Weekly Digest: 9 September 2019

The Applicant was convicted after trial of two counts of possession of an explosive substance with intent, contrary to s.3(1)(b) of the Explosive Substances Act 1883 and one count (count 3) of preparation for terrorist acts, contrary to s.5(1)(a) of the Terrorism Act 2006. He was sentenced on counts 1 and 2 to imprisonment for life and in respect of count 3, he was sentenced to imprisonment for life. In the course of the Applicant’s trial, the prosecution (“the Respondent”) twice saw the Judge on an ex parte basis. The purpose of those discussions was to inform the Judge of non-disclosable sensitive material the ignorance of which might lead to the Judge inadvertently mismanaging the trial. The Applicant submitted that there was no lawful authority for the two ex parte hearings which contravened the principle of open, public justice. Accordingly, the ex parte hearings amounted to a material irregularity and the Applicant’s convictions were unsafe.

The Court dismissed the appeal against the conviction. The ex parte notification did not amount to a material irregularity and the conviction and sentence was safe. The renewed application for leave to appeal against sentence was also refused.

The Court considered that the principle of open justice forms the starting point of this discussion and informs it throughout. A corollary is that a defendant in criminal proceedings is and must be entitled to be present and participate fully in his trial. However, the basis for a principled but exceptional departure from the general rule of open justice may be found in the Court’s inherent power to control its own proceedings. If, exceptionally, it is necessary for the prosecution to see the Judge ex parte to avoid the risk of the inadvertent mis-management of the trial occasioning unfairness to the defendant, then it would be regrettable if a blanket procedural prohibition stood in the way of doing practical justice. The Court considered that the principled basis for the Court holding ex parte notification hearings is to be found in the Court’s inherent jurisdiction to control its own proceedings to ensure fairness and conduct criminal trials justly. But the Court emphasised that the circumstances must be exceptional to warrant a departure from open justice going so far as to justify a hearing ex parte, by definition, in the absence of the defendant.

Ex parte notification hearings may be justified where the following conditions are met: (1) the need must be exceptional; (2) there must be no practicable inter partes alternative; (3) the ex parte notification hearing must be necessary in the interests of justice to avoid the risk of inadvertent mismanagement of the trial occasioning unfairness to the defendant and; (4) the material shown to the Judge and the discussion at the notification hearing must be kept to a minimum and confined to what is necessary to achieve the purpose of the notification hearing.

The Court went on to note that it is essential if such hearings are to continue that the practice be placed on a sounder and more appropriate footing. Practice to date has arisen solely based on the CPS Manual which, although a valuable document, is of no legal authority. As a result, the Court invited the Criminal Procedure Rules Committee to consider and, if necessary, refine the procedure to govern notification hearings, including the circumstances in which such hearings can take place and the limits to be placed upon them.

The appellant (G) appealed against his conviction, by the Court Martial, for battery. G was a member of the Royal Air Force. He was tried by a board of lay members which comprised army personnel, but no RAF personnel.

The issue was whether the board had been properly constituted. G submitted that the general provisions in relation to Court Martial hearings in the 2006 Act were not self-sufficient. He relied on the Queen’s Regulations, made under the Air Force (Constitution) Act 1917 s.2(1), arguing that they contained mandatory provisions which required a Court Martial board to be composed with lay members from a defendant’s own service. Paragraph 4 of the Queen’s Regulations stated:

“(1) A Service defendant will ordinarily be tried by lay members of wholly his own service. (2) However, where a defendant is tried with a co-defendant from a different Service, the lay membership of the court will be a mixture of Service personnel from different Services. (3) Each defendant will always have at least one lay member of his own Service on the board”.

The Court dismissed the appeal. Sections 154-157 of the 2006 Act did not prohibit mixed boards or boards drawing their lay members from a service other than the defendant’s. Under s.156, qualification of officers and warrant officers for membership of court martials hinged on service in “any of Her Majesty’s forces”. The Armed Forces (Court Martial) Rules 2009 also dealt with the constitution of court martials, but contained no requirement that the lay members should be from the same service as the defendant.

There was no doubt that the Queen’s Regulations were a species of delegated or subordinate legislation which plainly had the status of law. They remained in force and had not been repealed. However, they had to give way to the primary legislation contained in the 2006 Act in the event of a conflict. In sentence (1) of paragraph 4 “ordinarily” did not mean “invariably” and the first sentence could not be construed as containing a mandatory rule which had to be followed in all cases. The word “However” at the beginning of sentence (2) left sentence (1) untouched and introduced a different regime for cases where a defendant was being tried together with a co-defendant from a different service. On its natural meaning, sentence (3) related only to sentence (2) and not to sentence (1).

