This week’s Digest considers five cases, four of which were handed down by the Court of Appeal (Criminal Division) and one by the Divisional Court. The issue in the first of the former was whether the retraction of evidence by the complainant made the Appellant’s convictions unsafe; in the second, the Court considered, inter alia, whether a direction on consent was appropriate in the circumstances where the Appellant was convicted of various sexual offences; the third considered the scope of the doctrine of deception as to identity and the place of qualifications therein; and the fourth was an appeal against sentence imposed for various health and safety offences. Finally, the Divisional Court judgment considers the meaning of “issued” within the meaning of s. 127(1) of the Magistrates’ Court Act 1980.
R v SB [2019] EWCA Crim 565
The judgment, available here, was handed down by Lord Justice Davis on 03.04.19.
The issue in this appeal was whether the retraction of previous statements by the complainant, the Appellant’s granddaughter, rendered the Appellant’s convictions unsafe. The appeal was dismissed; it was the complainant’s retraction that was demonstrably unreliable and there was no reason to doubt the veracity of her original evidence.
In 2016 M, the Appellant’s granddaughter, who was then aged 15, alleged that she had been sexually abused by the Appellant when she was a child. She claimed that he had touched her private parts and digitally penetrated her vagina. An ABE interview took place in which M described the events in considerable detail. The Appellant was subsequently charged with four counts of assault of a child under 13 by penetration. He was convicted on all counts and sentenced to 12 years’ imprisonment with an extended licence period of one year. Four weeks after sentencing, M made a written statement retracting as false all her previous complaints of sexual abuse by the Appellant. She said that the alleged incidents had not taken place and that she had made them up to seek attention. The Appellant appealed on the basis that in light of that retraction, M’s evidence at trial should be regarded as wholly unreliable and, accordingly, his convictions could not stand. The prosecution submitted that it was the retraction evidence which was wholly unreliable.
The appeal was dismissed. M’s retraction was demonstrably unreliable for the following reasons: (a) her allegations in the ABE interview were detailed, compelling and consistent; it was difficult to credit that a 15-year-old girl could maintain such an account if it was all false; (b) she had maintained that account up to and including at trial; (c) she must have known throughout that her allegations were very serious; (d) M’s mother claimed that she contacted the police officer in overall charge of the case after M told her that the allegations were false, but there was no record of her doing so; (e) M was never told by the police that she had to go to court; (f) in her ABE interview, she had volunteered comments about conversations with her grandmother concerning her grandfather. If untrue, that ran a high risk of being exposed as such; (g) M had made consistent complaints to her mother, counsellor and to the police, which were maintained at trial and adhered to in cross-examination; (h) at no point had she indicated that she wanted to withdraw her allegations prior to sentence; (i) her suggestion that police told her that the case would not go to court was utterly implausible. Although the reality of a long sentence could sometimes be a belated prompt to tell the truth, it was not so in the instant case given the evidence. Accordingly, there was no proper basis for rejecting M’s original evidence and the Appellant’s conviction was safe.
R v Clifford [2019] EWCA Crim 545
The judgment, available here, was handed down by Lady Justice Rafferty on 02.04.19.
The Appellant was convicted of a number of sexual offences and appealed against conviction on the basis that the judge had failed to give a direction regarding consent, and his summing-up and jury directions were generally deficient. The Appellant also sought to rely on fresh evidence that purported to show he was elsewhere when the offences were committed. The appeal was dismissed; a direction on consent was not required since the issue arose neither in the parties’ submissions nor the evidence and, generally, the judge’s summing-up and directions were unimpeachable. A further application to adduce fresh evidence was rejected on the basis it was no different to that proffered at trial.
The Appellant had been a publicist in the late 1970s and early 1980s. The convictions related to specimen offences against four complainants, aged between 15 and 19 at the time. He was arrested in 2012 and denied any non-consensual sexual activity. Alongside evidence from the four complainants, the Crown called several other women as bad character witnesses, describing the Appellant’s promises to secure them film opportunities, and sexual conduct that had taken place in his office. The judge created a schedule setting out the testimony of the additional witnesses and stating which alleged offences each witness’s testimony might support. Counsel for both sides reviewed the proposed jury directions before the judge gave them to the jury. The Appellant was convicted of eight offences and sentenced to eight years’ imprisonment. He died during the present proceedings, but his daughter was given permission to pursue the appeal. She sought leave to appeal on the basis that the judge gave no direction as to consent, and the summing-up and subsequent jury directions were both deficient. In addition, she sought leave to rely on fresh evidence.
