This week’s Digest considers four judgments. The first was handed down by the Supreme Court and concerned an Enhanced Criminal Record Certificate and rights under article 8 ECHR. The remaining three are judgments of the Court of Appeal (Criminal Division). The first of these addressed whether the entrapment principles which apply to state actors apply to non-state actors; the second whether a conviction for a drugs offence was unsafe after the law on the treatment of victims of human trafficking had changed; and the third whether findings of contempt of court were rendered unsafe by virtue of the fact that the appropriate procedure was not followed.
R (AR) v. Chief Constable of Greater Manchester Police and anor [2018] UKSC 47
The judgment is available here. Lord Carnwath gave the judgment, with which the rest of the court agreed.
The issue in this appeal was whether the disclosure of an acquittal without full explanation of the evidence at trial on an Enhanced Criminal Record Certificate was a proportionate interference with the appellant’s rights under article 8 ECHR. The Supreme Court held that it was; in the instant case, it was proportionate to disclose the acquittal when the appellant was applying for a job as a lecturer. The Supreme Court also commented on the proper role of an appellate court in reviewing a lower court’s decision as to proportionality; an appeal is a review, not a rehearing, and the test is whether the judge erred in principle in reaching their conclusion.
In January 2011, AR was acquitted of rape by the Crown Court. He was a married man with children and was a qualified teacher of previous good character. Following his acquittal, he applied for a job as a lecturer and, in the course of that application, sought an Enhanced Criminal Record Certificate (“ECRC”). The ECRC was issued with details of the rape charge for which he had been tried and acquitted. AR objected to that disclosure on the grounds that there had been no actual conviction and the ECRC failed to give a full account of the evidence at trial and how the jury came to its conclusion.
The first-instance judge and the Court of Appeal held that the disclosure was reasonable, proportionate and no more than necessary to secure the objective of protecting the young and vulnerable in society. The main issue before the Supreme Court was whether the admitted interference with the appellant’s article 8 ECHR rights due to the disclosure was justified. There was also a question as to the proper role of an appellate court where the issue was a lower court’s finding of proportionality.
The Supreme Court unanimously dismissed the appeal. The leading authority on this issue is a decision of the Supreme Court in R (L) v. Comr of Police of the Metropolis [2010] 1 AC 410, in which it was held that disclosure of L’s alleged inadequate parental supervision was a proportionate interreference with her article 8 rights; the significance of the information in respect of risk to children outweighed its prejudicial effect. Regarding the procedural aspect of the complaint, that AR was not consulted, was rightly rejected; the respondent had taken into account the potential impact on the appellant’s employment prospects. On the substantive effect of article 8, i.e. that the interference could not be justified unless the ECRC reflected a positive view of the appellant’s guilt, the Court rejected the submission that it is necessary or appropriate for officers to conduct a full appraisal of the evidence at trial. The judge had been right to accept that the respondent was entitled to his view, namely that the allegations were ‘not lacking substance’ and ‘might be true’. It was a matter for him to assess whether the evidence was of sufficient weight in the article 8 balance and, in this case, he was right to decide that the evidence was no more than necessary to meet the need for which the ECRC was established.
Regarding the proper role of an appellate court in approaching proportionality, Lord Carnwath noted that the purpose of an appeal is to enable the reasoning of the lower court to be reviewed and errors corrected; it is not an opportunity for a rehearing. The question is whether the judge erred in principle or was wrong in reaching the conclusion he did.
R v. TL [2018] EWCA Crim 1821
The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 31.07.18.
The issue in this case was whether the judge, in staying proceedings in the Crown Court against TL, had erred in applying the entrapment principles articulated by the House of Lords in R v. Loosely [2001] UKHL 53; [2001] 1 WLR 2060 to non-state actors. The Court of Appeal concluded that the judge had erred; the test was essentially whether the conduct of the non-state actor would compromise the court’s integrity.
On the application of the defence at trial, proceedings against TL were stayed as an abuse of process. TL faced one count on the indictment, namely that he attempted to meet a child following sexual grooming, contrary to s. 1(1) of the Criminal Attempts Act 1981. The essence of the allegation was that he communicated via WhatsApp with a person he believed to be a girl of 14 years old and arranged for that girl to attend his flat and take part in a threesome with his girlfriend. TL was in fact communicating with an adult male, Mr U, who, a member of a group of ‘Predator Hunters’ had pretended to be that 14-year-old girl. The application relied on the entrapment principles set out in the House of Lords decision in R v. Loosely [2001] UKHL 53; [2001] 1 WLR 2060.
The prosecutor appealed against the judge’s terminating ruling, pursuant to s. 58 of the Criminal Justice Act 2003, contending that (a) the judge erred in concluding that the principles articulated in Loosely could be applied, without modification, to non-state actors and (b), in any event, if the activities of Mr U had been undertaken by the police, there would have been no abuse of process.