The primary legislation contained in the 2006 Act was permissive and did not prohibit court martial boards from being comprised of suitably qualified officers and warrant officers drawn from any service. The usual practice, embodied in sentence (1) of para.4 of the Queen’s Regulations, was that a defendant would be tried by lay members of his own service. However, sentence (1) did not contain an invariable or mandatory rule, still less a rule with jurisdictional implications if breached. Sections 154-157 of the 2006 Act and sentence (1) of para.4 of the Queen’s Regulations were not incompatible.

The magistrates’ court had committed the appellant to the Crown Court for sentence after he pleaded guilty to criminal damage to the value of less than £5,000. He subsequently pleaded guilty in the Crown Court to four counts on an indictment (which did not include criminal damage) and was sentenced to 28 months’ imprisonment, including a concurrent term of three weeks’ imprisonment for criminal damage. After appealing against his sentence, it was reduced to 21 months and the criminal damage conviction was quashed on the basis that the committal had been defective because it was a summary-only offence, not an offence triable on indictment, and the Crown Court had no jurisdiction to impose a sentence in relation to it.

The Crown argued that the consequence of a defective committal was that the offence was not lawfully before the Crown Court, and the Court of Appeal had no power to order the quashing of the underlying conviction because its jurisdiction was confined under the Criminal Appeal Act 1968 s.1 to “an offence on indictment”. The criminal damage offence had come before the Crown Court on a committal, not on an indictment.

The Court considered that the solution to the procedural irregularity was as follows:

(a) The previous ultra vires decision quashing the conviction on the summary charge was withdrawn, and altered so as to correct a nullity due to lack of jurisdiction following the Court’s recent caselaw (see Yasain [2015] EWCA Crim 1277).

(b) The Court reconstituted itself as a Divisional Court of the Queen’s Bench Division, granted permission to proceed with a claim for judicial review of the magistrates’ court decision to commit for sentence, dispensed with service of the claim, abridged time and heard the claim. The unlawful committal to the Crown Court for sentence for criminal damage was then quashed.

(c) The presiding judge of the court constituted himself a district judge under the Courts Act 2003 s.66(1). Section 66(1AA), as amended, extended that power to “an ordinary member of the Court of Appeal”.

(d) In the highly unusual circumstances, and bearing in mind the sentence passed on the indicted charges, an absolute discharge was imposed under the Powers of Criminal Courts (Sentencing) Act 2000 s.12 in respect of the criminal damage offence.

The Applicant was arrested on suspicion of drug supply. He had picked up a known drug user in a car and travelled a short distance before letting her out again. Another woman, Ms Redding was seated in the front passenger seat. A total of £305.00 in cash was found under the driver’s side sun visor, as well as two “burner” mobile telephones. An expert drew the conclusion that there were drug dealing messages on the phones. At an address linked to the Applicant, the police found heroin, cocaine and other drug paraphernalia in a safe. Officers found another safe located at Ms Redding’s address and between the two safes, officers recovered a total of £29,914.68 in cash. Ms Redding was also found with a number of wraps of crack cocaine and heroin on her person. The Judge found that the offending fell into Category 2 harm, not Category 3 as had been submitted. In considering culpability, the Judge said that the Applicant had a “leading role”, rather than a “significant role”. The Applicant challenges both of these findings.

The Court granted leave to appeal against the sentence. The appeal was allowed by substituting a sentence of six years and nine months’ imprisonment for the sentence of eight years and two months’ imprisonment imposed by the Judge.

The Court found that the combination of cash and drugs is a legitimate approach to an assessment of the category. Thus, a quantity of drugs which by itself would not suffice a Category 2 categorisation, could, with cash on top, be so categorised. The Court, nonetheless, accepted the need for caution as to how far that goes in the circumstances of this case. There is sufficient material (drugs and money) to make a finding that the possession of almost £30,000 from drug dealing, of which some part was likely to be profit, did bring the matter into category 2, rather than category 3. However, this Court could not be as confident as the Judge was, absent more precise information, to find that the cash was the equivalent of half a kilogram. The Court determined that this is a case which falls into Category 2, albeit beneath the indicative quantity of 1 kilogram.

The Court found that, in all the circumstances, there was sufficient material for the Judge to find evidence of involvement in a “leading role” which went beyond street dealing. The evidence in particular of large quantities of drugs and cash, keys and safes at different addresses has more than one of the indicia of a “leading role” being satisfied. However, the Court considered that this is a case where the Applicant stood to be sentenced for a leading role, but below the centre of the scale for a leading role. The Judge sentenced the Applicant on the basis that he was at the starting point for both Category 2 and leading role. However, taking into account the Court’s conclusions both as regards category and role that the Applicant was below the centre of the scale, the Court concluded that the sentence of eleven years’ imprisonment, before credit for the guilty plea, was manifestly excessive. Instead the Judge ought to have reached the view that the sentence, before the guilty plea, should have been nine years, rather than eleven years’ imprisonment. Giving the applicant credit of 25 per cent for his guilty plea, the sentence should be six years and nine months’ imprisonment.

