In this week’s Digest the Court of Appeal quashed a conviction for kidnapping on the basis that hearsay evidence should not have been admitted under section 116 of the Criminal Justice Act 2003, the Court of Appeal considered the valuation of benefit in confiscation proceedings, and the Administrative Court rules on human rights a challenge to the current approach to assisted suicide.
Mustafa Kiziltan v. Regina [2017] EWCA Crim 1461
Judgment available here handed down by Thirlwall LJ in the Court of Appeal (Criminal Division) on 6 October 2017
Mustafa Kiziltan, the appellant, was charged with kidnapping. On 23rd February 2016, Ms Zeynap Yardigi – the appellant’s ex-parnter – alleged that Mr Kiziltan entered her flat with two other men and forced, at knife point, her friend, Mr Ahmed Firat, naked from her flat. He subsequently broke free while Ms Yardigi hid in the bathroom. Mr Firat then positively identified the appellant by an identification procedure.
At trial, Ms Yardigi gave evidence that the appellant was jealous and obsessive when she ended their relationship. She alleged he made constant unwanted visits to her house and on the night of Mr Firat’s kidnapping, accused her of cheating on him. The defence’s case was that it was in fact Ms Yardigi who was driven by jealously and that she had threatened to make false allegations and lie about him in evidence in collusion with Mr Firat. Mr Firat did not attend to give evidence, despite summons. Nevertheless, the judge admitted the statements of Mr Firat under s. 116 (2) (d) of the Criminal Justice Act (CJA) 2003 and gave a direction as to that evidence in summing up, describing the witness’s attitude to providing a statement and attending court. The jury returned a conviction on the 11th November 2017.
The appellant appealed on two grounds:
- the judge was wrong to admit the evidence under s. 116 (2) (d) CJA and failed to properly to assess the reliability of the hearsay evidence; and
- the judge’s direction on the hearsay evidence was inadequate.
On the first ground, the Court considered the evidence concerning Mr Firat: that had said he ‘did not feel right’ about appearing to give evidence; that the judge had found that Mr Firat was never going to attend; and that Mr Firat had deliberately absented himself from the locality and avoided the witness summons. The court held that had the judge had proper regard to the matters of fairness and justice under s. 114 (1) (d) and the proper application of s. 78 PACE, he would have excluded the evidence since the heart of the appellant’s defence was that Ms Yardigi had colluded with Ms Firat to make allegations against the appellant.
On the second ground, the court held that the trial judge did not go as far as he should have in giving a direction on the hearsay evidence. He fell short in that he should have left it for the jury to consider that there may be a link between the reason for Mr Firat’s absence and the defence’s assertion that he had colluded with Ms Yardigi to place the appellant at the scene. If there was, he should have asked the jury whether this would affect their view of his credibility. The appellant’s conviction was quashed.
Wang Yam v. Regina [2017] EWCA Crim 1414
Judgment available here handed down by Thomas LCJ, Sweeney J and May J in the Court of Appeal (Criminal Division) on 29 September 2017.
The appellant, Mr Wang Yam, was indicted on six Counts in 2008: (1) the murder of Allan Chappellow (the deceased); (2)/(3) burglary/theft relating to four cheques; (4) handling those cheques; (5) obtaining a money transfer of £20,000; (6) theft of £20. In March 2008, the appellant was convicted on Counts (4), (5) and (6); the jury was unable to reach a verdict on Counts (1) – (3). Following a retrial in January 2009, he was convicted on Counts (1) and (2). The subject of this appeal was whether his conviction for murder should be quashed on the basis that:
- a non-disclosure by the police force and CPS denied the defence the opportunity to present an alternative suspect for the jury’s consideration; and
- in light of the above, taken with the lack of evidence directly connecting the appellant with the murder of the deceased, there was a real possibility the conviction was unsafe.
The deceased was a reclusive writer who had become increasingly vulnerable. His body was discovered in his home on 14th June 2006 and the Pathologist favoured death having occurred soon after the deceased was last seen alive on 8th of May 2006. Between May and June 2006, there was strange activity in respect of a number of the deceased’s financial products, personal email accounts, and telephone numbers. There was also evidence of forced entry into the deceased’s house and interference with his personal mail. Several phone calls were made and emails sent by individuals purporting to be the deceased. The email account was accessed last by the appellant from Brussels before he travelled to Switzerland with his partner. He was extradited from Switzerland and charged.
