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.

 

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.

 

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.

 

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.

 

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’.

 

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.

 

Sentencing Remarks: R v. Aaron Barley, HHJ Carr, Birmingham Crown Court, 04/10/2017

 

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