This week’s digest considers one judgment of the Supreme Court and four of the Court of Appeal (Criminal Division). In the Supreme Court judgment, the issue was whether judicial review proceedings challenging a decision not to prosecute were ‘proceedings in a criminal cause or matter’ under s. 6(11) of the Security and Justice Act 2013. The first of the Court of Appeal judgments considered costs; the second whether fresh evidence should be received by the Court; the third whether a trial judge had erred in admitting certain material in evidence; and the fourth was an appeal against sentence which considered 10 cases.
Belhaj v Director of Public Prosecutions [2018] UKSC 33
The judgment, available here, was handed down on 04.07.18. The lead judgment was given by Lady Hale.
The issue in this appeal was whether judicial review proceedings, in which the claimant sought to challenge a decision of the DPP not to prosecute, were ‘proceedings in a criminal cause or matter’ within the meaning of s. 6(11) of the Justice and Security Act 2013. By a bare majority, the Supreme Court decided that they were: a challenge to a decision not to prosecute was as much of a criminal matter as the original decision not to prosecute.
The appellants in this case allege that they were abducted and mistreated by agents of foreign governments before being ‘rendered’ to the Libyan authorities, by whom they were imprisoned and tortured. They allege that Sir Mark Allen, who was said to have been a senior officer of the British Secret Intelligence Service at the time, was involved. The DPP, after the Metropolitan Police had investigated the matter, decided not to press charges against Sir Mark. This decision was based upon legal advice that there was insufficient evidence to prosecute. After reviewing the decision, the same conclusion was reached. The CPS declined to disclose the potential evidence to the appellants, citing its security marking.
The appellants sought judicial review of the failure to prosecute. The DPP argued that her decision was based on a review of documents which could not be released to the appellants. The Foreign Secretary applied to the court under s. 6 of the Justice and Security Act 2013 for a declaration that the judicial review proceedings were ‘proceedings in which a closed material application may be made to the court’. Such an application may only be made to a court seized of ‘relevant civil proceedings’, which are defined as not including ‘proceedings in a criminal cause or matter’. The issue was thus whether these judicial review proceedings were ‘proceedings in a criminal cause or matter’.
By a majority of 3-2, the Supreme Court held that these proceedings did fall within that exception. For Lord Sumption, who gave the lead judgment, a ‘cause’ was a proceeding, civil or criminal, actual or prospective, before a court; a ‘matter’ was something wider, namely a particular legal subject matter, although arising in a different proceeding. The appellants’ application is an attempt to require the DPP to prosecute Mr Allen; that, Lord Sumption found, is just as much a criminal matter as the original decision not to bring a prosecution.
Najib and Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 1554
The judgment, available here, was handed down by Lord Justice Leggatt on 03.07.18.
This was an application for costs under Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 on the basis that the CPS’s conduct, in pursing the charge, constituted ‘an unnecessary or improper act or omission’. The application succeeded: when the Court of Appeal granted permission to appeal, the CPS should have been aware that a failure to identify a proper basis for the charge would result in the possibility of a costs order against them.
In a judgment handed down on 26 April 2018 ([2018] EWCA Crim 909), available here), the Court of Appeal quashed the conviction of the applicant for an offence under Regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 (SI 2010/801) (“the Regulations”) of failing to give an inspector the assistance required to take samples from the applicant’s animals. That conviction was quashed on the basis that under the Regulations, an inspector had no such power, with the result that a failure to assist an inspector in its exercise was not a criminal offence in law.
The applicant applied, pursuant to Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, for an order that its costs of the proceedings (both in the Court of Appeal and below) be paid by the respondent. For such an order to be made, the Court had to be satisfied that ‘costs have been incurred in respect of the proceeding by one of the parties as a result of an unnecessary or improper act or omission by […] another party to the proceedings’. The meaning of ‘unnecessary or improper act or omission’ was reviewed in R v Cornish [2016] EWHC 779 (QB) (available here); essentially, the test is one of impropriety and, where a case fails as a matter of law, the prosecutor may be more open to a claim that the decision to lay the charge was improper. In any event, the granting of such an application will be ‘very rare and will be restricted to those exceptional cases where the prosecution has made a clear and stark error’ (Cornish, at [16](f)).
The application succeeded on the basis that the observations of the Court of Appeal, when granting permission to appeal, put the respondent on notice that, unless they identified a provision of the Regulations which provided a proper foundation for the offence and they resisted the appeal, there would be risk of an order for costs. The amount sought by the applicant in the region of £52,000. Only £10,000 was allowed on the basis that (a) it was not possible to ascertain a split in the applicant’s costs budget between those costs spent below and those in the Court of Appeal and (b) a significant discount should be made to reflect the fact that, although the appeal ultimately succeeded, the applicant pursued two grounds which failed.
R v Gordon [2018] EWCA Crim 1555
The judgment, available here, was handed down by Lord Justice Treacy on 04.07.18.
The issue in this case was whether the Court should receive new evidence which tended to show that, at the time the applicant committed the offence, the applicant had an autism spectrum disorder. This, in the applicant’s submission, should have formed part of the judge’s direction to the jury on various issues in the case. The application was refused; the evidence was not of sufficient strength to convince the Court that any disorder, at the time of the incident, was a significant part of his psychological makeup.
