Weekly Digest: 2018 roundup

The appellant, who suffered from a learning disability with associated memory deficiency, problems with articulation, and confusion, was convicted of an offence of sexual activity by a care worker with a person with a mental disability, contrary to s. 33 of the Sexual Offences Act 2003. The victim, who suffered from dementia and was doubly incontinent, sustained injuries including 6-8 cm vaginal tear, which it was the prosecution case was caused by the appellant. There was no direct evidence, but the prosecution relied heavily on a joint statement from the medical experts who agreed that the injuries were at least consistent with forceful penetration by a penis or penis-sized object, and the fact that there was no evidence that the victim had been injured before she was alone with the appellant in her room. The appellant, who was treated as a normally-functioning adult, gave evidence and was cross-examined. The appellant challenged his conviction on two grounds: (1) inadequate consideration had been given at trial to his learning disability; and (2) the joint statement by the experts on the victim’s injuries was flawed and of no real assistance to the jury, and, consequently, alternative explanations for those injuries were never properly explored.

The appeal was allowed, and the conviction quashed. Regarding the appellant’s second ground, although the joint statement put before the jury was not as helpful as it could have been, the Court was not persuaded that it should accept fresh medical evidence, which advanced the theory that the victim’s injuries were caused in the hospital, as it did not provide a ground for allowing the appeal (s. 23(2)(b) Criminal Appeal Act 1968 (“the 1968 Act”)). Further, there was no reasonable explanation for the failure to address this issue at trial (s. 23(2)(d) of the 1968 Act). The first limb of the appellant’s argument on appeal, however, did provide grounds for allowing the appeal. The fresh psychological evidence which the appellant sought to adduce met the tests in s. 23 of the 1968 Act. That evidence made it clear that the appellant would have had difficulty in dealing with the leading questions put to him in cross-examination and that might have left the jury with a false impression. Although the circumstances in which new medical and psychological evidence could be successfully deployed many years after a trial in order to challenge a conviction were likely to be very rare, the highly unusual circumstances of the instant case meant that the appellant’s conviction could not be regarded as safe.

Staff at the applicant’s (S) college were concerned he was being radicalised and held extremist views. On a messaging forum, security service officers role-played like-minded individuals. In subsequent messages, S referred to detonating a bomb in a crowded London area. Without this chat material there would have been insufficient evidence to proceed with the prosecution against S for preparing terrorist acts. S applied to have the chat excluded and/or to stay the proceedings as an abuse of process, arguing in particular that he had been entrapped into committing the offence. The judge rejected those submissions and S pleaded guilty and was sentenced to life imprisonment. S appealed against the judge’s ruling, on the grounds that the common law on entrapment, as derived from Attorney General’s Reference (No. 3 of 2000) [2001] UKHL 53 (R v Loosely), was no longer compatible with article 6 ECHR and the ECtHR jurisprudence. As such, the continued application of Loosely should be clarified.

The appeal was refused. Regarding the compatibility of Loosely with article 6 ECHR, the Court reviewed both the common law entrapment cases and the ECtHR jurisprudence on the issue (see [67] – [90] and [91] – [106] respectively) and found that it remains compatible. A number of points became clear. First, the rationale for the law was the same at common law and in the ECtHR jurisprudence: there was a balance to be struck between the need for intrusive policing techniques and the right to a fair trial. Second, the definitions were essentially the same in both approaches. Third, the ECtHR’s reference to state agents acting in an “essentially passive” manner did not mean that they were confined to being passive observers only. There was a difference between the state presenting the individual with an unexceptional opportunity to commit a crime and the state punishing an individual for a crime which it itself had instigated; the former was compliant with article 6, while the latter was the mischief at which the entrapment doctrine was aimed. Similarly, the ECtHR’s emphasis on reasonable grounds for suspicion that the suspect would commit the offence at the commencement of the undercover operation was present in the common law approach. Suspicion of a particular individual was not always necessary; a particular locality or activity, including a chatroom, could come under a bona fide investigation. Fourth, there was no material difference in the obligations on the prosecution regarding disclosure in both approaches.