The evidence on which the appellant was convicted consisted of a number of conflicting expert analyses of telephone calls allegedly made by the appellant. It was the Crown’s case that the burglary, theft and murder were all connected offences, committed by the appellant. The circumstantial evidence upon which the Crown based their evidence boiled down to the dire financial status of the appellant and the close connection physically between the deceased’s residence and the locations where the alleged frauds on the deceased’s accounts occurred.
The Court of Appeal heard witnesses de bene esse. One witness of them was able to place other persons at the deceased’s residence. Another reported interference with his mail and accompanying threats. The court found the fresh evidence admissible under s. 23 of the Criminal Appeals Act 1968, but held that, on an application of the principles to be applied to a consideration of fresh evidence ( see R v. Pendleton [2002] 1 WLR 72, paras 16-19, per Lord Bingham; esp. McInnes v. HM Advocate [2010] UKSC 7), it disclosed no grounds for allowing the appeal . As such, the evidence was not admitted and there was no basis for a conclusion the new evidence would have affected the jury’s decision in this case.
R v. Mehmet Bala [2017] EWCA Crim 1460
Judgment available here handed down by Thirlwall LJ in the Court of Appeal (Criminal Division) on 6 October 2017.
This appeal arose out of the appellant’s application for an extension of time of ten years to apply for leave to appeal against his sentence and to adduce fresh evidence. The appellant had, in July 2006, pushed a stranger in front of a train at Highbury and Islington underground station, after he had lost £150 gambling. The appellant was interviewed by two psychiatrists and deemed fit to be interviewed and detained; the diagnosis was a paranoid psychotic illness, but not one serious enough to warrant admission to hospital. After being remanded in custody, conflicting medical reports were obtained regarding the appellant’s fitness to plead. The Crown’s expert gave evidence at a pre-trial hearing that the appellant’s mental illness would have ‘substantially impaired his responsibility’, but, notwithstanding this, he went on to say that, in his opinion, he would have still known his actions were wrong. Thus, it was the Crown’s expert’s professional opinion that the appellant was fit to stand trial, and that if a plea to manslaughter on the grounds of diminished responsibility were accepted by the court, this was a case for a hospital order under s. 37 of the Mental Health Act (MHA) 1983, with a s. 41 restriction. The appellant’s case was adjourned for an assessment at Broadmoor under ss. 48 and 49 of the MHA. This assessment conflicted with the previous evidence in that the ‘symptoms of psychosis were unlikely to have been a significant cause of the appellant’s behaviour in committing the index offence’; there was, accordingly, no recommendation to the court in respect of sentencing. A final expert reviewed the previous psychiatric assessments and then interviewed the appellant before sentencing. He then recommended to the court that the appropriate disposal was an order under s. 37 of the MHA together with a restriction under s. 41, as the appellant was suffering from a form of paranoid schizophrenia.
Despite the appellant’s counsel’s urging and the weight of expert evidence, the judge did not make a hospital order. It was the appellant’s case on appeal that the judge was wrong in this approach. The fresh medical evidence, in the form of two further expert reports, did not demonstrate that the offending was entirely due to the mental disorder and thus the judge could not have been satisfied of s. 37(2)(b) of the MHA. The decision was upheld and the appeal dismissed.
The court added that it seemed the real purpose of the appeal was to move the appellant from the release regime consequent upon a life sentence to a the regime consequent upon a hospital order; this was not the correct basis for an appeal, if the original sentence was correct in principle, but a matter for the Parole Board.
Dr Michael James Norton Brookman v. General Medical Council [2017] EWHC 2400 (Admin)
Judgment available here handed down by Holgate J in the Administrative Court on 29 September 2017.
