This week’s edition considers four judgments; two of the Court of Appeal (Criminal Division), and two of the Divisional Court. In Reynolds the Court of Appeal considered the proper approach to summing-up and counsel’s duty to draw attention to errors in it. In Gomez the Court of Appeal considered an appeal against conviction and sentence for assault by penetration and sexual assault with a focus on the effect of inadmissible opinion evidence, and the interpretation of the sentencing guidelines for the offence of assault by penetration. In Sandhu v Chief Constable of West Midlands Police the Divisional Court considered the requirements for the forfeiture of cash under section 298(2)(b) of the Proceeds of Crime Act 2002. In DPP v Walsall Magistrates’ Court the Divisional Court considered the limited circumstances in which disclosure orders for evidence aiming to undermine the reliability of a breath alcohol testing device would be granted.
R v Reynolds [2019] EWCA Crim 2145
The judgment, available here, was handed down by Simon LJ on 05/12/19.
The Court of Appeal gave guidance on the proper approach to the judges summing-up of facts, and emphasised the need for counsel to raise any errors or complaints at the trial, and that counsel should not wait till an appeal to raise issues.
The appellant had been convicted of conspiracy to corrupt in relation to an agreement to make corrupt payments and or other consideration to officials/agents of a Lithunian energy holding company and the Government of Lithuania. The purpose of the payments and considerations was to provide inducements or rewards for showing favour to companies within the Alstom Power group of companies in relation to the award of performance of contracts in Lithuania. His named co-conspirators, V and W pleaded guilty prior to the trial. The appellant’s case was that he had been unaware of any need for bribery or the covert arrangements to conceal it.
Admission of the co-conspirators interview
Hearsay evidence may be admitted under s.114(1) of the Criminal Justice Act 2003 only where it is relied on as ‘evidence of any matter stated’: in other words, where it is sought to establish the truth of the matter stated. Where the appellant had sought to admit V’s interview with the Serious Fraud Office to show the untruth of what he had said that provision did not apply. The question for admissibility was whether the evidence was relevant. It is difficult to see how the lies of someone who is not a witness about those who were witnesses could have assisted the jury in deciding whether the appellant was aware of, and joined, the conspiracy to bribe. The jury already knew V was deceptive and his lies about witnesses did not have sufficient bearing on the case ([35] and [36]).
Summing-up
The summing-up of facts serves two purposes: first, to the extent necessary, it reminds the jury of the salient facts and the prosecution and defence cases in relation to those facts; and secondly, since a jury’s verdict is not reasoned, it provides an assurance that the verdict is founded on the facts described in the summing-up, albeit that it is not necessary for a summing-up fully to rehearse all the facts and arguments ([50]). A succinct and concise summing-up is particularly important in a long and complex trial ([55]). It is not usually necessary to remind the jury of points made in counsel’s speech, unless a defendant has not answered questions in interview or has not given evidence ([59]). If no complaint or suggestion is made at the time of a summing-up it may be regarded on an appeal as relevant to the validity of any later complaint. If a point is material, it should be taken at a time and place when it can be dealt with most conveniently, by a judge who has heard the evidence and is familiar with the nature of the issues at trial, and so that the jury can consider them if necessary ([61]). Whatever the historic approach might have been, it would be inconsistent with the duty of the parties to conduct the case in accordance with the overriding objective, for either prosecuting or defence counsel not to raise with the judge what appears to be an error in the summing-up, whether of law or fact. If counsel remains silent, this Court is entitled to proceed on the basis that what was said in a summing-up was not regarded as an error or at least a material error at the time ([66]). In the instant case although the appellant had numerous complaints about the summing-up, whether viewed separately or cumulatively, they did not cast doubt on the safety of the conviction ([110]).
Stresses of giving evidence
The judge, when directing the jury as to the proper allowances they should make for the stresses on a defendant when giving evidence in his own defence had observed that “it may be said that those stresses and strains would be the same whether somebody was giving truthful evidence from the witness box or untruthful evidence.” The observation added nothing, had the potential to undermine the proper direction which preceded it and should not have been made ([115]). However, in the circumstances it did not undermine the overall force of the direction ([116]).
R v Gomez [2019] EWCA Crim 2174
The judgment, available here, was handed down by Dingemans LJ on 06/12/19.
