing the Court announced that permission to apply for judicial review was refused, and that the Court would give its reasons in writing at a later date. These are the Court’s reasons.

X was convicted of two offences of encouraging terrorism, contrary to section 1(2) of the Terrorism Act 2006. He had published messages on social media which were indicative of an extreme right-wing ideology and were likely to be understood by members of the public as encouraging the commission of acts of terrorism. He was aged 17 when he committed the offences and when he pleaded guilty to them, but 18 when he was sentenced on each charge concurrently to a DTO for 18 months. As a result of his convictions he is subject to the notification requirements under Part 4 of the Counter-Terrorism Act 2008.

One month before the mid-point of the custodial term, X was advised by letter that the Secretary of State intended to apply to a youth court, pursuant to section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000 (“the PCC(S)A”) to delay his release by two months. He was provided with a copy of guidance published by the Youth Justice Board which stated that such an application may be made where there has been particularly bad custodial behaviour.

The two grounds of judicial review argued before the Court were:

1. The youth court erred in law by admitting evidence that was not provided to the court or to X;
2. The court took into account an irrelevant consideration and/or exercised its power for a purpose extraneous to the statutory purpose.

The remedy sought was an order quashing the decision of the judge and granting such other remedy as the court sees fit.

The second ground was based on a broad submission that the youth court has no power to make an order under section 102(5) in any circumstances other than those contemplated by the published guidance. If that general challenge fails, the first ground makes a specific challenge to the exercise of the power in the circumstances of this case.

The Court refused permission to apply for judicial review.

Ground 2

Section 102 of the PCC(S)A sets out a general rule as to when an offender is to be released from the custodial part of his sentence, and then sets out a number of exceptions. Subsection (5) is expressed in unqualified terms. No restriction or limitation is placed upon the power of the youth court to order late release, other than the requirements that the order must be made on an application by the Secretary of State for that purpose, and that the order must delay release by either one month or (in the case of longer DTOs) two months. If Parliament had wished to set specific criteria for the exercise by the youth court of that power it could, and in in the Court’s view would, have done so. In particular, if it had wished to confine the use of that power to cases in which the offender had demonstrated exceptionally poor progress and/or exceptionally bad behaviour whilst in custody, it could have said so. In the absence of any express qualification or limitation, Parliament had conferred on the youth court an unfettered discretion to make an order for late release. That being so, resort to external aids to the interpretation of section is neither necessary nor appropriate.

The youth court must of course act rationally, and the court anticipated that applications and orders pursuant to section 102(5) would continue to be rare. In the present case, however, the judge was not prevented from hearing and granting the application merely because it was explicitly made for reasons not expressly referred to in the guidance. She was, unarguably, entitled to have regard to the material before her showing both an increased risk to the public and a realistic prospect that the risk would be reduced by further rehabilitative work which could most effectively be carried out in custody. [47]

The statutory purposes of sentencing identified in section 142 of the Criminal Justice Act 2003, which include the protection of the public, do not apply to an offender who is aged under 18 when convicted: the criminal court must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young persons, and must also have regard to the offender’s welfare. It does not follow that the protection of the public is irrelevant to the exercise of the power to make an order for late release. [48]

The Court concluded that there was no arguable basis on which the second ground of appeal could succeed.

Ground 1

The youth court, when hearing an application for an order pursuant to section 102(5), is not confined to receiving formal evidence which would be admissible in a criminal trial. The material which the court considers must be relevant, and the court must give careful consideration to the weight which can properly be given to information and material which would not satisfy the requirements of admissibility in a criminal trial. In doing so, the court must have in mind the consequences of an order: a further period in custody for the offender in circumstances where had hoped, if not expected, to be released at the mid-point of his custodial term; and a commensurate reduction in the period for which he will be supervised in the community. The offender must be given an opportunity to respond to the allegations made against him to and to give evidence if he wishes to do so. [51]

The Court was unable to accept the submission that the judge was wrong to have any regard to the gist. The intelligence which was summarised in the gist was obviously relevant to the application for an order for late release. The judge had no more information than did X. The limitations of the gist were obvious, and X could make submissions about that. The judge was clearly, and correctly, conscious of the need to give careful thought to the weight she attached to the gist. X could if he wished have given evidence contradicting or explaining the contents of the gist. The judge was in those circumstances unarguably entitled to take the gist into account in reaching her decision. [52]

In the event, the judge gave only “some weight” to the intelligence summarised in the gist. She made it clear that she reached her decision on the basis of the combination of the gist and the other factors about which Mr Davis had given evidence. The combination of features which the judge identified in her judgment was striking and worrying. There was a clear basis for assessing X as presenting a risk to the public, notwithstanding that he had behaved well in custody, and a clear basis for assessing that further rehabilitative work in custody would likely reduce that risk. The judge concluded that an order for late release was necessary and proportionate. That conclusion was rationally open to her on the basis of the evidence and information she considered, and there was no arguable basis on which she could be said to have made any error of law. [53]

Examines the operation of necessity in the context of sexual harm prevention orders (SHPOs). Reviews key aspects of the SHPO regime, the importance of R (McCann) v Manchester Crown Court and the subsequent development of the necessity requirement. Considers a reformulation of the necessity test for SHPOs, whether an order can be necessary but likely to be ineffective, and the difficulty of restricting internet access.

Citation: CrimLR 2020, 5, 411-428

The British Transport Police (BTP) have accepted that it was incorrect in prosecuting a woman under the Coronavirus Act 2020 for “loitering between platforms” at Newcastle Central station and failing to speak to police officers who questioned her about what she was doing. The woman was fined £660 at North Tyneside Magistrates’ Court on 30 March 2020. The case will be relisted as a technicality but BTP will not seek a prosecution when it is, meaning that it will effectively be quashed.

The full piece can be read here.