This was a renewed application for leave to appeal against a conviction on 10 March 2011 for murder. In essence, the applicant sought to urge the Court to receive fresh expert evidence, pursuant to s. 23 of the Criminal Appeal Act 1968, which demonstrated that the conviction was unsafe because the applicant, at the time of the offence, was suffering from an autism spectrum disorder (“ASD”). The condition was not diagnosed at the time of trial, but, had it been, the judge would have directed the jury in a materially different way, since the ASD impacted upon the applicant’s ability to absorb, process, and foresee the consequences of his own actions and those of others.
The facts of the case, in brief, were that the applicant had been part of a gang who had travelled from Lewisham to Sydenham with a view to confronting another gang; there was a history of violence between the two. The result of this confrontation was that Nicholas Pearton was chased and stabbed to death by members of the applicant’s gang. The case against the applicant at trial was that he had incited the violence, had himself wielded a knife, and was an active participant in the action rather than an observing bystander.
The evidence on which the applicant intended to rely consisted of two expert reports. The first, that of Dr Murphy, concluded that the applicant’s history was consistent with him having an ASD, which could have been missed at the time of trial. He did, however, acknowledge that the applicant’s condition had deteriorated significantly since he had been in custody. The second expert, Dr Merrill, noted that it was not obvious, from the applicant’s initial presentation, that he had any difficulties, including with autism. She went on to conclude that, if the event could have been shown to have been planned, the events would have been easier for the applicant to process and react to.
Considering the applicant’s condition at the time of the offence, given that this was not a spontaneous and unexpected event and that there was a lack of evidence to show that at the time of the offence the applicant’s condition was such as to impact upon his behaviour, the Court refused to receive the evidence on the basis that it was not of sufficient strength to undermine the safety of the conviction. The totality of evidence showed that the applicant’s condition deteriorated seriously after admission to custody and not that his ASD was a significant feature of his mental makeup at the time of his offence.
R v Alamgir [2018] EWCA Crim 1553
The judgment, available here, was handed down by Lord Justice Treacy on 04.07.18.
The appellants had been convicted of encouraging support for ISIS, a proscribed organisation. They appealed against conviction on the basis that the judge had been wrong to admit in evidence speeches they made, which went beyond the period specified in the indictment. The appeal failed: the judge had been correct as this other material was necessary to allow the jury to assess the appellants’ views and their willingness to express violent views to others. One of the appellants also renewed two further grounds of appeal relating to (i) jury direction and (ii) the rights guaranteed by Articles 9 and 10 ECHR; this also failed.
The appellants were convicted of offences under the Terrorism Act 2000 (TA). Alamgir was convicted of three offences, and Bashir and Kahn of one offence each, contrary to s. 12(3) TA of encouraging support for a proscribed organisation, namely ISIS. In addition, Kahn was convicted of an offence contrary to s. 12(2) TA. The case against the appellants at trial was that they were members of a Luton branch of a national group believed to have Jihadi views. All three had made speeches at meetings during Ramadan in 2015 between 29 June and 15 July which were designed to encourage support for ISIS.
The basis of the appellants’ appeal was that the trial judge was wrong to admit in evidence recordings of speeches made on occasions other than those identified in the indictment and evidence of materials gathered about the appellant’s activities more generally (referred to as “mind-set material”). It was said that the material adduced was not relevant and that its nature and quantity was prejudicial, and in any event exceeded its probative value.
The Court rejected these arguments. Key elements of the case were whether words used encouraged support for ISIS, and whether an appellant knew that was the purpose of his address at the meeting. Since those matters were in issue, it was not realistic for the jury to be confined to a consideration of the speeches themselves when deliberating on those issues. Other materials were relevant so that the jury could consider an appellant’s actual views and his willingness to express violent Jihadi views to others. The evidence was clearly relevant. As for the submission that the evidence was improperly prejudicial rather than properly probative, this was rejected by the Court. The evidence was put before the jury in an accurate and balanced way. For those reasons, there was no substance in the common ground of appeal and it was accordingly dismissed.
At the same hearing, Kahn sought to renew his application for permission to appeal in respect of two further grounds, which were refused by the single judge, namely that:
(i) the judge failed properly to direct the jury in relation to the applicant’s connection with the Security Services and/or permitted the prosecution to engage in impermissible cross-examination of the applicant in relation to that issue; and
(ii) the judge failed to provide sufficient safeguards to prevent breaches of Articles 9 and 10 of the European Convention on Human Rights.
In respect of (i), the applicant alleged to have been interviewed by the security services; as is standard procedure in such cases, the prosecution would neither confirm nor deny such an assertion. The evidence being, therefore, unchallenged, the judge directed the jury to accept Kahn’s account of his meetings with the security services as being accurate This was in line with the guidance given in R v AA & MD [2016] EWCA Crim 7, at [22]. The issue in cross-examination was his credibility; the Court found that the judge adequately directed the jury to the core issue of whether Kahn’s account of what he told the security services aligned with his evidence of other things said by him at the same time or later.