The Court of Appeal dismissed an appeal against conviction for assault by penetration and sexual assault where two witnesses had given inadmissible opinion evidence as to whether the complainant would have consented. The court further held that entry into a room in a flat uninvited was not “forced/uninvited entry into victim’s home” but that a woman sleeping in her boyfriend’s bedroom drunk was “particularly vulnerable due to personal circumstances” for the purposes of the sentencing guidelines.
The appellant (age 29/previous convictions for battery and criminal damage) had been at a house party when he entered a bedroom where A was sleeping/half asleep having drunk about half a bottle of wine, and stroked her breasts, inserted his fingers into her vagina and licked her vagina. When A realised that the appellant was not her boyfriend she got up and left the room. The appellant was convicted of assault by penetration and two counts of sexual assault and sentenced to 8 year’s imprisonment and a sexual harm prevention order imposed.
Appeal against conviction
The Court of Appeal dismissed the appellant’s appeal against conviction. Although two witnesses had given inadmissible opinion evidence on whether A would have consented to sexual activity with the appellant, and the prosecution had at one point repeated part of that evidence, his conviction was still safe. The judge told the jury that the opinion was not relevant, and prosecuting counsel did try and stop the second piece of inadmissible opinion evidence ([41]). More critically, on the facts, if the jury were going to be influenced by the opinion evidence of the witnesses they would also have had to accept their account of the facts which would have involved rejecting the defendant’s case. In such circumstances conviction would inevitably follow and the opinion evidence would add nothing ([42]).
Further, even assuming that evidence that the appellant had made sexual innuendos to another woman in the hope of entering into consensual sexual relations and that he had reported sexual adventures to a separate person was evidence of “bad character” by virtue of being reprehensible behaviour (which the court would assume but not decide) it was properly admitted as all parties had agreed to admission. There was no basis for suggesting that the appellant’s past consensual sexual behaviour might count against him, and the jury were properly told that the defence relied on this evidence to show that all this sexual activity was consensual ([33]).
Appeal against sentence
The appellant’s appeal against sentence was allowed. The judge had been wrong to find there was “forced/uninvited entry into victim’s home” for the purposes of the Sentencing Council’s guideline. While the appellant had gone into the bedroom without permission he had been invited into the flat ([52]). The judge was, however, right to find that A was “particularly vulnerable due to personal circumstances”. She had drunk half a bottle of wine and was asleep in her boyfriend’s bed in his bedroom. She was defenceless and accordingly particularly vulnerable ([53]). The judge was therefore entitled to place this case into category 2B of the sentencing guidelines for assault by penetration (starting point 6 years, category range 4 to 9 years) but should not have placed the offence at the highest level within that category. A sentence of 5 years’ imprisonment would be substituted ([54]). A condition in the sexual harm prevention order without limit in time prohibiting the appellant from taking any employment, freelance or otherwise, or occupation which involved him being alone in a room with any female, without providing 24 hours’ notice to his offender management team, unless in the course of normal life, was unnecessary and would be quashed. It is not an answer to say that the appellant could apply to vary the term ([56]).
Sandhu v Chief Constable of West Midlands Police [2019] EWHC 3316 (Admin)
The judgment, available here, was handed down by Holroyde LJ on 05/11/19.
The Divisional Court held that the forfeiture of cash under section 298(2)(b) of the Proceeds of Crime Act 2002 did not require the identification of the predicate crime which was the source of the cash provided the court could be satisfied on the balance of probabilities the cash came from criminal activity and that the intended use of it would constitute a money laundering offence.
A cash sum had been seized from the appellant and forfeited by a magistrates’ court pursuant to section 298(2)(b) of the Proceeds of Crime Act 2002 on the basis that the seized cash was intended to be used for money laundering offences in the future. It was not suggested that the police could prove that the source of the cash was a specific crime or crimes or one of a specific type of crime. The Crown Court had dismissed an appeal against that forfeiture and the appellant appealed by way of case stated against the decision of the Crown Court.
The Divisional Court dismissed the appeal. It had not been wrong in law for the Crown Court to consider as part of the evidence of the appellant’s financial affairs an earlier seizure of cash from the appellant that had in due course been returned and no attempt made to seize or freeze it. It is not possible to regard the authority’s inaction as proof the money was of entirely innocent origin ([7] to [8]).