The Court dismissed the appeal. Regarding the direction on consent, a judge should only leave to the jury an approach not advanced by either side if there was a proper evidential basis for it and there was none in this case. The evidence was of compulsion applied to extract sexual gratification; there was no evidence on which the jury could reasonably have concluded that any of the complainants had consented or that C might have believed that they had. In respect of the judge’s summing up and jury directions, the Appellant’s criticisms were unfounded. The judge had clearly stated that distress shown by a witness might not be a reliable indicator of whether their complaint was genuine. The distillation of the witnesses’ evidence into a schedule was not an approbation of the Crown’s case; it reduced the evidence into an easily-followed document and set out what it was capable of achieving. There had been no misdirection regarding propensity: in the context of the case, the fact that a heightened sexual appetite did not, without more, equate to guilt was so obvious that it did not have to be pointed out. As for contamination, C’s counsel had chosen to mention his autobiography to the jury but not to explore passages from it. That had been a tactical decision and it was an unattractive argument to now complain about the judge’s direction in relation to the autobiography, which had been inevitable given the way in which C had advanced his case. The judge had been entitled to give the directions that he had done. Finally, the applications to adduce fresh evidence were rejected. The new evidence aligned with the evidence at trial.
R v Melin [2019] EWCA Crim 557
The judgment, available here, was handed down by Mrs Justice Silmer on 02.04.19.
The issue in this appeal was whether as a matter of law, following R v Richardson [1998] 2 Cr App R 200, deception as to qualification could vitiate consent. The Court held that there were some cases where an individual’s qualification was inextricably bound to their identity such that it could. The Court went on to quash one of the Appellant’s convictions on the basis that the judge had been wrong to reject a submission of no case to answer in respect of that count; there was not sufficient evidence to suggest that any remark made by the Appellant as to his qualifications had an operative effect on her decision to receive treatment from him.
The Appellant was convicted of two offences contrary to s.20 of the Offences Against the Person Act 1861 and was sentenced to four years’ imprisonment on each count concurrently; he had administered Botox injections for cosmetic purposes to three women, each on two occasions. Those whose complaints formed the basis of each offence charged suffered very serious harm following the second injection. The Crown’s case at trial was that the Appellant had lied about his medical qualifications such that each woman consented to treatment on the basis they believed he was qualified. The judge rejected a submission of no case to answer which was based on two grounds: (i) a deception as to qualification is insufficient to vitiate consent and does not, as a matter of law, amount to a deception as to identify and as there was no evidence as to the nature, purpose or quality of the act, consent could not have been vitiated; and (ii) the evidence taken at its highest was not sufficient for jury properly directed to convict. Those grounds were repeated before the Court of Appeal.
The appeal was allowed in part. Regarding the first ground of appeal, it did not follow from R v Richardson [1998] 2 Cr App R 200 that deception as to qualification could not also constitute deception as to identity; in the Court’s view, “deception as to a person’s identity as a doctor where that it is an integral party of his or her identity, can as a matter of law vitiate consent. That is different to what happened in [Richardson] and does not amount to including qualifications within this definition in the sense referred to in [Richardson]” ([31]; Smith and Hogan (15th Edition), p. 672 was also cited with approval). The real question in this case was then whether the judge erred in his assessment of the sufficiency of the evidence. The court held that in respect of one of the complainants, Mrs King, the judge had erred; in her case, there was no representation by the Appellant as to his medical qualifications before the first treatment. There was before the second; however it was doubted whether a remark made by the Appellant 30 seconds before the injection could have had any operative effect as to her decision. Thus, the conviction on that count was set aside. The key difference was, in the case of the other woman, representations had been made before the first treatment as to the Appellant’s qualifications. The sentence was adjusted accordingly, and a term of two years’ imprisonment substituted for the remaining count.
Faltec Europe Limited v Health and Safety Executive [2019] EWCA Crim 520
The judgment, available here, was handed down by Lord Justice Gross on 28.03.19.