In this particular case, there was no arguable case of entrapment. S had made contact with someone he thought was sympathetic to terrorist violence. His words conveyed the irresistible inference that he already had a plan in mind. From then onwards there was at least a reasonable suspicion that he intended to commit an offence. The role-players had not gone beyond offering S an unexceptional opportunity to commit the crime. They remained responsive, while S had been determined and committed in planning an attack.

Further, at the heart of S’s application had been the submission that the burden of proof in such a case was on the respondent. The ECtHR approach suggested that, where there was an arguable incitement allegation, the burden of proof was on the state to disprove incitement. The judge had applied the English approach and found that S had not proved an abuse of process. That approach could be supported under the ECtHR jurisprudence on the basis that S’s entrapment allegation was not arguable, so no burden arose on the state. Even if there had been a burden on the state, the court was satisfied that it was not arguable that the role-players had gone beyond providing an unexceptional opportunity for committing the offence. Therefore, whether there was in fact a difference between the two approaches was immaterial for S’s case.

The appellant was convicted of a number of sexual offences and sentenced to 21 years’ imprisonment. The counts on the indictment material to this appeal were two counts of rape contrary to s. 1(1) of the Sexual Offences Act 1956; it was alleged by the prosecution that penetrated MR, who was aged 15 – 16 at the time, on two occasions, ejaculating inside him on one of them. The indictment stated that the first offence had taken place between June 1992 and June 1993 and the second between June 1991 and June 1993. The appellant appealed, having been granted the appropriate extension of time, against conviction on the basis that those two counts of rape should have been charged as buggery pursuant to s. 12(1) of the 1956 Act, as opposed to under s. 1(1) of the 1956 Act. Accordingly, the appellant also sought to challenge his sentence.

The appeal against conviction was allowed. The Crown conceded that the offence under s. 12(1) of the 1956 Act should have been charged but invited the court to substitute guilty verdicts of buggery contrary to s. 12(1) for the appellant’s quashed convictions pursuant to Court’s power under s. 3 of the Criminal Appeals Act 1968 (“the 1968 Act”). The Court declined to do so; in their judgment, this was not a case where a conviction for buggery could be substituted as “[r]ape of a woman by a man does not ‘ordinarily involve’ an allegation of buggery by a man of another man” ([29]). Thus, the power under s. 3 of the 1968 could not be exercised, as substitution required that “the jury must have been satisfied of facts which proved him guilty of the other offence” (s. 3(1) 1968 Act). The Court also invited counsel to address them on the issue of whether, in those circumstances, a retrial should be ordered. However, the Court was precluded from making such an order by s. 7(2) of the Criminal Justice Act 1968, since the appellant would have to be charged for a different offence to that with which he was originally charged, and the appellant could not on the indictment for rape been convicted of buggery.

The appeal against sentence, in light of the Court’s conclusion on the appeal against conviction, was also allowed and the appellant’s prison term reduced to 18 years. A more substantive challenge to the sentence itself on the basis that the one imposed was manifestly excessive and the Sexual Harm Prevention Order (SHPO) imposed by the judge, however, was rejected; in the Court’s view, the appellant had engaged in a course of conduct against young men and, in light of that, the sentence originally imposed was justified. Further, the judge was entitled to include that a SHPO was necessary.

On 9 January 2015, the appellant pleaded guilty to one offence of exposure contrary to s. 66 of the Sexual Offences Act 2003. The magistrates made a conditional discharge order for three years. On 24 July 2017, having pleaded guilty to an offence of possession of a class A drug with intent to supply, the appellant was sentenced to three years’ imprisonment and re-sentenced to two months’ imprisonment for the offence of exposure, to be served concurrently with the sentence for the drugs offence. After that sentence, at a further hearing, the appellant was informed that, when he was resentenced in July, he should have been told that the notification requirements of Part 2 of the 2003 Act now applied. On 6 December 2017, a certificate was issued under s. 92 of the 2003 Act in respect of the s. 66 offence; it certified that the date of conviction was 9 January 2015 and the words “re-sentenced 24.07.17” were inserted. The appellant challenged the notification requirements, contending that they did not apply in cases where a person is re-sentenced to imprisonment for breach of a conditional discharge, sought to challenge the certificate, and the sentence of two months’ imprisonment as manifestly excessive.

