Weekly Digest: 8th July 2019
8 July 2019
Last week in Johnson v Westminster Magistrates’ Court, the Divisional Court considered whether to uphold the decision to issue a summons for three offences of misconduct in public office during the 2016 EU Referendum campaign. The Court of Appeal (Criminal Division) gave important guidance in R v Chin-Charles in relation to the length, nature, and structure of sentencing remarks. Finally, in R v Foy, the Court of Appeal considered an application for leave to appeal against a murder conviction on the basis of a psychiatric report obtained after conviction. The Digest considers each decision in more detail below.
Johnson v Westminster Magistrates Court  EWHC 1709 (Admin)
The judgment, available here, was handed down by Rafferty LJ and Supperstone J on 3 July 2019.
Boris Johnson challenged by way of judicial review the respondent magistrates’ court’s decision to issue a summons alleging three offences of misconduct in public office. The alleged offences related to the 2016 EU referendum campaign during which it was said that Mr Johnson repeatedly lied and misled the British public as to the cost of EU membership, stating that it was £350 million per week. The summons were quashed: Mr Johnson was not discharging the duties of his public office when he made the contested claim and so one of the key elements of the common law offence was not met.
The common law offence of misconduct in public office requires four elements to be met: (i) a public officer acting as such (ii) wilfully misconducts himself (iii) to such a degree as to abuse the public’s trust in the office holder (iv) without reasonable justification. The present judicial review focused on requirement (i). The claimant’s argument was that there is a crucial distinction between acting as a public official on the one hand and acting whilst a public official on the other. Mr Johnson, though a public official by virtue of being Mayor of London and a Member of Parliament, was not acting as such when he made the disputed claim. The District Judge (‘DJ’) had declined to answer the question on (i) conclusively, stating that this was a defence argument to be determined at trial following service of all the evidence. For a summons to be issued only a prima facie case needed to be made.
The Divisional Court made a number of points. First, this was a public law challenge as any error of law would have led the DJ to act in excess of her jurisdiction. Second, to issue a summons in a private prosecution requires that the allegation is an offence known to the law and is not vexatious. The right to bring a private prosecution, though an important safeguard against improper action by a prosecuting authority, is not unfettered. Third, Mr Johnson was not acting in the discharge of the duties of his public offices when he made the contested claim. Fourth, misconduct in public office bites on breaches of duties, or an abuse of state power. No previous authority existed to suggest that the offence can be equated to bringing an office into disrepute or misusing a platform outside the scope of the office. Fifth, the problem of false statements made during political campaigns was not new; under the current Representation of the People Act 1983 it is illegal to make a false statement of fact about the personal character or conduct of a candidate during a parliamentary election. Parliament excluded any other form of false statement, including those relating to publicly available statistics. Sixth, the DJ appeared not to acknowledge that her ruling would extend the ambit of the common law offence. Seventh, there was extensive evidence that the private prosecution was being brought for political purposes, and the DJ gave no reasons as to why despite this evidence she decided that it was not vexatious. The claim succeeded, and the Court quashed the issuing of the summons.
R v Chin-Charles  EWCA Crim 1140
The judgment of Lord Burnett of Maldon CJ, dated 3 July 2019, is available here.
In these two applications for leave to appeal against sentence the Court of Appeal considered the length, nature, and structure of sentencing remarks, in addition to the individual merits of the applications. In both cases the sentencing remarks were comprehensive – 17 and 76 pages respectively. The Court held that such length is rarely, if ever, necessary or desirable. Trial judges should not craft their remarks with an eye to the Court of Appeal but rather in plain language and with a keen focus on their primary audience, the offender. This was even the case where the offending arose out of a complicated drugs and weapons conspiracy involving an organised crime group and 19 defendants. One application for leave was granted, though the sentence itself reduced by only four days to reflect days spend on curfew. The other application was dismissed.
