Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

Welcome to the July edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 

 

The featured article focuses on a current appeal topic. In this edition we have two articles. Joel Bennathan QC comments on his recent successful appeal to the Privy Council in Darroch v AG of Isle of Man, dealing with time limits applicable to confiscation orders; Kirsty Brimelow QC analyses a recent case challenging the use of DNA in a sexual offence trial.

 

We also look at:

  • CACD conviction appeals dealing with victims of trafficking, bad character, jury irregularities, and alternative verdicts.
  • CACD sentencing appeals relating to Drug importation and dealing via “Dark Web”, wounding, manslaughter guidelines and hospital orders v s.45A orders.
  • NICA decision on a challenge to reporting restrictions;
  • Hong Kong appeals dealing with misconduct in public office and acts tending to pervert the course of justice.

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client. More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you. 

 

With best wishes,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


Welcome to the July edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 

 

The featured article focuses on a current appeal topic. In this edition we have two articles. Joel Bennathan QC comments on his recent successful appeal to the Privy Council in Darroch v AG of Isle of Man, dealing with time limits applicable to confiscation orders; Kirsty Brimelow QC analyses a recent case challenging the use of DNA in a sexual offence trial.

 

We also look at:

  • CACD conviction appeals dealing with victims of trafficking, bad character, jury irregularities, and alternative verdicts.
  • CACD sentencing appeals relating to Drug importation and dealing via “Dark Web”, wounding, manslaughter guidelines and hospital orders v s.45A orders.
  • NICA decision on a challenge to reporting restrictions;
  • Hong Kong appeals dealing with misconduct in public office and acts tending to pervert the course of justice.

 

 

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client. More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you.

 

With best wishes,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
Challenging the use of DNA in sexual offences
R v S [2019] EWCA 390 (Crim)
 
Kirsty Brimelow QC
Kirsty Brimelow QC

Kirsty Brimelow QC analyses a recent case challenging the use of DNA in a sexual offence trial.


By Kirsty Brimelow QC

 

R v S

 

[2019] EWCA 390 (Crim)

 

Challenging the use of DNA in sexual offences

 

 

The Appellant (78 years old) was convicted of:

  1. 5 counts of sexual intercourse with a girl under 13 (s.5 Sexual Offences Act 1956). The complainants were the 7 year old daughter of his girlfriend [W] and his 6 – 8 year old daughter [Z]
  2. Indecent assault (s.14(1) Sexual Offences Act 1956 against Z);
  3. Rape of another daughter when she was 14 [V] (s.1(1) Sexual Offences Act 1956).

All offences were historic and occurred between 22 and 37 years previously.

 

He was sentenced to a total of 21 years’ imprisonment comprising a custodial element of 20 years and an extended licence of one year.

 

Bad character evidence was admitted which related to a prosecution of the appellant in 1994 sexually assaulting the 9 year old daughter of a girlfriend (U) in August 1983. The prosecution had offered no evidence in court and a not guilty verdict had been entered. At the time of this trial, a significant witness – the mother of U had died. The Judge allowed her statements in 1993 and 1994 to be read.

 

Z went to the police in 2015. The police subsequently traced W and U who also made complaints. However, V did not make a statement or give evidence. The prosecution indicated that it did not rely upon her as a witness of truth. The prosecution relied upon DNA evidence, obtained in 2007 by police by seizing toothbrushes of V’s child (C 1) which showed C1 to be the appellant’s daughter.

 

V had given birth to the C1 when she was 15 years’ old and she and Z had been taken into care.  V’s account when she was interviewed by police in 2007 was that she had inseminated herself with sperm of her father which she had collected from a condom in the family home. She said that she did this to get pregnant so that she would get her own accommodation. She refused to cooperate with a prosecution in 2007 and criminal investigation ceased.

 

The DNA was kept against V’s wishes. She specifically requested that it be destroyed. The prosecution’s case relied entirely on the inference that a 14 year old would not willingly have sex with her father and so the only inference that the jury could reasonably draw was that he had raped her.