Loosely was a case which concerned police conduct and the use of undercover officers, in which it was held that:
‘[t]he court was required … to balance the need to uphold the rule of law by convicting and punishing those who committed crimes and the need to prevent law enforcement agencies from acting in a manner which constituted an affront to the public conscience or offended ordinary notions of fairness.’
The judge’s approach allowed no distinction between the conduct of Mr U, a private citizen, and agents of the state in considering whether to stay proceedings as an abuse of process. Since he erred in that respect, the judge’s conclusion could not be supported. The Court endorsed the approach of Golding J in Council for the Regulation of Health Care Professionals v. The General Medical Council and Saluja [2006] EWHC 2784 (Admin); [2007] 1 WLR 3094, [81]: ‘so serious would the conduct of the non-state actor have to be that reliance upon it in the court’s proceedings would compromise the court’s integrity’. Mr U had committed no offences in his course of conduct which led to TL’s arrest. Thus, the case was far removed from a case of incitement and there was nothing in Mr U’s conduct which would make it inappropriate for the prosecution to proceed. In any event, the Court concluded that if police officers had engaged in the same conduct as Mr U, an application to stay proceedings as an abuse of process would have failed.
R v. GS [2018] EWCA Crim 1824
The judgment, available here, was handed down by Lord Justice Gross on 31.07.18.
The issue in this appeal was whether a conviction for a drugs offence was rendered unsafe by the fact that, as a victim of human trafficking, the applicant had been acting under duress. The application for leave failed; although the Court accepted that the applicant was a victim of human trafficking, there was no basis on which it could be said her conviction was unsafe. Her account of being under duress had, essentially, been rejected at trial and there was no material change in the applicant’s circumstances.
In November 2007, in the Crown Court at Isleworth, the applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of class A (cocaine). Evidence was adduced at trial that, when stopped after entering the UK on a flight from Trinidad, an x-ray revealed approximately £37,000 worth of drugs inside her body. At trial, the applicant’s defence was that at all relevant times the applicant was acting under duress, involving the threat of serious injury or death to her and/or her young son, in the event she refused to comply with a demand to smuggle drugs. Post-conviction, on an appeal from the Secretary of State’s refusal to grant asylum, the First Tier Tribunal (“FTT”) made a finding to the effect that the applicant was a Victim of Trafficking (“VOT”). After that finding, the Salvation Army, the Competent Authority (“CA”), decided that the applicant was a VOT for the purposes of forced criminality.
The applicant applied for an Extension of Time (“EOT”) of approximately 9 years and 7 months for leave to appeal against conviction and to rely on fresh evidence pursuant to s. 23 of the Criminal Appeal Act 1968. That evidence was in two parts: (i) the findings of the FTT and the note of the CA; and (ii) medical evidence, going to the applicant’s mental state. In the Court’s view, there were three issues to be decided on this application:
- Is this a change in the law case, so that the grant of leave requires substantial injustice to be shown?
- Is the fresh evidence admissible?
- Was the applicant’s conviction unsafe?
Issue 1: a change in law case?
In the Court’s opinion, this was a change of law case for three reasons. First, there had been a material change in the legal recognition of the rights of VOTs between 2007 and 2018. In 2007, whatever the position ought to have been, there was only very limited awareness of such rights. Second, the detailed provisions of art. 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw 16.5.2005 and art. 8 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims were not in force in this jurisdiction in 2007. Third, the CPS guidance on the charging of VOTs for criminal conduct had changed starkly between 2007 and 2013. Thus, if, but only if, the applicant could demonstrate an arguable case as to the safety of her conviction, the applicant would not fail at the hurdle of exceptional leave.
Issue 2: fresh evidence
In respect of the findings of the FTT and the note of the CA, the Court found it expedient and in the interests of justice for that evidence to be received. However, it refused to accept the medical evidence for three reasons. This was principally because there was no good reason why the evidence could not have been obtained for trial, given that duress was a central issue. Moreover, the experts went beyond the province of expert witnesses and strayed in to the territory of a jury. Finally, the court also had doubts, as had the experts, as to the difficulties of postulating on the applicant’s mental health retrospectively.
Issue 3: the safety of the applicant’s conviction
Against this background, the Court rejected the applicant’s argument that her conviction was unsafe for five reasons:
- Making every allowance for the applicant being only a drugs mule, she committed a serious offence and its gravity should not be minimised.
- The applicant’s essential factual account was tested before the jury, by way of her defence of duress, and was rejected.
- Although the Court accepted the FTT decision and the CA note, that conclusion was of limited assistance in assisting the true levels of compulsion affecting the applicant. The applicant’s account was essentially untested before the FTT and the finding that she was a VOT does not itself suffice to render a conviction unsafe.
- It simply cannot be said that there were no reasonable alternatives available to the Applicant to escape from that compulsion; although she assisted the authorities, she had herself resumed contact with those whom she alleged to be compelling her.