On 4 March 2018, the Appellant was arrested after the police had responded to a break-in at a compound. He was in possession of a lock-pit kit (offence: going equipped for theft). Vehicle batteries had been removed from two of the lorries (offences: theft from motor vehicles), whilst a third vehicle had evidence of an attempt to remove its battery (offence: attempted theft from a motor vehicle). Two days later it was discovered that batteries had been removed from another lorry (offence: theft from a motor vehicle). The Appellant was released pending investigation. On 5 May 2018, a driver was told his van had been broken into and tools had been stolen (offence: theft from a motor vehicle). On 20 September 2018, tools were discovered stolen from a construction firm (offence: burglary). On 29 September 2018, tools, including a screwdriver, torch, gloves and a hammer (offence: going equipped for theft) and several sharp implements (offence: possessing a bladed article in a public place) were found within a rucksack belonging to the appellant. The Appellant was found to have a driving licence and bank card which had been reported missing (offence: handling stolen goods). Two days later, staff at the University of Reading discovered that three laptop computers, a camera, a cash box and a bag had been stolen during the course of a burglary. These items had previously been found in the appellant’s possession (offence: handling stolen goods). On 23 October 2018, the Appellant fought with a building duty manager after he tried to detain him (offence: assault by beating). When the appellant was searched, the police found several tools, including a large set of bolt croppers, a chisel, a screwdriver, a hacksaw, a number of razor blades and a paint scraper (offence: going equipped for theft).

The Court dismissed the appeal. The sentencing remarks were clear and the sentences were carefully structured. Furthermore, the Recorder was entitled to pass consecutive sentences in relation to the offences. The offending was repeated, directed against different victims, and the assault by beating was of a different type of offence. Having been arrested at an early stage in the course of his offending, the appellant continued to offend. As the Sentencing Council Definitive Guidelines on Totality make clear, consecutive sentences may be passed in these circumstances to reflect the overall criminality. However, as these guidelines also make clear, if such an approach is adopted, the court must review the overall sentence and consider whether it is just and proportionate. The Court remarked that it might have given greater effect to the principle of totality, but not to the extent that it was persuaded that the overall sentence was contrary to principle or led to an overall sentence that was manifestly excessive. The dishonesty in this case was persistent, planned and would inevitably have caused harm to the victims beyond the value of the stolen items.

The Appellant was searched by police and a package containing Class A drugs was found in the pocket of his jeans. It contained eight wraps of heroin and five wraps of crack cocaine. There were also seized from him a mobile telephone, a key and £41.20 in cash. On 17^th June 2019, in the Crown Court at Maidstone, having earlier pleaded guilty to two counts of possession of a controlled drug of Class A with intent to supply, the Appellant was sentenced by His Honour Judge Thomas to concurrent terms of eighteen months’ immediate detention in a young offender institution. Counsel on the Appellant’s behalf submitted that sentence ought in all the circumstances to have been suspended.

The Court allowed the appeal to the extent of quashing the sentence of immediate detention and in its place imposing a suspended sentence of detention. In circumstances where the Appellant has served nine weeks in custody, there are no conditions attached to the suspended sentence. The sentence was varied by replacing the concurrent sentences of immediate detention of eighteen months in respect of each of counts 1 and 2 with concurrent sentences of eighteen months’ detention on each count, suspended for two years from the date of sentence.

The Court considered that the Judge should have engaged more with the facts of the Appellant’s case. Had he done so, it would have been appreciated that such was the Appellant’s mitigation about him being exploited and set up by others, his personal circumstances and the other matters prayed in aid on his behalf that a suspended sentence was justified. The Appellant’s background and the prospects of his rehabilitation were a material consideration. He grew up in an area where gang violence and drug dealing is considered to be almost commonplace. Despite this, until the matters for which he was before the Court, he had succeeded in avoiding such offending and had been of previous good character. In the judgment of the Court, this was a case where the sentence of detention should have been suspended. That would have followed from the basis of the plea, from the mitigation referred to above, including the fact that the Appellant was exploited and set up by others, and his personal circumstances. This was not a case where the only option was a sentence of immediate detention in a young offender institution. It followed from the above that there was real mitigation in this case and that the Judge adopted too rigid an approach in not suspending the sentence.

