Weekly Digest: 9 March 2020

On 14 June 2019, the appellant was convicted of two counts of possessing a controlled drug of class A with intent to supply. He was sentenced to 5.5 years’ imprisonment. The appellant was ordered to pay a surcharge in the sum of £170. An order was made for the forfeiture and destruction of the drugs. He appealed against conviction by leave of Phillips J.

On 27 February 2020 the Court of Appeal dismissed the appeal.

The main issue considered by the Court was whether the judge should have qualified his criticism of the defence speech. The judge stated:

“One thing I must correct about something that Mr Bass said, he said that the evidence was they were leaning in to the front window. That is not the evidence. The evidence from Sergeant Martin was that they were leaning down and in to the passenger side of the car.”

Mr Bass, counsel for the defence, suggested to the judge that the judge’s correction of his closing comments in his speech was erroneous. The point he had made was, as he paraphrased it, “if this was a drugs transaction, whatever conversation was taking place it was taking place through the front passenger window”. The judge rejected that as being the effect of the evidence.

The Court of Appeal noted that the judge was unwise in declining to offer at least some qualification of the criticism he had made of the defence speech. The court observed that it is common-place in criminal trials for some details or emphases to be noted differently by perfectly careful and competent participants in the trial. Given the unanimity from counsel as to what the witness had said, it would have been wiser for the judge firstly, if he wished to do so, to listen to the recording himself, or secondly to accept that the evidence had been given. It would still have been appropriate for the judge to direct the jury that they should consider whether it was of any significance. Given the viewpoint of the officer, how clear could he have been as to whether the speech was directed to the front window, as opposed to the rear window, or both? The judge could properly have set the context by reminding the jury that they were able to replay, or ask to be replayed, the footage which demonstrated the viewpoint of the police as they approached the appellant. If he thought it right, the judge could also have restated the comment that the jury should consider whether defence counsel was extending the point too far, given what they had heard and what they could see. [31]

The Court stated that it did not consider this to be anything like a serious error by the judge. The judge was right that defence counsel, albeit perfectly properly, had made a tactical decision to emphasise this piece of evidence above others. In the opinion of the Court that was about the height of what happened. By far the best evidence on the point, so far as the point was important in any event, was the video footage. The Court had the opportunity to look at the video footage a number of times. There was strong evidence from the footage that the two pedestrians were standing slightly apart, side-by-side and to the nearside of the car. The fairest inference was that they would have been side-by-side each other facing both windows of the car. In addition, the jury would have been perfectly entitled to conclude from the video footage that the rear window had been open all along. [32]

The Court was firmly of the view that, even taking this “error” at its highest, it could not possibly render this conviction unsafe. The judge was right to describe this as a minor point. The remaining aspects of the case against the Appellant were very strong. [33]

The application for summary judgment and injunctive relief sought by the appellants was dismissed. The judge found that there had been no proper service of the proceedings and in view of fundamental issues concerning the validity of the claim form and its service, an interim injunction presently in force, could not continue. The appellants appealed. The second respondent, which was added as the second defendant in the course of the proceedings, was the People for the Ethical Treatment of Animals Foundation (PETA). The Court considered a number of issues.

(1) Whether the judge had erred in deciding that the claim form had not been validly served or that such invalidity could not be cured under CPR 6.16, or CPR 40.12.

The appellants could only succeed if the judge in refusing to exercise his discretionary management powers, had made an error of principle or had otherwise acted outside the bounds of a proper exercise of judicial discretion. It was plain that he had made no error of that kind (see [42] of the judgment).

CPR 40.12 provided that the court might at any time correct an accidental slip or omission in a judgment or order. The slip rule enabled an order to be amended to give effect to the intention of the court by correcting an accidental slip, but it did not enable a court to have second or additional thoughts. In the circumstances of the case, the judge had been fully justified in refusing to exercise his powers under the slip rule (see [43], [44] of the judgment).

Further, on the facts, there had been no proper basis for an order under CPR 6.16 dispensing with service of the claim form (see [48] of the judgment).