Mr Chin-Charles was sentenced to a total of 10-and-a-half years with 4 years extended licence for grievous bodily harm with intent, to be served concurrently with shorter sentences for possession with intent to supply crack cocaine and heroin, and breaching a suspended sentence for threatening another with a blade. The main offences arose out of a fight between the applicant and a victim seeking to buy drugs where the applicant punched and stabbed his victim. On his application for leave to appeal he argued that the judge should have placed the case in category 2 of the sentencing guidelines, as it was agreed that the victim’s injuries were ‘superficial’. The Court held that while this offending did not sit easily within category 2 or 1 of the guidelines, in any event the significant number of aggravating factors would have ensured that the end result would have been the same even if it had been placed in category 2. 10 years and 6 months for total offending was not excessive. Further, the finding of dangerousness was open to the judge. One wound was just above the victim’s eye and one was close to his lungs; that more serious injuries did not occur was by chance rather than design. Leave to appeal and an extension of time was granted, but solely to afford credit for time spent on curfew. Otherwise the application was dismissed.
Mr Cullen was sentenced to a total of 27 years’ imprisonment for a number of counts, including conspiracy to possess and sell weapons and to supply drugs, arising out of a ‘drugs empire’ based in Warrington. The organised crime group ran the conspiracy as a business, calculating their overheads, using a company as a front, acquiring properties for storage and distribution, and paying their employees well. In January and February 2017 alone over £750,000 worth of cocaine was supplied, while a police search at a property used by the group revealed six separate guns. The single ground of appeal was that the judge failed to allow sufficient discount for the isolated sentences in order to reflect the totality of the aggregate sentence. Leave to appeal against sentence was refused: in imposing consecutive sentences, the judge was obliged to reach a sentence that was “just and proportionate”, which is exactly what he did.
The Court also held that sentencing judges should resist the temptation to include “extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues” in their sentencing remarks. Findings of fact should be announced without, in most cases, supporting narrative. The primary rule remained that the offender understands the nature and effect of the substance of the sentence, explained in ordinary language and in general terms. Remarks should not be made with the Court of Appeal in mind; they would in any case have the Crown’s opening, any hearing note and record of mitigation advanced available. The Court of Appeal does not review the reasons of the sentencing judge, instead determining whether the sentence imposed was manifestly excessive or wrong in principle.
R v Foy  EWCA Crim 1156
The judgment, available here, was handed down by Knowles J on 5 July 2019.
The applicant renewed his application for leave to appeal against his conviction for murder, for which he was sentenced to life imprisonment with a minimum term of 17 years. The application was grounded in a second psychiatric report obtained after conviction and sought to rely on this fresh evidence to argue that the applicant could rely on the defence of diminished responsibility. The application was not resisted by the Crown. Leave to appeal against conviction was granted, and orders made for the second psychiatrist to provide a supplemental report so that the court at the full appeal could decide whether to admit the fresh evidence.
The deceased was a French national on holiday in London with his family, stabbed in the street on his way back from a supermarket trip by the applicant. They were total strangers to each other. The applicant claimed to have spent the previous two days consuming cocaine and alcohol, and said that by the time of the stabbing he was hallucinating. A neighbour witnessed the attack. She saw the applicant ran at the deceased and stab him once in the stomach. A psychiatrist’s medical report prepared before trial considered the applicant floridly psychotic, a condition caused by the voluntary ingestion of drugs and alcohol. However, a second report prepared in prison a few weeks after conviction concluded that the applicant suffered from an acute psychotic transient disorder which manifested itself in psychotic episodes even when not consuming drugs and alcohol. Indeed, the second report also noted that the applicant’s account of consuming copious amounts of cocaine and alcohol in the days before the attack was not borne out by toxicology evidence and might not be reliable.
Leave to appeal was granted. It was arguable that there was a diagnosis of a mental condition which may arguably have given rise to the defence of diminished responsibility had it been considered before trial. It was for the court hearing the full appeal to determine whether to admit the second report as evidence, and whether the applicant’s conviction was unsafe.
The Secretary of State for Justice has declared his intention to resign if the next Prime Minister backs a no-deal Brexit
David Gauke also told the BBC’s Andrew Marr show that a “sizeable” number of Conservative MPs believed the UK should leave with a deal.
The full piece can be found here.
Killers could be refused parole for concealing the location of their victim’s body
The new law will mean that the Parole Board must consider whether the killer revealed the location of their victims’ remains when reviewing their suitability for release.
More details can be found here.
Judges in Family Court are ‘dealing directly’ with rowing parents
The President of the Family Division, Sir Andrew McFarlane, said that more parents are representing themselves because they do not qualify for legal aid and that the current volume of cases is “unprecedented and, on current resources, unsustainable”.
More details can be found here.