- The applicant’s culpability was not extinguished such that a prosecutor, applying the full code test, would conclude that a prosecution was not in the public interest.
Accordingly, the application for leave and the appropriate EOT failed.
Re Yaxley-Lennon (aka Tommy Robinson) [2018] EWCA Crim 1856
The judgment, available here, was handed down on 01.08.18 by Lord Burnett of Maldon CJ.
The issue in this case was whether failure to follow the appropriate procedure in Part 48 of the Criminal Procedure Rules in contempt proceedings meant that the findings of contempt had to be quashed. It was held that the failure gave rise to safeguards being overlooked that occasioned real prejudice to the appellant. The matter was ordered to be reheard.
Louis Mably QC appeared as Advocate to the Court.
The appellant, better known as Tommy Robinson, was committed to prison for a total of 13 months on 25 May 2018 for breach of an order made under s. 4(2) of Contempt of Court Act 1981 (“the 1981 Act”). The order was made by HHJ Marson QC sitting at Leeds Crown Court during a trial proceeding before him. In doing so, the judge activated a suspended committal order of three months detention imposed by HHJ Norton at Canterbury Crown Court for contempt of court. Both of those orders arose because the appellant was filming in the precinct of the respective courts and purported to comment on ongoing trials after the jury had retired for deliberation, the appellant being particularly concerned with the ethnicity or religion of the defendants in both cases. Part 48 of the Criminal Procedure Rules (“CrimPR”) govern the procedure to be followed when a person is alleged to have acted in contempt of court. The appellant contended that the Crown Court both at Leeds and at Canterbury proceeded in breach of Part 48 of the CrimPR, and accordingly that both decisions should be quashed.
The Canterbury matter
In respect of this finding, the appellant drew attention to the fact that he had not been served with a written statement containing particulars of the alleged contempt, pursuant to CPR r. 48.7. He had been served with four witness statements dealing with the alleged facts of the offence. At the time the matter was adjourned before the judge, however, the appellant’s legal team had made no complaint about the clarity of the allegations the appellant faced. This was, so it emerged, a tactical decision made by the appellant’s legal team and, thus, the appellant could not now rely on it in an attempt to overturn a finding of contempt.
The appellant also took issue with the language used by the judge when passing the suspended committal order. In the Court’s view, however, this occasioned no prejudice to the appellant and, as such, provided no good grounds for quashing the order made by the judge.
The Leeds matter
The central criticism made by the appellant was that the judge was wrong to proceed to deal with contempt as quickly as he did. In the Court’s opinion, this point was well made; in contrast to the procedure followed in Canterbury, where the appellant had over a week to secure representation and prepare his response to the allegations, in Leeds, he had barely a few hours. Such haste occasioned procedural safeguards to be overlooked, such that the finding of contempt had to be quashed. In summary, there were four reasons for that decision:
‘(i) It was inappropriate to proceed immediately on the motion of the court to deal with the alleged contempt after immediate steps had been taken to remove the offending video from the internet. An adjournment was necessary to enable the matter to proceed on a fully informed basis; in any event
(ii) The failure to comply with Part 48 of the CrimPR resulted in there being no clear statement, orally or in writing, of the conduct said to comprise a contempt for contravening the section 4(2) order in place;
(iii) It was unclear what conduct was said to comprise a breach of that order and the appellant was sentenced on the basis of conduct which fell outside the scope of that order;
(iv) The haste with which the contempt proceedings were conducted led to an inability of counsel to mitigate fully on the appellant’s behalf’ ([77]).
The matter was ordered to be reheard before a different judge. The Court also offered the following guidance, at [80] – [81], about the approach to sentence in contempt cases:
‘The maximum sentence available for the breach of a section 4(2) order is two years’ imprisonment. In the short time available to counsel in Leeds he located one authority, Attorney General v Harkins [2013] EWHC 1455 (Admin), but it does not lay down any general principles. Of greater assistance would have been R v Montgomery [1995] 2 Cr. App. R. 23, in which the Court of Appeal at paragraphs 28D to 29A, laid down guidance in respect of the matters likely to influence the level of punishment appropriate in cases of contempt of court. The particular facts of that case concerned the refusal of a witness to give evidence but the factors material to punishment can readily be adapted and applied to cases involving breach of reporting restrictions. They would usually include:
(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;
(b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;
(c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;
(d) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;
(e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;
(f) the scale of sentences in similar cases, albeit each case must turn on its own facts;
(g) the antecedents, personal circumstances and characteristics of the contemnor;
(h) whether or not a special deterrent was needed in the particular circumstances of the case.
Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences:
(a) Trials may have to be abandoned irretrievably;
(b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense;
(c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;
(d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.’
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The full piece can be read here.
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The full piece can be read here.
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The full piece can be read here.