 

The defence submitted that it was not a safe inference and that there was an equally compelling inference supporting an offence of incest. In addition, it was argued that the Crown could not rely on either inference when the last account from V was that she had self-inseminated and no offence had been committed against her.

 

Leave was granted to appeal conviction on all grounds – which were all related to legal rulings of the trial judge. It was submitted that there was an abuse of process and breach of Article 6 (1) ECHR due to delay concerning all complainants, abuse of process in the use of unlawfully retained DNA (it was admitted to be unlawfully retained by the Crown), breach of section 63T of PACE 1983, breach of Article 8 concerning the retention of the DNA of a non-suspect and wrongful refusal to exclude the DNA pursuant to section 78 PACE and wrongful admission of both bad character evidence pursuant to 101(1) (d) CJA 2003 and hearsay evidence, pursuant to section 116(1) (a) CJA 2003.

 

The Court of Appeal dismissed all grounds. The application that there were questions of public importance to be considered by the UKSC, the substance of which is referred to in the commentary below was refused by the Court of Appeal and pronounced in Court on the 18th of June 2019. The identified questions of public importance were:

 

1.    Where a DNA profile is unlawfully retained from non-suspect A in order to investigate suspect B, is a Judge prohibited from allowing the profile to be used as evidence against suspect B in subsequent criminal proceedings? Does section 63T of PACE 1984 (as amended/inserted by the Protection of Freedoms Act 2012) apply equally to non-defendants?

 

2.    Where police obtain a DNA profile from a child in the course of a criminal investigation is it in violation of Article 8 ECHR and the Convention on the Rights of a Child to retain the DNA without written consent from the person or institution with parental responsibility?

 

3.    In cases involving potential child victims of rape and sexual assault or incest who are aged from 13 years’ old, is lack of consent so central to the offence of rape (and sexual assault) that it cannot be proved by DNA and the age of the alleged victim being under 16 without evidence of lack of consent from the alleged victim?

 

Commentary

 

The style of this judgment was dismissal of arguments rather than engaging with the reasoning. Undoubtedly, the Court of Appeal were not sympathetic to the underlying allegations. However, the Court of Appeal did not address the elements of rape and how it was safe inference for a jury to convict of the offence of rape without evidence from a complainant; why the offence of rape was proven over – at its highest- incest. It did not address how the prosecution could proceed advocating the inference when it had material that the latest account from the NS had been that she had self-inseminated.

 

Concerning the DNA, the prosecution and Court of Appeal relied heavily upon the House of Lords authority Attorney General Reference (No. 3 of 1999) [2001] 2 AC 91 [3]. But the AG’s Reference focused upon DNA from a suspect and its use in investigation, not as the basis of evidence in a trial. In that case a new sample formed the basis of the evidence in the trial – not the illegally retained DNA.

 

It did not address section 63 of PACE 1984 (as amended / inserted by the Protection of Freedoms Act 2012) and in particular section 63T which states that any material to which 63D and 63R pertains must not be used in evidence against the person to whom the material relates or for the purposes of the investigation of any offence.

 

No consideration was given to the Court of Appeal as to whether the same mandatory criteria apply to the evidential use of an unlawfully retained DNA profile from a non-defendant against a defendant in trial proceedings.

 

In addition, the Court of Appeal did not properly consider the importance of DNA samples having been taken when the person was a child and then used as evidence in criminal proceedings against another when the person was an adult (and withheld consent). The Supreme Court increasingly highlights the privacy of a child or young person as an important interest, protected under Article 16 of the UN Convention on the Rights of the Child and Article 8 of the European Convention on Human Rights. The Christian Institute and Others v The Lord Advocate [2016] UKSC 51, 28 July 201 is the last Supreme Court case considering similar issues. It concerns data sharing rather than use of unlawfully retained DNA in criminal proceedings. The Court of Appeal considered only that NS’s child was now an adult and knew the identity of her father and concluded that the human rights law arguments fell away.