Moreover, the appellants were not just asking for dispensation from service on the 121 individuals who could be identified. It was asking for dispensation from service on any of the persons unknown, respondents to the proceedings, even if they had never been served with the order and whether or not they had known of the proceedings. There was no warrant for subjecting all those persons to the jurisdiction of the court (see [49] of the judgment).

Furthermore, it would have been open to the appellants at any time since the commencement of the proceedings to have obtained an order for alternative service which would have a greater likelihood of bringing notice of the proceedings to the attention of protesters at the shop premises, such as by posting the order, the claim form and the particulars of claim on social media to reach a wide audience of potential protesters and by attaching or otherwise exhibiting copies of the order and of the claim form at or nearby those premises. There was no reason why the court’s power to dispense with service of the claim in exceptional circumstances should be used to overcome that failure (see [50] of the judgment). There had been no ‘exceptional circumstances’ that would justify an order under CPR 6.16. (see [52] of the judgment).

Further, it had not been possible to say that in all the circumstances the judge had acted outside the limits of a proper exercise of judicial discretion in failing to order that there had been good service on PETA or that service on PETA should be waived (see [54] of the judgment).

(2) Whether the judge had erred in law in his approach to the summary judgment application and in holding that the appellants’ proposed re-formulation of the description of the first respondents (persons unknown) was an impermissible one.

Proceedings might be commenced, and an interim injunction granted, against ‘persons unknown’ in certain circumstances (see [57] of the judgment).

The ‘persons unknown’ defendants in the claim form were, by definition, people who had not been identified at the time of the commencement of the proceedings. If they had been known and had been identified, they had to be joined as individual defendants to the proceedings. The ‘persons unknown’ defendants had to be people who had not been identified but had been capable of being identified and served with the proceedings, if necessary by alternative service such as could reasonably be expected to bring the proceedings to their attention. In principle, such persons included both anonymous defendants who were identifiable at the time the proceedings commenced but whose names were unknown and also newcomers, namely, people who in the future would join the protest and fall within the description of the ‘persons unknown’. The ‘persons unknown’ had to be defined in the originating process by reference to their conduct which was alleged to be unlawful.

Interim injunctive relief might only be granted if there had been a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.

As in the case of the originating process itself, the defendants subject to the interim injunction had to be individually named if known and identified or, if not and described as ‘persons unknown’, had to be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.

The prohibited acts had to correspond to the threatened tort. They might include lawful conduct if, and only to the extent that, there was no other proportionate means of protecting the claimant’s rights. The terms of the injunction had to be sufficiently clear and precise as to enable persons potentially affected to know what they were prohibited from doing. The prohibited acts had not, therefore, to be described in terms of a legal cause of action, such as trespass or harassment, or nuisance. They might be defined by reference to the defendant’s intention if that was strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant was capable of understanding and the intention was capable of proof without undue complexity. It was better practice, however, to formulate the injunction without reference to the defendant’s intention if the prohibited tortious act could be described in ordinary language without doing so.

The interim injunction should have clear geographical and temporal limits. It had to be time limited because it was an interim and not a final injunction (see [82] of the judgment).

Applying those principles to the present proceedings, it was clear that the claim form had been defective and that the interim injunctions granted had been impermissible (see [83] of the judgment).

(3) Whether a final order could be granted against persons unknown.

A final injunction could not be granted in a protester case against ‘persons unknown’, who had not been parties at the date of the final order, namely newcomers who had not by that time committed the prohibited acts and so had not fallen within the description of the ‘persons unknown’ who had been served with the claim form (see [89] of the judgment).

That had not meant that there had been no scope for making ‘persons unknown’ subject to a final injunction. That was perfectly legitimate provided the persons unknown were confined to those anonymous defendants who were identifiable. The proposed final injunction which the appellants had sought by way of summary judgment had not been so limited (see [91] of the judgment).