Under section 298(2) the court may order the forfeiture of cash if satisfied that the cash (a) is recoverable property, or (b) is intended by any person for use in unlawful conduct. Angus v UK Border Authority [2011] EWHC 461 (Admin) is authority for the proposition that when forfeiting cash under section 298(2)(a) (recoverable property), an applicant authority must establish on the balance of probabilities that the cash was obtained through one of a number of kinds of conduct, each of which would have been unlawful conduct. Under section 298(2)(a) it is not enough for an applicant authority to establish only that the cash was obtained through criminal conduct of a kind which could not be identified ([18]). That decision did not, however, apply to applications under section 298(2)(b) ([27]). For the purposes of the money laundering offence under section 327 of the 2002 Act it is not necessary to show the precise type of crime from which the property was acquired if the circumstances are such as to give rise to an irresistible inference that it could only be derived from crime. The court was therefore entitled to infer on the balance of probabilities that the cash came from criminal activity and that the appellant’s intended use of it would constitute a money laundering offence and that was sufficient for forfeiture under section 282(2)(b) ([29]). There was no requirement under that paragraph to identify the class of predicate crime from which the cash came ([31]).
DPP v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin)
The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 05/12/19.
The Divisional Court quashed disclosure orders for evidence aiming to undermine the reliability of a breath alcohol testing device on the grounds that the applications had not been supported by sufficient evidence as to relevance. Obiter dicta: the court discouraged unmeritorious applications of these kinds and reminded counsel of the need to ensure that any expert reports to be relied upon for the purposes of seeking further disclosure in relation to a type-approved machine, address all the matters identified at [55] to [57] of R (Director of Public Prosecutions) v Manchester and Salford Magistrates’ Court [2017] EWHC 1708 (Admin).
In two unrelated prosecutions for driving with a breath alcohol level in excess of the statutory limit, contrary to section 5(1) of the Road Traffic Act 1988 the defence, having alleged that the defendant had not consumed sufficient alcohol to be in excess of the statutory limit, sought to challenge the accuracy of the Lion Intoxilyser 6000UK used. In both cases the District Judge allowed a defence application for disclosure pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 ordering the Crown to make disclosure of, among other things, evidence relating to the calibration certificate of the device, and the memory log of the last six months of the device.
The Divisional Court quashed the disclosure orders made. The Intoxilyser has in-built calibration checks which are run before, between and after each of the two breath samples taken from the subject for analysis; accordingly, breath-tests of individual subjects are complete in themselves. The printout is the full and sufficient record of the test and of the machine’s reliability when performing the test ([47]). In the first case there had simply been assertions by the defence about the reliability of the Intoxilyser without supporting evidence. That the gas calibration certificate had expired could not justify ordering the wider disclosure in the absence of any evidence establishing its relevance ([51]). Similarly, while the second case relied on an expert report that report did not show the necessary relevance of the further disclosure. Courts faced with evidence purporting to call into question the reliability of a type-approved device should scrutinise such evidence very carefully for its actual meaning and its relevance to the particular test results under examination ([52] to [53]).
Obiter dicta: Unmeritorious applications for disclosure of unused material relating to type-approved devices whose data form the basis of standard prosecutions cause delay and expense ([62]). We are troubled that defence statements, or an application for disclosure, relying on generalised, speculative complaints about a type-approved device were produced in these case ([65]). It is the responsibility of defence representatives to ensure that experts understand the requirements of the Criminal Practice Rules and Directions, and that the expert reports which they serve on behalf of their clients are reliable and admissible; further that if such reports are to be relied upon for the purposes of seeking further disclosure in relation to a type-approved machine, they address all the matters identified at [55] to [57] in R (Director of Public Prosecutions) v Manchester and Salford Magistrates’ Court [2017] EWHC 1708 (Admin) ([73]).
‘Scandal brewing’ as thousands of suspects released
A Freedom of Information request by BBC Newsnight revealed that the power to release a person under investigation was used in 322,250 cases between April 2017 to October 2019. Of these, 93,098 were concerned with violence against a person or sexual offences.
The full piece can be read here.
Prisons put terrorists on waiting list to receive help to deradicalise
Professor Andrew Silke has claimed convicted terrorists are having to be put on waiting lists for the main government-backed deradicalisation programme.
The full piece can be read here.
Rendition: refusal to hold UK public inquiry to face judicial review
Mr Justice Hilliard, has granted permission for lawyers representing the former Brexit secretary David Davis, the Labour politician Dan Jarvis and the human rights organisation Reprieve to launch a judicial review of the government’s decision in July not to hold an inquiry into allegations that the security services were complicit in the torture and abduction of terror suspects after 9/11.
The full piece can be read here