A civil liberties campaigner applied for judicial review of the defendant police force’s use of automated facial recognition technology (AFR). Using AFR involved processing the facial biometric data of members of the public. The technology had been used by the police force in a pilot project which involved deployment of surveillance cameras to capture digital images of people, which were then processed and compared with images of persons on police watch lists. If no match was made, the facial biometrics or image of scanned persons were immediately and automatically deleted. The claimant contended that the use of AFR interfered with his ECHR Article 8(1) right, was contrary to the requirements of data protection legislation and failed to comply with the public-sector equality duty under the Equality Act 2010 s.149(1).

The Court refused the application. Regarding the claimant’s Article 8 rights, the use of AFR did entail infringement of the art.8(1) rights of those in the claimant’s position. However, the police’s common law powers were “amply sufficient” in relation to the use of AFR; they did not need new express statutory powers. There was also a clear and sufficient legal framework governing whether, when and how it could be used. It was important to focus on the substance of the actions that use of AFR entailed, not simply that it involved deployment by the police of an emerging technology. The legal framework within which AFR operated comprised three elements, in addition to the common law: primary legislation, in the form of the data protection legislation; secondary legislative instruments in the form of codes of practice issued under primary legislation, including the Surveillance Camera Code; and the police force’s own local policies. Each element provided legally enforceable standards. When considered collectively against the backdrop of the common law, the use of AFR was sufficiently foreseeable and accessible for the purpose of the “in accordance with the law” standard under Article 8(2). The use of AFR relied on by the claimant struck a fair balance and was not disproportionate; it was deployed in an open and transparent way, with significant public engagement.

The primary point of dispute in respect of the Data Protection Act 1998 s.4(4) was the extent to which using AFR entailed processing personal data. There were two routes by which the data could be considered “personal data”: indirect identification and individuation. However, the processing of the claimant’s image was processing of his personal data only by the second route. The information recorded individuated, or singled a person out and distinguished them, from others. The biometric facial data was qualitatively different and clearly comprised personal data because it permitted immediate identification of a person. The police were therefore required to process that data consistently with the data protection principles. The claimant’s case rested only on the first principle that personal data had to be processed lawfully and fairly. The use of AFR on the occasions relied on satisfied that condition. It was necessary for the police’s legitimate interests taking account of the common law obligation to prevent and detect crime. Under the Data Protection Act 2018 (2018 Act) s.34(3), competent authorities had to be able to demonstrate compliance with Pt 3 Ch.2 of the Act. The operation of AFR involved the sensitive processing of the biometric data of members of the public not on the watchlist. However, it also satisfied the first two requirements in s.35(5) of the 2018 Act as being necessary for law enforcement purposes and in meeting at least one of the conditions in Sch.8. The impact assessment prepared by the police met the requirements of s.64 of the 2018 Act. The claimant’s criticism on that point was therefore without foundation.

Regarding the public-sector equality duty, the claimant’s criticism was that the police had not considered the possibility that AFR might produce results that were indirectly discriminatory on grounds of sex and/or race because it produced a higher rate of false positive matches for female and/or black and minority ethnic faces. However, there was no suggestion that when the AFR trial started the police force had, or should have, recognised that the software might operate in an indirectly discriminatory way. There was still no firm evidence suggesting indirect discrimination. The possibility of future investigation did not make good the argument that, to date, the police force had failed to comply with its duty. The police force had continued to review events against the relevant criteria. That was the approach required by the public-sector equality duty in the context of a trial process.

Figures released by the Home Office reveal that 33 far-right extremists were held under anti-terror laws in 2018, an increase that coincided with another fall in the number of Islamist extremists detained, from 185 in the year to the end of June 2017, to 171 in the year to the end of June 2019. The figure compares with the 28, 10 and six people from a suspected far-right background who were detained in the previous three years.

The full piece can be read here.

Cressida Dick, Commissioner of the Metropolitan Police, has stated that advances in facial recognition technology, artificial intelligence and robotics necessitate a new code of ethics and strict legal framework to maintain public trust, as she renewed her commitment to using new technology to combat crime.

The full piece can be read here (paywall applies).

In a letter by Labour MP Sarah Champion and signed by the Centre for Women’s Justice, End Violence Against Women Coalition, Rape Crisis, Refuge and Women’s Aid, the Government has been urged to change the law to ensure domestic and sexual abuse victims are not at risk when their attackers are on bail. The letter highlights changes made to police bail which have left thousands of alleged attackers without restrictions. The letter calls for a legal presumption that alleged abusers or attackers can only be released from custody when bail conditions are in force.

The full piece can be read here.