Notification Requirements

The appellant was not subject to the notification requirements when he was sentenced in January 2015 to the conditional discharge; para. 33 of schedule 3 to the 2003 Act provides that the notification requirements apply in the case of an offender aged 18 or over if convicted of the s. 66 offence and either (a) the victim was under 18 (which was not the case here); or (b) if the offender was dealt with in a particular way, inter alia, if sentenced to a term of imprisonment (none of which applied here). The reporting requirements did, however, arise, when he was resentenced in July 2017; a conclusion which flowed from the terms of s. 132 of the 2003 Act, read with ss. 80 and 82.

Jurisdiction of the Court of Appeal (Criminal Division)

The Court confirmed that an appeal does not lie against the statutory application of the notification requirements as the notification requirements apply by operation of law. If the sentencing court does nothing more than inform the offender of any notification requirements, that is not a ruling capable of being appealed (R v Longworth [2006] 1 WLR 320, [20] and [32]).

The appeal against sentence

The offence was described as a ‘childish, stupid act’ ([33]). In the Court’s view, the offence did not cross the custody threshold and was manifestly excessive and as such was quashed. The practical consequence of the quashing of the sentence was that the appellant was relieved of the reporting requirements. There was no need to challenge the certificate as allowing the appeal did not result in the conclusion that the certificate was unlawfully issued.

The appellant, having been acquitted of murder, was convicted of manslaughter; his two co-accused were both convicted of murder. The victim was stabbed to death near his university halls. The appellant and the co-accused had gone looking for the victim and found him with a group with friends. When it came to blows between the groups, the appellant punched a member of the opposition group. He then returned to his car while the co-accused chased the victim, who was eventually fatally stabbed. Both co-accused then returned to the appellant’s car and drove away. The prosecution case was that the appellant acted as part of a joint-enterprise with his co-accused and that this was a planned attack carried out in a determined fashion, using violence that escalated. At trial, the appellant’s counsel invited the trial judge to direct the jury that they must be sure that he knew that a knife was being carried by a co-defendant in order to convict him of manslaughter, as use of a hidden knife would have been a supervening act absolving the appellant of all liability. The judge rejected this argument, acceding to the prosecution’s submission that, if a defendant takes part in a joint enterprise to do some harm to their victim and the victim dies as a result of the use of a weapon that the defendant was unaware of, he would nevertheless be guilty of manslaughter. The appellant appealed against conviction, arguing that there was evidence before the jury that one or both of the co-defendants had, unbeknownst to the appellant, carried a weapon to the scene and then used it aggressively; thus it was only fair that the jury had the opportunity of concluding that the use of a knife took the event beyond the scope of a joint venture absolving him of liability.

The appeal was dismissed. After an analysis of previous authority, the Court concluded that the state of the law after Jogee [2016] UKSC 8 was that the significance of knowledge of the weapon was reduced so that it impacts as evidence going to proof of intention, rather than being a pre-requisite liability for murder. On the facts which must have been found by the jury in this case, the appellant took the risk that the others involved in the joint-enterprise with him would go further than to inflict ‘some harm’. Consistent with the principles identified in the authorities and the modern approach to knowledge of a specific weapon, there was no reason to distinguish a case where the victim is kicked to death or killed with weapon either that is picked up off the ground or brought by the principal to the scene. Whether there was an evidential basis for an overwhelming supervening event “which is of such a character as could relegate into history matters which would otherwise be looked on as causative rather than mere escalation which remained part of the joint enterprise is very much a matter for the judge” ([41]). In this case, the concept of joint enterprise was explained in a way that did not attract any criticism.

The president of the Supreme Court has said the judiciary needs to be more diverse so that the public feel that those on the bench are genuinely “our judges” rather than “beings from another planet”.

The full piece can be read here.

According to a study by a justice thinktank, the sharp decline in the use of community sentences is owing to a breakdown of trust between judges, magistrates, and the probation service after privatisation. Since 2011 there has been a 24% fall in the number of non-custodial imposed in England and Wales whereas Scottish judges are shown to use them more frequently.

The full piece can be read here.

A report by Transform Justice has shown that hundreds of children arrested by police are being locked up before trial by “risk-averse” judges, who often see them as gang members. The research, the first of its kind in almost a decade, paints a picture that children are seen as “mini-adults”, with the result that many are remanded into custody with serious consequences.

The full piece can be read here.