 

Finally, the Court of Appeal did not fully grasp the importance to examine the obligations upon local authorities with parental responsibility or persons with parental responsibility when granting permission for police retention of a child’s DNA. It did not apply the law governing the giving of consent pre and post the Protection of Freedoms Act 2012. It misunderstood the comparison that the appellant made to Family Court proceedings, namely that sections 20 and 21 of the Family Law Reform Act 1969 apply and consent is required or a direction of the court is necessary to obtain material for paternity testing.

 

 

If you would like to discuss this case with Kirsty Brimelow QC, please email here.

 

When is a time limit not a time limit?
Darroch v AG of Isle of Man [2019] UKPC 31
 
Joel Bennathan QC
Joel Bennathan QC

Joel Bennathan QC comments on his recent successful appeal to the Privy Council in Darroch v AG of Isle of Man, dealing with time limits applicable to confiscation orders.


By Joel Bennathan QC

 

When is a time limit not a time limit?

 

Darroch v AG of Isle of Man [2019] UKPC 31

 

In Darroch v AG of Isle of Man [2019] UKPC 31 the Privy Council have affirmed the need to abide by statutory time limits. The decision is a welcome response to the “anything goes” attitude that seems to have infected numerous prosecuting authorities after the House of Lords decision in Soneji.

 

Mr Darroch was convicted of various counts of fraud. The judge later set a confiscation time table and passed sentence. There was then an exchange between the prosecuting advocate and judge in which the former said he would not be seeking costs. Some weeks later the prosecution notified the court they had changed their mind. Many months later the judge passed a large confiscation order then adjourned for a later hearing about costs. Yet more months on he imposed a costs order of £175 000. In an appeal on the Isle of Man the local appeal court overturned that order, relying on the prosecution’s earlier stance. The Manx Attorney General then appealed to the Privy Council.

 

In argument at the Privy Council Mr Darroch’s advocates raised a new issue; the Manx legislation, like POCA, sets a time limit to avoid an overly long delay between making a confiscation order and a later order that the convicted person should also pay costs. In Constantine [2011] I WLR 1086 the [English]Court of Appeal found the POCA equivalent time limit to be one whose breach would not render the costs order unlawful; in this case the Attorney General sought to rely on Constantine and the House of Lord’s decision in Soneji [2006] 1 AC 340, to the effect that the breach of a confiscation time limit would not render the subsequent order null and void. The Privy Council has now held that Constantine was wrongly decided and the violation of a time limit before a costs order is fatal.

 

The wider implications would seem to be that in any case apart from a confiscation under POCA or equivalent legislation, missing a deadline may now be held as depriving the Court of the power to make any order at all. 

 

 

 

If you would like to speak to Joel Bennathan QC about this case, please email here.

 

Victim of trafficking
R v N [2019] EWCA Crim 984
 
Ben Newton
Ben Newton

Ben Newton looks at the latest CACD conviction appeal dealing with victims of trafficking.


By Ben Newton

 

Victim of trafficking

 

R v N

 

[2019] EWCA Crim 984

 

 

R v N [2019] EWCA Crim 984 is the latest decision of the Court of Appeal in relation to a victim of trafficking who was allowed to plead guilty in circumstances where their status ought to have extinguished their culpability for the offence.

 

Prior to the coming into force of the Modern Slavery Act 2015, and in particular the s45 statutory defence for victims of trafficking, the remedy in such circumstances was an application to stay proceedings as an abuse of process. A summary of those principles can be found in R v GS [2018] 4 WLR 167. Cases are now beginning to filter through, however, where the new statutory defence was available to the appellant, allowing the Court to consider the facts in that context.

 

The Appellant in R v N was the ‘gardener’ in a cannabis factory being run at a residential address in Birmingham. His instructions gave a clear indication that he was a victim of trafficking but he was not advised of the defence available to him and pleaded guilty, those instructions being relayed to the Court during the plea of mitigation.