The appellant had trained to be a doctor later in life and, in March 2014, began work as a locum. In April 2014, the General Medical Council (GMC) wrote to the appellant informing him that it had opened an investigation following a complaint he had carried out an inappropriate sexually motivated examination of a female patient. At an Interim Orders Tribunal (IOT), under s. 41A of the Medical Act (MA) 1983, conditions were imposed on the appellant’s registration as a medical practitioner and he was required to notify certain parties of the conditions, including any potential employer. His next hospital placement was cancelled, in view of the IOT’s order. Since that cancellation, the appellant sought work in education but he was dismissed from a lectureship at Bournemouth University following student complaints and an offer of employment from Swansea University was withdrawn, after he – finally – informed them of the conditions currently imposed upon his registration and the disciplinary proceedings arising out of the complaints from Bournemouth students. The Medical Practitioners Tribunal Service (MPTS), following a hearing at which the appellant was largely unrepresented and which was conducted in part in his absence, decided that the appropriate sanction was erasure; failing to notify his employers of his conditions and previous complaints justified a finding of dishonest conduct sufficiently serious to warrant a finding that his fitness to practice was impaired. Immediate suspension followed erasure.
The appellant appealed on a number of grounds (23 in total), but these were distilled under the eight substantive headings. The ground on which the appellant succeeded was that the tribunal had made their decision without an up to date health assessment. The appellant’s case was that the MPTS had erred in law in not requiring a further health assessment to address concerns it had raised on day 9 of the hearing. In 2013, the appellant had been diagnosed as suffering from depression and had been taking anti-depressants. The tribunal raised a number of concerns arising out of this information, but the MPTS failed to obtain evidence regarding the potential impact of the appellant’s mental health on his actions. Thus the findings of the tribunal regarding the misconduct of the appellant were tainted by this procedural irregularity. Thus, the MPTS’s decision was quashed and the appeal allowed without remittance to the MPTS, pursuant to s. 40(7)(b) MA.
Noel Douglas Conway v. Secretary of State for Justice [2017] EWHC 2447 (Admin)
Judgment available here handed down by Sales LJ in the Administrative Court on 5 October 2017.
The applicant suffered from a form of Motor Neurone Disease (MND) with a prognosis of 6 months to live. He had expressed the wish to have the option of taking action to end his life at a time of his choosing. The applicant’s case was that s.2 of the Suicide Act 1961 is a blanket ban on the provision of assisted suicide which constitutes an interference with Mr Conway’s right of respect for his private life under Article 8 of the ECHR, as adopted as a Convention right for the purposes of the HRA 1998. As such, a declaration of incompatibly under s. 4 HRA was argued to be the appropriate relief. The Secretary of State conceded that prohibition against assisted suicide set out in s. 2 did represent an interference with the applicant’s right to respect for his private life under Art. 8(1) (as established under Pretty v. United Kingdom (2002) 35 EHRR 1, para. 67; Hass v. Switzerland (2011) 53 EHRR 33, para. 51; R (Purdy) v. DPP [2009] UKHL 54; R (Nicklinkson) v. Ministry of Justice [2014] UKSC 38). However, the Secretary of State submitted that this interference under Art. 8(1) is justified under Art. 8(2), the prohibition on assisted suicide being ‘necessary in a democratic society’ as a proportionate measure ‘for the protection of health’.
No alternative interpretation of s. 2 of the Suicide Act could be given to it pursuant to s. 3 of the HRA and so a declaration of incompatibility was the only conceivable relief. In the view of the court, however, the prohibition in s. 2 achieved a fair balance between the interests of the wider community and the interests of people in the position of the applicant. Two points weighed heavily with the Court; the first was that the proportionality of the blanket prohibition under s. 2, having particular regard to the aim of protecting the weak and the vulnerable, had been confirmed in relation to someone suffering from MND by the House of Lords and by the European Court of Human Rights in Pretty case. Second, the standard of palliative care available to the applicant meant that his interests were likely to be less badly affected by the interference with his Art. 8 rights such that his options could not fairly be characterised as amounting to a form of cruelty.
ARB v. IVF Hammersmith Ltd and R [2017] EWHC 2438 (QB)
Judgment available here handed down by Jay J in the Queen’s Bench Division on 6 October 2017.