As regards (ii), the trial judge had directed the jury that there was a line between the permissible expression of opinion and/or religious belief and the impermissible encouragement of a proscribed organisation; which side of the line Kahn’s case fell was a matter for them. Further, he laid emphasis on the entitlement of everyone to hold and express opinions, even if others find them offensive or unpalatable. The judge’s direction was unimpeachable. Accordingly, Kahn’s renewed application failed.
R v Mayers [2018] EWCA Crim 1552
The judgment, available here, was handed down by Lord Justice Treacy on 04.07.18.
In this case, the Court considered 10 appeals against sentence for offences of conspiracy to rob. The appellants were part of a group of individuals who had launched a violent attack on a travellers’ camp. The appellants contended that the judge, in sentencing, had erred in applying the wrong guideline. This succeeded: the judge should have followed the guideline for robbery in a dwelling. All 10 sentences were substituted for shorter terms than those originally imposed.
In this appeal against sentence, 10 cases were heard together; the convictions arose out of the same incident and the challenges made had common themes. The appellants were convicted in two separate trials. In the first, in January 2017, the appellants Danquah, Mayers, Myers, Jenks, Miller, Baker, and Alieu were convicted of conspiracy to rob; Myers was found guilty of a separate offence of possession of a disguised firearm in the form of taser disguised as a torch. In the second, in December 2017, the appellants Issah and Smillie were found guilty of conspiracy to rob. In addition, in May 2017, the appellant, Kenny, pleaded guilty to the offence of conspiracy to rob. They were sentenced as follows:
Danquah, Mayers, Baker, and Alieu: an extended sentence of 20 years, comprised of a custodial term of 18 years and an extension period of 2 years.
Myers: The same as the above to run consecutively with a 3 year sentence for possession of a disguised firearm.
Jenks: 16½ years’ imprisonment.
Miller, Issah, and Smillie: 16 years’ imprisonment.
Kenny: 10 years and 8 months’ imprisonment.
In terms of the facts of the offence, on 26 April 2016, a group in excess of 17 men attacked a travellers’ site at Wheat Garden Stableyard in Kent. The attackers wore face masks or balaclavas, were armed, and had prepared in advance a collection of cable tie handcuffs ready to restrain the victims. They stormed the site and attacked victims in their homes. Some of the travellers were tied up and sustained knife wounds. The attack had been planned for some time; there was a meeting held the day before in Tunbridge Wells between a number of the participants and there was reconnaissance of the site.
The correct guideline
A common theme of the appeals was that the sentencing judge had applied the wrong guideline in sentencing; in his opinion, the offence did not fit squarely within either the guideline for robbery in a dwelling or the guideline for a professionally planned commercial offence. In the Court’s view, the former guideline was capable of providing for an offence which is sophisticated and organised in circumstances where physical injury or psychological harm is caused to the victim. Thus, the Court held, the judge had erred in his approach.
Further, in the Court’s view, this case was exceptional such that it justified the uplift from the starting point for a Category 1A offence from 13 years. This was because the case had the following aggravating features: the offence was committed at night; the offenders were disguised; occupants of the site were tied up; victims included women and young children; and at least one victim was forced to leave her home.
Dangerousness
Five of the appellants (Danquah, Myers, Mayers, Alieu, and Baker) were assessed as dangerous within the meaning of s. 226A of the Criminal Justice Act 2003 and thus extended sentences were imposed. The appellants’ case was that the judge had erred in sentencing as he had adopted an approach which reflected an assessment of the collective risk posed by the appellants rather than assessing the future risk by reference to the individual’s own circumstances. In the Court’s view, in the absence of specific findings as to what actions supported a finding of dangerousness based solely on the particular facts of the offence, it was not clear that the finding of dangerousness was justified, and as such the extended sentences were quashed.
Lady Hale calls for Mental Health Act reforms
In a speech at the Royal College of Psychiatrists, Lady Hale said that the Mental Health Act needs to be updated because too many people are being detained in hospital and doctors are becoming increasingly risk averse. She went on to say that people were not receiving sufficient support in the community to prevent them from reaching crisis point and there was confusion about legal overlaps with the Mental Capacity Act.
The full piece can be read here; Lady Hale’s speech is available here.
People risk unjust prison sentences due to lack of court healthcare
Innocent people are at risk of being given unjust prison sentences and suffering physical harm because of lack of healthcare in courthouses, according to the outgoing head of the independent body charged with monitoring the care and welfare of those brought to court in England and Wales.
The full piece can be read here.
Courts to get punishment guidelines for revenge porn offences
Courts have for the first time received guidelines on punishing offenders found guilty of revenge porn offences. Repeatedly reposting private sexual images and videos after they have been taken off-line could leave perpetrators with sentences of up to two years’ imprisonment.
The full piece can be read here; the new Intimidatory Offences guideline, which will apply to all offenders aged 18 and older sentenced on or after 1 October 2018, is available here.
Former detainees call for inquiry into UK role in torture and jailing
A group of former detainees has urged a judicial inquiry to be launched into the extent of the British involvement in kidnapping, false imprisonment, and torture by the US during the ‘War on Terror’.
The full piece can be read here.
