Weekly Digest: 8 June 2020

The appellants, the editor and owners of a Polish-language newspaper, appealed against a decision that an article published in the newspaper was defamatory of the respondent, a Polish businessman living in the UK. The newspaper was published in the UK and was aimed at the Polish community. The article contained serious allegations against the respondent, and he sued for libel. At trial, he appeared as a litigant in person. The judge, Jay J, dismissed his claim, holding that the allegations in the article were either true or had caused no serious harm to his reputation, and that the appellants had made out the public interest defence in section 4 of the Defamation Act 2013 even though they had not approached him for comment before publication. The Court of Appeal overturned those decisions. It held that the judge had been wrong to find that the section 4 defence was established, and it concluded that the respondent was entitled to damages in respect of certain of the allegations. It also found that the judge had intervened at various points during the trial in a manner that was unfair and hostile towards the respondent, thereby rendering the trial unfair. However, it did not order a full retrial. Instead, it set aside the judge’s orders and remitted the assessment of damages to another judge.

In a judgment delivered by Lord Wilson, the Supreme Court observed that in both civil and criminal trials, interventions by the judge during oral evidence should be as infrequent as possible. They generated a risk of descent into the arena, which was to be measured by whether the trial was rendered unfair. A careful written judgment could not redeem a hearing in which the judge had intervened to the extent of prejudicing the exploration of the evidence. Where there was a transcript of the proceedings, the judge would not usually be invited to comment on an allegation that his interventions had rendered the trial unfair, but the evidence would be analysed punctiliously. The Supreme Court observed that litigants in person were less able to withstand judicial pressure than were professional advocates, and judges had to temper their conduct accordingly. The transcript of the trial showed that the judge had fired a barrage of hostility towards the respondent and his case, using immoderate, ill-tempered and offensive language. He did not allow the claim to be properly presented and therefore could not fairly appraise it. Instead of making allowances for the claimant’s status as a litigant in person, he had harassed and intimidated him. In short, the trial was unfair and there would have to be a complete retrial, a conclusion which the Supreme Court reached with “deep regret”.

In terms of the public interest defence, the court observed that section 4 provided a defence to a defamation claim where the defendant could show that the impugned statement was on a matter of public interest and he reasonably believed that publishing it was in the public interest. Though the section 4 defence replaced the Reynolds defence, the principles underpinning the latter were relevant to the interpretation of the former. In determining whether a defendant reasonably believed that publication was in the public interest, the court had to take account of all the circumstances, which might include the factors in the Reynolds list. However, that list was not a mandatory checklist. The Court of Appeal erred again in holding that the Reynolds “checklist” was relevant to whether the defendant had acted responsibly and whether the article was “in the public interest”. The question was not whether the article was in the public interest, but whether it was on a matter of public interest; the reference to the Reynolds “checklist” was inappropriate; and references to acting “responsibly” were best avoided given that that concept had been excluded from section 4. Finally, the Supreme Court concluded that the Court of Appeal had also erred in holding that publishers were required to give potential claimants the opportunity to comment on articles before publication.

The claimant was convicted of murdering his adoptive father, his adoptive mother, his adoptive sister, and his nephews. He was sentenced to a whole life tariff. Over the years he explored various legal avenues to challenge the safety of his convictions, up to and including the European Court of Human Rights. He also made a number of applications to the CCRC. In 2012 he unsuccessfully judicially reviewed the refusal of the CCRC to refer his case to the Court of Appeal.

The claimant sought disclosure of material held by the CPS which he stated was needed to prepare a forensic report which could be submitted to the CCRC in support of an application to have his case referred back to the Court of Appeal. The CPS refused disclosure, and the claimant challenged the legality of this decision.

At his trial, the claimant contended that his adoptive sister (Ms Caffell) had committed the murders, before turning a shotgun on herself. A central part of the prosecution’s case was that Ms Caffell’s blood was found inside the sound moderator which was recovered from the farm. The prosecution said the blood entered the moderator due to the “blow back” of blood when Ms Caffell was shot. It said that it would have been impossible for Ms Caffell to have shot herself with the sound moderator attached to the gun because she would not have been able to reach the trigger because her arms were not long enough. Therefore, she must have been shot by someone else, and the prosecution said that person was the claimant. The sound moderator was found in a cupboard. Counsel for the claimant at his 2002 appeal, Michael Turner QC, wrote to the DPP in October 2016 asking whether a second sound moderator had been recovered from the farm. He said he had been told during the appeal in 2002 that there were two sound moderators. Mr Turner observed that among the documents disclosed during the 2002 appeal was a handwritten document from a Dr Wingad of the Huntingdon Forensic Science Laboratory in which it was stated that “there was no record of blood being seen on the outside of the moderator”. He said that this contradicted the evidence given at trial about the presence of blood on the outside of the moderator as well as inside it. Mr Turner argued that this suggested the evidence at trial was compromised whether or not there was a second moderator. He sought disclosure of all material pertaining to the existence of a second silencer and sound moderator; material which might cast doubt on the findings made by the experts pertaining to the silencer or sound moderator at trial and on appeal in 2002; and material which might cast doubt on the integrity of the silencer or sound moderator as an exhibit. The CPS refused disclosure stating that the matters raised did not cast doubt on the safety of the conviction.