 

‘In our judgment, the information placed before the court was sufficient to raise an issue that the applicant was a possible credible victim of trafficking. This should have been apparent to the applicant's advocate, the representative of the prosecution, and the judge. It would have been open to the judge to raise this issue. He did not do so. However, the Guidance provided by the CPS expressly provides for this situation. Had the Guidance been followed, as we believe it should have been, the prosecutor should have sought an adjournment to ensure that the steps set out in the relevant section of the Guidance, namely, the duty to make proper enquiries and to refer through the NRM, should have taken place. Had this been done, we believe it reasonable to conclude that the referral would have resulted in the Conclusive Grounds Decision (made in January 2017), namely, that the applicant is a victim of human slavery. Our view as to the Conclusive Decision is reinforced by the findings of the FTT which were made available to the court.’ (Para 40).

 

In Responding to the appeal the CPS accepted that three of the four elements of the defence were made out, specifically: a) the appellant was over 18, b) he did the act because he was compelled to do so, and c) the compulsion was attributable to slavery or to relevant exploitation. They did not accept, however, that d) a reasonable person in the same situation and having his relevant characteristics would have no realistic alternative to doing the act. This was based on a number of observations as to his circumstances (set out at para 32), placing particular reliance on the fact that he had previously escaped and claimed asylum in Germany before being re-trafficked, and so could have been expected to turn to the authorities again.

 

The Court rejected this analysis, holding (at para 43): ‘The factual position, as found by the Conclusive Decision, was that for the short time that he was in Birmingham, the applicant had no travel documents; he had a history of being beaten by traffickers following his earlier escape in another country; he was in a new country; and he had no contact with any persons other than those involved with the traffickers. We regard the respondent's submission that in those circumstances section 45(1)(d) is not met as failing to appreciate the reality of the applicant's situation, and his circumstances, which include his history at the hands of the traffickers in other countries and resultant fears.’

 

The appeal was consequently allowed on the basis that the case should have been adjourned for referral to the NRM, following which a fair decision based on the facts and evidence would have been that a defence pursuant to s45 would probably succeed.

 

 

If you would like to speak to Ben Newton about this case, please email here.

Appeals against Sentence; England and Wales
 
Farrhat Arshad
Farrhat Arshad

Farrhat Arshad looks at the latest CACD sentencing appeals relating to Drug importation and dealing via “Dark Web”, wounding, manslaughter guidelines and hospital orders v s.45A orders.


By Farrhat Arshad

 

 

Drug importation and dealing via “Dark Web”- applicability of Guideline to online offences - youth of offenders

 

R v Assaf, Roden, Hyams and Patel

 

[2019] EWCA Crim 1057

 

The CACD dealt with four appellants all of whom had been involved in a conspiracy to import and deal drugs of Classes A and C whilst students at Manchester University.  Much of the importation and selling of the drugs had been on the Silk Road website via the “dark web”, which the offenders had accessed using software and payment had been made in Bitcoin.  The appellants had all pleaded guilty to the offences after preliminary challenges to the admissibility of evidence had failed.  The appellants were all teenagers when the conspiracy started and still young men in their early 20s when convicted and sentenced. 

 

On appeal it was argued that the sentencing judge had given insufficient regard to their youth.  Whilst the CACD stated that it had no hesitation in endorsing the observations in R v Clarke and others [2018] EWCA Crim 185, that the youth and maturity of an offender would be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday, it found on the particular facts that a proper reduction had been made for this factor.  The CACD also observed that, “the force of the proposition is greater in cases where the criminality involves relatively short-lived episodes even if the episodes are repeated. Here the appellants engaged in well-planned and sophisticated conspiracies which involved a course of conduct over many months. Their behaviour did not suggest youthful immaturity; rather the reverse. It is also of significance that these appellants were well-educated young men from stable backgrounds.”