This was an appeal against a £1.6m fine imposed for three health and safety offences. The Court allowed the appeal in part; in respect of the outbreak of Legionnaires’ disease, the judge had erred in categorising the risk of level A harm as high in light of evidence the risk of death was only 4 in 10,000. However, in all other respects the judgment of the Recorder was upheld. The Court also offered guidance on the appropriate format for skeleton arguments in criminal appeals.
The Appellant pleaded guilty to three health and safety offences. The first two offences had concerned outbreaks of Legionnaires’ disease in and amongst the company’s employees and the local population around its place of business. The third offence concerned an explosion in a flocking machine on the company’s premises which caused injury to an employee. The company was given a total fine of £1.6 million, consisting of a £800,000 for the Legionnaires’ disease incidents and £800,000 for the flocking machine incident. The appellant appealed against sentence.
Legionnaires’ disease
The judge had not erred in categorising culpability as “right at the top end of medium”. The bacteria had developed in the “dead legs” of the company’s cooling tower, but no effective action had been taken by the company to remove them despite communication from the Respondent. The judge had erred, however, in concluding that were a high likelihood of Level A harm arising; the relevant figure for deaths from an exposure to legionella was 4 in 10,000. Although there was no precise evidence as to Level A harm risked other than death, it was logically inescapable that if the risk of death was 4 in 10,000, there must be a risk of other Level A harm in an additional percentage. The correct categorisation for the likelihood of Level A harm was medium. The judge had not erred in relation to his evaluation of aggravating and mitigating features or the company’s financial position. Thus, given that the court’s view of likelihood of Level A Harm arising was different from that of the judge, the provisional amount of the fine in respect of the Legionaries offences was £570,000. After discount for the guilty plea, the fine imposed would be £380,000, concurrent of each count.
Flocking machine incident
There was no basis to criticise the judge’s categorisation of the flocking machine incident as one of high culpability; it was an accident waiting to happen. Similarly, his conclusion on harm and assessment of mitigating factors and could not be impugned. Thus, the fine of £800,000 would be upheld.
In addition, the Court offered guidance on the appropriate format for skeleton arguments in criminal appeals: “we would favour a maximum length of 25 pages, presented in not less than 12 point font and 1.5 line spacing, subject to leave from the Presiding Lord Justice or Judge of the Court; anything longer would automatically be rejected by the Court office on receipt. We draw these observations to the attention of the Criminal Procedure Rules Committee for its consideration” ([155]).
Brown v Director of Public Prosecutions [2019] EWHC 798 (Admin)
The judgment, available here, was handed down by Lord Justice Irwin on 28.03.19.
A charge is “issued” within the meaning of s. 127(1) of the Magistrates’ Court Act 1980 when the document comprising the charge is complete and it is in the form ready for service. Where service is unduly delayed after issue, the appropriate remedy was abuse of process; prosecutors would be wise to ensure that both issue and service are effected within the 6 months required by s. 127(1).
The issue in this case was the meaning of the term “issuing” within the meaning of s. 127(1) of the Magistrates’ Court Act 1980 (“the 1980 Act”). The Appellant, who had been convicted of one summary offence of speeding, contended that proceedings cannot be “issued” unless and until the relevant document – i.e. the written charge – “is in the public domain at least to the extent that it has left the relevant prosecutor’s office”. The Magistrates had found that the charge had been issued within the 6 months required by s. 127(1) of the 1980 Act, although it had been served after that deadline had passed and rejected the Appellant’s submissions regarding the construction of s. 127(1). By way of case stated, the Appellant appealed.
The appeal was dismissed; the Magistrates had been right to find that the charge had been issued before the 6 months stipulated by s. 127(1) had passed. In Irwin LJ’s view, the Appellant’s submissions conflated two quite discrete steps under s. 127(1) and the Criminal Procedure Rules – i.e. issuing and service. It was only the former that was required to be completed within six months of the date of the offence. A charge was to be regarded as issued “only when the document comprising the written charge is completed, with all the relevant details and in the form needed for service” (at [20]) (emphasis added). Any undue delay between issuing and service could be rectified by the abuse of process doctrine, on which Irwin LJ offered the following advice to prosecutors:
“It would be wise for prosecutors, as a matter of practice, to ensure in every case that both the issue and service of Single Justice Procedure Notices are completed before six months from the relevant offences, so as to put paid to any suggestion of such unwarranted delay” ([22]).
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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.
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The full piece can be read here.