Over a year later, on 20 February 2018 a pre-action letter was sent on the claimant’s behalf. It said that the CPS had not complied with a disclosure order made during the 2002 appeal including much of the material now sought. The letter again sought disclosure of documents because it was believed they would “prov[e] beyond question that two silencers featured in this case not one as the Crown’s case relied’ (sic)”. The request for disclosure was rejected for the following reasons:

a. There was no evidence that prosecuting counsel made any concession about a second silencer during the 2002 appeal;
b. Dr Wingad’s minute did support the existence of a second silencer and the evidence at trial was not inconsistent with what appears in the general examination record for DB/1 (the sound moderator found at the farm);
c. The renaming of exhibits is a common feature of investigations and the suggestion that the evidence relating to the silencer had been contaminated was speculative.

The CPS lawyer stated that the test for disclosure in the Attorney-General’s Guidelines and in R (Nunn) v Chief Constable of Suffolk [2015] A.C. 255 was not met. There followed a series of correspondence between the claimant and the CPS, before the claim was issued in December 2019.

It was submitted on behalf of the claimant that the presence of a second sound moderator would potentially undermine the safety of the convictions. As a result, the CPS decision not to disclose the requested material was unreasonable.

On behalf of the CPS, it was submitted that:

a. There was an alternative remedy available to the claimant, i.e., an application to the CCRC;
b. The claim failed to comply with the time limit for filing the claim form, as the operative decision was taken on 13 January 2017;
c. The claimant failed to make out an arguable case on the facts.

Julian Knowles J agreed with the decision of Saini J when he refused the claimant permission. Whilst his lordship recognised the duty of disclosure which lies on the CPS even post-conviction, he stated that the CCRC should be the first port of call for a litigant to whom disclosure is not made. Although whether or not to disclose material is always a fact specific determination, his lordship anticipated that most instances of Nunn disclosure would arise in fairly clear cut cases where it is plain that the disclosure will determine the case one way or another, for example, where a forensic sample is discovered that can be tested, or a new scientific technique is developed which did not exist at the time of conviction which can now provide a definitive answer. In such a case if the CPS were to decline disclosure then the case on judicial review would likely be an obvious one. The present case was said to be a world away from that sort of case. If ever there was a case where the CCRC should be approached to make a decision on what is said to be new evidence, it was said to be this one. The case was described as being massively complex which has been investigated and re-investigated by more than one police force over some 35 years. After so many years, and so much litigation, his lordship stated that the CCRC is the body undoubtedly best placed to consider the claimant’s arguments. The case was said to be so complicated, and had so many overlapping layers, that judicial review a “hopelessly blunt tool” with which to address and determine the claimant’s arguments.

The applicant’s extradition to Estonia was ordered by the district judge on 30 December 2019 for reasons given in a judgment dated 13 December 2019. Permission to appeal against that ruling was refused after an oral hearing by the High Court on 26 March 2020. The European Arrest Warrant that was the basis of the extradition action was a conviction warrant relating to a custodial sentence the unserved portion of which was 20 months and 20 days. The applicant had been on remand since his arrest on 11 October 2019, i.e. for nearly 8 months. Bail was previously refused in this case on 3 occasions: 15 October 2019, 23 October 2019 and 6 April 2020. Most recently, an attempt to make a further application for bail was not entertained by decision of 11 May 2020, on the basis that that judge was not satisfied that there was any change of circumstances justifying a further consideration.