 

The appellants also argued that the fact that the majority of the offending had taken place online was significant for two reasons: (i) that there was less transactional violence if drugs were sold online and posted out and (ii) the Guidelines were not devised with online selling in mind and application thereof to online dealing was likely to result in unfairness and disproportionate sentences.  These arguments were based on the expert report of a professor of criminology which was before the trial judge and the CACD.  The CACD rejected both of these arguments, stating in regard to the first that the Guideline at Step One was concerned only with the culpability of the offender and the indicative quantity of the drugs involved. Factors which reflect transactional violence were aggravating factors to be considered at Step Two. In relation to the second argument, the Definitive Guideline was not concerned with how an offender might be proved to have dealt with a particular quantity but set guidelines depending on what could be proved.  The overall sentences in respect of three of the appellants were reduced on the particular facts of their individual cases.

 

 

 

Applicability of Wounding with intent to cause grievous bodily harm Guideline to offence of wounding with intent to resist arrest -Totality

 

R v Allard

 

[2019] EWCA Crim 1075

 

In sentencing the appellant for an offence of Wounding with intent to resist arrest (amongst other offences), where the appellant had driven a car at a police officer, the sentencing judge had placed the offence in Category 1 of the Definitive Guideline for wounding with intent to cause grievous bodily harm.

 

The CACD held that whilst the Guideline for offences of Wounding with intent to do grievous bodily harm did not strictly apply to the offence of wounding with intent to resist arrest, it was obviously appropriate for the judge to consider it.  However, Category 1 of the Guideline was reserved for those cases where there was greater harm.  The greater harm factor of "injury which is serious in the context of the offence" related to injury which had in fact been caused, as opposed to injury which was intended or likely to be caused. An intention to commit more serious harm than actually resulted from the offence was relevant to culpability.  The injuries to the police officer, which consisted of a dent to the head, sore neck and muscle stiffness, could not be said to be serious injury in the context of the offence of Wounding with intent to cause grievous bodily harm despite the ongoing psychological effect on the victim as described in the victim impact statement.  As such the offence should have been at the top of category 2 rather than in category 1. However, the five aggravating features entitled the judge to move above the Category 2 sentence range.  The overall sentence however would be reduced for reasons of totality.

 

 

 

Manslaughter – diminished responsibility – sentencing guidelines – hospital order v imprisonment – s.45A MHA

 

R v Fisher

 

[2019] EWCA Crim 1066

 

This is an important case on the application of the Sentencing Council's Definitive Guideline for Manslaughter in cases where the defendant is suffering from a mental disorder. The CACD addressed the issues of culpability, dangerousness and the appropriate disposal – imprisonment, hospital order, or s.45A “hybrid order.”

 

 

If you would like to speak to Farrhat Arshad about these cases, please email here.

 

Hong Kong Case Summary
 
Richard Thomas
Richard Thomas

Richard Thomas looks at Hong Kong appeals dealing with misconduct in public office and acts tending to pervert the course of justice.


By Richard Thomas

 

Court of Final Appeal

 

Misconduct in public office - wilful misconduct and seriousness

 

HKSAR v Tsang Yam-kuen, Donald

 

[2019] HKCFA 24 FACC No. 29 of 2018 on appeal from CACC No. 55 of 2017

 

The Appellant was Chief Executive and President of the Executive Council. He was charged with one offence of bribery and two offences of misconduct in public office. The allegation related to licences for sound broadcasting issued following a government tender. Four applications were made and all of the applications were ultimately approved by the Appellant as Chief Executive in Council. There was no evidence of any irregularity in the applications or the administrative process by which they were handled.

 

The Appellant was, at the same time, arranging to live in a Shenzhen apartment owned by a company controlled by one of the companies issued with a licence.  He was to pay a rent but there were to be very extensive refurbishments. The Appellant had made declarations of interest on many occasions during his term of office and was obviously aware of the importance of declaring interests when necessary. He made no declaration of interest to the ExCo regarding the property.

In February 2012, the media raised concerns about the Appellant’s integrity in respect of his associations with prominent business people. On 26 February 2012, the Appellant then accepted in a radio interview that he was renting the property. He explained in the interview that it did not occur to him a declaration of interest regarding the property to the ExCo was required, and that such a requirement was “pretty farfetched”. The Independent Commission Against Corruption commenced an investigation.