The issue was that the appellants had sought to invoke the civil jurisdiction of the courts as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protesters. They had sought to use remedies in private litigation, in effect, to prevent what it had considered to be public disorder. Private law remedies had not been so well suited to such a task. As the present case had demonstrated, what were appropriate permanent controls on such demonstrations had involved complex considerations of private rights, civil liberties, public expectations and local authority policies. Those affected had not been confined to the appellants, its customers and suppliers and protesters. They had included, most graphically in the case of an exclusion zone, the impact on neighbouring properties and businesses, local residents, workers and shoppers (see [93] of the judgment).

In addition, the order sought by the appellants suffered from some of the same defects as the interim injunction (see [94] of the judgment).

The Claimant was in HMP Wakefield and was serving a 10-year default term for non-payment of a confiscation order, following a 25-year prison sentence for drugs offences/fraudulent evasion on prohibition on importation. In these proceedings, the Claimant sought permission to challenge decisions made by HH Judge Zeidman QC, the Honorary Recorder of Redbridge (“the Judge”) in the Crown Court at Snaresbrook.

The Judge determined that the Claimant had a 50% interest in a property in France, Le Manoir at Les Cailletieres, 16170 Genac (“the Property in France”). His daughter and step-son were understood to reside there. At the time when the confiscation order was made on 20 March 2007 pursuant to the Drug Trafficking Act 1994 (“DTA”), the Judge found that the Claimant had benefited from drug trafficking in the sum of £2,340,017.40. The Court excluded the Property in France from the calculation of benefit as there would be a serious risk of injustice were the Property in France to be used to calculate the benefit figure: see section 4(4)(b) DTA.

On 31 March 2017, the Judge granted the CPS’s application for a Certificate under Regulation 11 of the Criminal Justice and Data Protection (Protocol No.36) Regulations 2014 (“the 2014 Regulations”) concerning the Property in France. This was on the basis that property did amount to “proceeds of crime” under the definition in Regulation 3(2)(c)(ii) “any property which is the equivalent in value to the full value or part value of the property”.

On 18 July 2017, the Claimant requested that the Crown Court should grant an extension of time and state a case for the opinion of the High Court. The Claimant submitted that, despite two further attempts, on 22 August 2017 and 4 September 2017, he was unable to get somebody to issue his application for judicial review of the decision not to state a case until it was issued on 3 November 2017.

The claim for judicial review was that the failure of the Crown Court to state a case was unreasonable. The application was dismissed.

The submissions were such that the application for permission in this case was bound to fail. That was because even if it were established that the application to state a case could or should have been dealt with (to the extent that this was not the case), it would have made no difference. Even if a case could have been stated, it would have been bound to fail because the interest of the Claimant in the Property in France had to be seen in the light of the case of R v Moss. As a result, it was considered to be part of the proceeds of an offence even if it were not traceable to the receipt of drugs money. Further and in any event, the proper course would have been to have sought to appeal to the Court of Appeal rather than to have a case stated. However, even if that route had been followed, the case would have been bound to fail because of the reasoning in R v Moss. [34]

In those circumstances, there would be no point in giving relief from sanctions because it would progress a case which was bound to fail. There was no unfairness in this course being adopted. The CPS had stated very clearly its reliance on R v Moss in the grounds of opposition to reinstatement of the CPS dated 18 July 2019 (as well as the correct course being an appeal to the Court of Appeal). This was set out with great clarity at paragraph 27 that “the judgment in Moss also provides a definitive answer to the Claimant’s principal challenge to the certificate made in the instant case.” In conclusion, the final words of the skeleton are that “the underlying claim is misconceived in any event.” [35]

The judicial review proceedings were described as hopeless. There was no prospect of even permission being granted. They were misconceived because the case stated procedure was inappropriate. Any appeal would have to be brought to the Criminal Division of the Court of Appeal. It followed that the resort to judicial review was misconceived. In any event the complaint was also misconceived. The Judge in his ruling on 31 March 2017 stated fully reasons for not granting the certificate, which are unassailable. Further, the Judge’s ruling was entirely consistent with the subsequent judgment of the Court of Appeal in R v Moss. Thus, even if the correct appeal route had been followed, the challenge would have been bound to fail. [41]

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