It was submitted on behalf of the applicant that but for the suspension of flights arising from the Covid 19 pandemic, the applicant would by now be in Estonia. In Estonia he would be able to apply for parole under paragraph 76 of the Criminal Code. That provision of the Code, on the face of it, explains that there is an entitlement to apply for parole once at least one-third of the custodial sentence and at least 4 months have been served, as on the face of it would be the position in this case. Counsel for the applicant accepted that that entitlement to apply on the face of it then gives rise to a discretion as to whether or not parole is granted, and as to any conditions. There is a provision of paragraph 76 which describes mandatory considerations for the Estonian court must consider in addressing the issue of parole. Counsel for the applicant submitted that the delay in removal to Estonia was no fault of the applicant’s. There are no flights at present and there is no imminent prospect of a flight. His client was not entitled to make any application to the Estonian court from within the United Kingdom. In the circumstances of this case it was submitted that there was therefore prejudice arising, which it was appropriate for the court to address using the bail jurisdiction. In addition, counsel for the applicant submitted that appropriate conditions were offered in this case which could appropriately allay any concern as to failure to surrender. They included a condition that the applicant live with a friend at an address in SE1. They included a curfew electronically monitored, in respect of which counsel for the applicant pointed to the parallel between that and action which could be taken under paragraph 76 of the Code by the Estonian court. Also, a security of £1000, and various other familiar conditions relating to the retention of identity documents and restrictions regarding travel.

It was submitted on behalf of the respondent that notwithstanding the offered conditions, there were substantial grounds for believing that the applicant would if released failed to surrender. The position relating to parole in Estonia did not support the grant of bail, either in so far as it factored into the assessment of failure to surrender, or on any stand-alone basis. It was emphasised that the parole decision is one for the Estonian court, and is a discretion having regard to all the circumstances, including in this case past non-compliance; and that there is on the face of it no guarantee that an application in Estonia for parole would be granted.

In a judgment delivered by Fordham J, he concluded that there were substantial grounds for believing that the applicant, if released on the conditions, would fail to surrender to custody. In the light of that assessment, his lordship would not be prepared to grant bail in any event, notwithstanding the stand-alone argument relating to blamelessness and the inability as things stand to apply for parole.

Even if, however, the substantial grounds were not regarded as fatal and there were to be seen as some self-standing basis for bail arising out of blamelessness and prejudice and the inability to apply for parole, Fordham J would still have refused bail in this case. In his judgment, it was not and could not be a sufficient answer to say that there was prejudice and the applicant was awaiting the opportunity to invoke his entitlement to apply in Estonia for parole. It was possible that prejudice of that kind, at least in a case where the court was persuaded as to blamelessness, might be a basis for the High Court to exercise its jurisdiction, but in his lordship’s judgment it would need to be a very exceptional and very clear-cut case. If, for example, he felt satisfied in all the circumstances that it was inevitable – or all but inevitable – that a parole application would succeed in Estonia , then his lordship could see the force of the High Court considering addressing the prejudice and injustice arising, by reference to the bail jurisdiction. But in the present case, in his lordship’s judgement, there was nothing of that kind. The question of parole will be one for the Estonian court. It was quite impossible for the court to form any assessment as to the prospect of parole being granted by that court in the circumstances of this case. It was therefore impossible to conclude that the applicant was at present the subject of an unjust denial of an entitlement that he would otherwise have. There was no basis for the court to second-guess the decision that will need to be taken under paragraph 76 of the Code, still less to seek to replicate it by means of the grant of bail on bail conditions. Furthermore, his lordship was not persuaded that the applicant was blameless so far as the lapse of time in current circumstances were concerned. This was an individual who opposed extradition and was roundly unsuccessful in the December hearing before the district judge. He then pursued his appeal avenue to the High Court and was unsuccessful, in that permission to appeal was refused. It is in those circumstances, in a case where moreover he is a fugitive, that he faces the current complications arising from the pandemic. In terms of his refusal to grant bail, Fordham J observed that there was no presumption that bail should be granted. His lordship concluded that there were substantial grounds for believing that the applicant would fail to surrender based on the following factors: he was a fugitive from justice; he faced a substantial unserved custodial term; he committed the offence in question whilst serving a suspended sentence; and he had no family or home in the UK, having arrived in October 2019. Having considered bail afresh, Fordham J concluded that here were substantial grounds for believing that the applicant would if released fail to surrender and he was not satisfied that that risk could be sufficiently ameliorated by the conditions that were proposed.

Ministers considering renationalising England and Wales probation service

Ministers are considering renationalising the entire probation service in England and Wales. An MoJ spokesperson said: “Reforming probation to improve public protection and reduce reoffending remains one of our top priorities and we are assessing whether any changes to our current plans are required in light of the coronavirus pandemic. No decisions have been made.”

The full story is available here.

Sally Challen, who was released from custody after her conviction for murdering her husband was quashed and her plea to manslaughter was accepted, was allowed to inherit her husband’s estate after a judge concluded that a rule barring people who kill from inheriting their victim’s estate should be waived in her case.

The full story is available here.