The Appellant was tried in the Court of First Instance before a judge and jury on three counts. The first count was accepting an advantage as Chief Executive contrary to s.4(2B)(a) and s.12 of the Prevention of Bribery Ordinance (Cap. 201), the allegation being the refurbishment of the property was a bribe for the Appellant’s handling of the applications. The second and third counts were two counts of misconduct in public office, contrary to common law and punishable under s.101I(1) of the Criminal Procedure Ordinance (Cap.221) which reflected the deliberate concealment of the Appellant’s dealings with the company, with an alternative case of failing to declare or disclose, or concealing the dealings.

 

The jury (and a subsequent jury) was unable to reach a verdict in respect of Count 1 but the Appellant was convicted on Count 2 (and acquitted on Count 3). He was sentenced to a term of imprisonment. 

 

The appeal therefore related only to Count 2, but the Court of Appeal regarded the jury’s guilty verdict on Count 2 as evidence of a rejection of the Appellant’s explanation for his non-disclosure to the ExCo and his appeal was dismissed.

 

On appeal to the CFA, the appeal required a consideration of the way the prosecution had been advanced: The primary prosecution case was that the Appellant’s dealings with the company were corrupt, and that they were deliberately concealed in order to hide that corruption. If that case had been accepted, there would have been a conviction on Count 1 (and, inevitably, Count 2). The jury was however unable to reach a verdict on this primary case. The alternative prosecution case on Count 2 proceeded on the basis that the dealings between the Appellant and the company were not proven to be corrupt but nonetheless there was a non-disclosure of the relationship. Under this alternative case, issues regarding wilfulness and seriousness of the non-disclosure were central to the offence of misconduct in public office. The key issue in this appeal was therefore whether the jury was safely directed on how to approach the elements of wilful misconduct and seriousness.

 

The trial judge directed the jury that “wilfully” in this context meant “deliberately”, rather than by accident and inadvertence or oversight. As to seriousness, the trial judge said that it had to be “serious, not trivial”, and that the jury should assess this by considering the responsibilities of the Appellant and the office, and the extent to which he departed from these responsibilities.

 

The CFA concluded:

  1. The trial judge’s direction on the issue of wilfulness was inadequate. A decision-maker’s failure to disclose an interest in the subject matter of the decision might be deliberate in the sense that he considered disclosure and decided against it, but not wilful because he did not know or believe there was an obligation to disclose in the circumstances of the case and did not disregard the risk of there being such an obligation. A conscious but erroneous decision not to disclose was not the same as a wilful failure to disclose, or concealment. On the alternative ‘non-corrupt case’ on which he was convicted, there was a disputed issue that was not explained to the jury in the judge’s direction on wilfulness. The jury’s guilty verdict on Count 2 could not simply be regarded as a total rejection of the Appellant’s explanation such that the judge’s inadequate direction on wilfulness could be treated as immaterial. 
  2. The trial judge’s direction on the issue of seriousness was also inadequate. If the primary prosecution case of corruption was accepted by the jury, corruption as the motive for concealment would have been established and the element of seriousness would have required little elaboration. In the present case, since corruption had not been established, an evaluation of the nature and extent of the Appellant’s departure from his responsibilities and the seriousness of possible consequences required consideration of the motives behind his omission, what he was required to disclose, and the consequences of non-disclosure, none of which were properly analysed.

The appeal was therefore allowed and the Appellant’s conviction and sentence (which he had served) was quashed and no new trial ordered.

 

 

 

Perverting the course of justice – meaning of “tendency”

 

HKSAR v Lew Mon Hung

 

[2019] HKCFA 22 FACC No. 24 of 2018 on appeal from CACC No. 66 of 2016

 

The common law offence of attempting to pervert the course of justice requires that the accused’s act has to have a tendency to pervert the course of justice. This case arose from an investigation by the Independent Commission Against Corruption against the Appellant.

 

The Appellant was arrested and interviewed by the ICAC on suspicion for having conspired with others to commit an offence contrary to the Prevention of Bribery Ordinance (Cap 201). He was released on bail after the arrest and interview.