The claimant brought proceedings against his IVF clinic on the grounds that a Consent to Thawing of Embryos had been obtained without his consent by his estranged partner. It followed, in the claimant’s submission , that the IVF clinic must bear the financial consequences of the unwanted child, particularly for bringing her up. The clinic, in turn, brought CPR Part 20 proceedings against the claimant’s estranged partner for an indemnity. The judge noted that this was an incredibly complex civil case.
The defendant succeeded primarily on a ground of legal policy. The Court followed the guidance of the House of Lords in Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 where a mother, having undergone a negligently performed sterilisation procedure, had an ‘unwanted’ child. She was not able to recover for the cost of providing for the child. Members of the House in that case gave varying reasons for the policy underpinning the legal position that one cannot recover for the financial burden of raising a child, even if unwanted. These reasons ranged from the blessings bestowed by the birth of a healthy baby (Lord Steyn) to the impossibility of the detriment/benefit analysis in such a case. Thus, the Court in ARB applied Rees, emphasising the prevalence of the same policy concerns.
Sentencing Remarks: R v. Aaron Barley, HHJ Carr, Birmingham Crown Court, 04/10/2017
The defendant had been taken in during the Spring of 2016 by the Wilkinson family. They wanted to help him, since at the time he was destitute and homeless. The family arranged for a job for the defendant and even bought him a mobile phone. On Thursday 30th March 2017, once Mr Wilkinson had left to walk the dog at 0730, the defendant emerged from where he had been concealing himself in the family’s garden shed, took a knife from the kitchen and repeatedly stabbed both Mrs Wilkinson and Pierce, their 13 year old son, to death. The defendant then attacked Mr Wilkinson, which was caught on CCTV, but he managed to call the police. The defendant fled the scene in the family’s Land Rover. The police pursued him as the defendant drove increasingly dangerously to evade arrest. He injured at least two police officers in the pursuit before finally crashing into a driveway wall.
According to HHJ Carr, the defendant’s conduct disclosed a significant degree of planning and premeditation and there was no remorse on the part of the defendant. The judge commented: ‘You knew that you were destroying the family. It is what you intended’. The defendant had 14 previous convictions for 21 offences, which included possession of a prohibited firearm and a domestic assault. Mitigating factors included the defendants personality disorder, his emotional instability and the fact that he pled guilty to the charges. The judge commented that this itself took a while, as counsel investigated the possibility of a partial defence on grounds of diminished responsibility; psychological evaluations disclosed no such grounds.
The judge imposed the mandatory life sentence. In accordance with schedule 21 of the Criminal Justice Act 2003, the defendant received a minimum term of 30 years for the murders of Mrs Wilkinson and her son. On the count of attempted murder, the judge characterized this offence as leading to serious and long term physical and psychological harm. She thus imposed a concurrent life sentence, with the minimum term set at 10 years.
Other news
Child on child sexual assaults soar, police figures reveal
Figures released by police forces all over the country have revealed that reports of children sexually harassing one another has risen by 71% from since 2013. Staggeringly, 74% of those incidents reported between April 2013 and May 2017 went unreported.
Source: Guardian Law (https://www.theguardian.com/society/2017/oct/09/child-on-child-sexual-assaults-soar-police-figures-reveal#img-1)
New Court complex planned to bolster City of London post Brexit
A new major court complex, which will deal primarily with cybercrime and fraud is to be built to promote the UK’s legal services after the United Kingdom leaves the European Union. The project is estimated to cost upwards of tens of millions of pounds.
Source: Guardian Law (https://www.theguardian.com/law/2017/oct/09/new-court-complex-planned-bolster-city-london-after-brexit)
Judge cleared of making inappropriate remarks in modern slavery case
In a case concerning travelers and conditions of their workers, a Crown Court judge endorsed the view that this was happening in all travelers’ camps up and down the country. This triggered a complaint from the chair of the National Alliance of Gypsy Traveler and Roma Women, which was subsequently investigated by the Judicial Conduct Investigations Office. The complaint was dismissed.
Source: Guardian Law (https://www.theguardian.com/uk-news/2017/oct/05/judge-cleared-of-making-inappropriate-comments-in-modern-slavery-case)