 

On the Appellant’s instruction, his personal secretary prepared and sent emails addressed to the Chief Executive of the HKSAR and the Commissioner of the ICAC. The Appellant protested his innocence in the email and requested the Chief Executive and the Commissioner to stop the investigation, describing it as “groundless” and “political persecution”. The Appellant claimed that if the investigation was not terminated, “a political bomb would be detonated”.

 

A few days later, again on the Appellant’s instruction, his personal secretary prepared and delivered a letter addressed to the Chief Executive and copied it to the Commissioner. It directly accused the Chief Executive of instigating the Investigation and claimed that, if it was not stopped immediately, the Appellant would announce the call for the Chief Executive’s resignation to the media and the Central People’s Government using “shocking insider information”. The letter requested the Chief Executive to instruct the ICAC to stop the investigation.

 

The Appellant was tried and acquitted on conspiracy charges arising from the investigation. He was subsequently tried on January 2016 in the District Court for doing acts tending and intended to pervert the course of public justice, contrary to common law. The Appellant was accused of seeking to rely on his past dealings and association with the Chief Executive, by threat or by intimidation, to influence the Chief Executive and/or the Commissioner to terminate the Investigation. He was convicted in the District Court and sentenced to 18 months’ imprisonment. The Court of Appeal upheld the conviction.

 

The first – and key - issue was whether, in order to prove that the Appellant’s acts had a tendency to pervert the course of justice, it was necessary for the prosecution to establish that the Chief Executive or the Commissioner could lawfully exercise a legal power that he possessed to stop or interfere with the criminal investigation.

 

The Court held that for an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. This included acts that have a tendency and are intended to frustrate or deflect the course of imminent, probable or possible curial or tribunal proceedings. The offence may be found on acts of interference in relation to curial proceedings which may result from an investigation. This is a question of fact in every case and the Court found that the Appellant’s suggestion that in order for the approaches to them to have a tendency to pervert the course of justice, the Chief Executive and the Commissioner must have the legal power to stop the investigation was unrealistic on the facts of the case as the Chief Executive was undoubtedly in a position to influence or otherwise affect the Commissioner’s handling of the investigation, if not to stop it altogether. The Commissioner, was similarly in a position to disrupt the investigation.

 

The answer to the question posed was therefore “no”. In the light of the Court finding against the Appellant on this point, the other questions did not need to be considered. The appeal was dismissed.

 

 

If you would like to speak to Richard Thomas about these case, please email here.

Appeals against Conviction; England and Wales
 
Paul Taylor QC
Paul Taylor QC

Paul Taylor QC looks at the latest CACD conviction appeals dealing with bad character, jury irregularities, and alternative verdicts.


By Paul Taylor QC

 

Bad character evidence

 

R v Dean Hackett

 

[2019] EWCA Crim 983

 

DH was convicted of a single count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He appealed against conviction. The grounds related to bad character evidence.

The CACD quashed the conviction.

  1. It agreed that the basis upon which the bad character evidence was admitted was unclear from the judge's ruling.
  2. “In our judgment none of this evidence should have been admitted pursuant to the gateways of section 101 of the CJA 2003 as it was irrelevant, prejudicial and such probative value as it contained was significantly outweighed by its prejudicial nature.”
  3. “…if some background evidence was to have been adduced by agreement between the Crown and the defence, there should have been identification of the limits of such evidence, which then could have been the subject of judicial management.”
  4. “…if a judge is minded to permit evidence to be adduced as to background evidence it is incumbent upon the judge when ruling upon admissibility, to identify the reasons for its admission, the parameters of such evidence, how it can be used, in particular what can be said by any witness as to that evidence, whether it be in examination-in-chief or the extent of any cross-examination, and in that ruling to give an indication of how the jury will subsequently be directed upon that evidence.”
  5. There were deficiencies in the directions on the bad character in the summing up:
  1. The judge failed to direct the jury that they had to be sure of any particular aspect of the bad character evidence before they could consider placing reliance upon it;
  2. The judge did not identify for what particular purpose [this] evidence might be used by them, even if they were sure that the contested event or events occurred as JH recounted;
  3. The judge did not point out to the jury that, even if they were sure of one or more of the contentious background matters, on their own they proved nothing – that at the best the evidence was but a small part of the case and the jury's consideration should be principally focused on the events of the index offence.
  1. “In this case bad character evidence was wrongly admitted from the outset. The wrongful admission was then compounded by an absence of appropriate judicial management and inadequate legal directions.”
  2. “…individually and cumulatively the manner in which the bad character evidence was admitted, handled in cross-examination and left to the jury did give rise to substantial prejudice to the appellant such as to render the appellant's conviction unsafe.”

 

Commentary:

 

Trial counsel agreeing written directions: This is a good example of the CACD concluding that the written directions were flawed despite the fact that “counsel would have been shown the written directions of the judge, which were replicated in his oral summing-up, and each had the opportunity to comment upon those directions.” [See also Coutts [2006] 1 WLR 2164 at para 23: cf. Hunter [2015] 2 Cr.App.R. 9 (in relation to character directions) where the CACD observed that: “We should also add that if defence advocates do not take a point on the character directions at trial and or if they agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. The trial was considered fair by those who were present and understood the dynamic” [at 98]

 

Retrial? At the end of the judgement transcript there is an informative discussion regarding the application for a retrial and some of the factors that the CACD will take into account when deciding whether it is in the interests of justice to order a retrial.

 

 

 

 

Jury separating during retirement – pre booked holidays – factors that indicate unfair trial

 

R v Woodward, Spencer, Lamzini and Stoute

 

[2019] EWCA Crim 1002

 

The CACD considered the impact of jury separations during deliberations.

  1. There can be no general rule which determines that a particular length of time that a jury have been dispersed in the course of its deliberations necessarily renders a trial unfair or otherwise calls into question the safety of a conviction. The issue involves a fact sensitive analysis [77]
  2. The following matters may be material:
  1. The quality of the summing-up. If there are deficiencies in the summing-up, then this may be material. Conversely, while there is a risk that the length of dispersal will deprive the jury of a fair opportunity to assess the evidence, that risk will be reduced by a careful and meticulous summing-up;
  2. It may be necessary to consider the extent and quality of the material that the jury has available on retirement, and the extent to which this will enable them to focus on the issues and the evidence in relation to those issues. [In this case in addition to the written directions and the routes to verdicts, the jury had a considerable amount of written and photographic material.]
  3. The gap in the jury’s consideration between the summing up and the final verdicts will be relevant to the fairness of the process. The longer the period, the greater the risk that the jury will be unable to remember the evidence summarised in the summing up and the points made by the prosecution and defence.
  4. It may be relevant that an application was made to discharge the jury on the basis of the time in retirement at the time.
  5. The existence of indications which tend to establish that, by reason of the length of the trial and the retirement, the jury were unable to discharge their functions.
  6. The verdicts themselves will be relevant. Do they suggest, for example, that the jury were assessing the evidence in relation to each defendant or were unable to do so?.

 

 

 

s.18 OAPA – alternative offences (s.20)

 

R v M

 

[2019] EWCA Crim 1094

 

M was convicted of s.18 OAPA. The CACD considered whether the trial judge erred in failing to leave an alternative of s.20 wounding.

 

 

 

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Northern Ireland Case Summary

Paul Taylor QC notes a recent NICA decision on a challenge to reporting restrictions.


By Paul Taylor QC

 

The Queen v HNC (Media restrictions)

 

24th June 2019 [Based on summary]

 

The Court of Appeal refused a number of media organisations leave to appeal to challenge a restriction on contemporaneous reporting of the fact finding trial of a person found unfit to be tried.

An order under section 4(2) of the Contempt of Court Act 1981 was made to prohibit reporting of a fact finding trial until its completion or further order of the court.

This order was challenged by a number of media organisations who sought to have the restriction discharged so they could report the fact finding trial contemporaneously.

The Court of Appeal refused leave to appeal.

 

 

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