Doughty Street Appeals - Criminal Appeals Bulletin from Doughty Street Chambers - Issue 40 http://doughty-street-chambers.newsweaver.com/Appeals/ en-us 11 Mar 2020 01:16:40 GMT 11 Mar 2020 01:16:40 GMT http://doughty-street-chambers.newsweaver.com/Appeals/rss.xml Newsweaver crimeteam@doughtystreet.co.uk (Doughty Street Chambers) support@newsweaver.ie (Newsweaver) 60 true Welcome http://doughty-street-chambers.newsweaver.com/Appeals/raeumdttviv?rss=true Welcome to the March 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 (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, Paul Mason [ http://doughty-street-chambers.newsweaver.com/Appeals/qqs5gizs95s/external ] looks at media reporting in the Court of Appeal (Criminal Division). Also in this edition we look at: CACD conviction appeals arising from a witness who refuses to continue mid-way through cross-examination; fresh evidence and diminished responsibility; non-defendant’s bad character; hearsay evidence CACD sentence appeal considering the meaning of “particularly vulnerable” in the Sexual offences Guidelines NICA DPP’s Reference on firearms and drugs offences; CCJ appeal based on identification evidence. James Wood QC [ http://doughty-street-chambers.newsweaver.com/Appeals/13d6x2grbpb/external ] discusses the role of deterrence in the fixing of minimum terms in mandatory life sentences for murder in the case of juveniles and adults, and considers the discrete defence of using reasonable force in protection of property in the context of the recent appeal case of Williams. 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 [ r.vile@doughtystreet.co.uk ] [ r.vile@doughtystreet.co.uk ] 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 [ http://doughty-street-chambers.newsweaver.com/Appeals/12bk19x51iv/external ] [ http://doughty-street-chambers.newsweaver.com/Appeals/12bk19x51iv/external ] [ http://doughty-street-chambers.newsweaver.com/Appeals/12bk19x51iv/external ]. We hope that the bulletin is of interest to you. With best wishes, Paul Taylor QC [ http://doughty-street-chambers.newsweaver.com/Appeals/pnoy6o75aav/external ] Head of the DSC Criminal Appeals Unit 11 Jul 2017 12:00:00 IST 1527a3e4bb599c9a53c57d79d089dbc5 Feature Article <p style="text-align: justify;"><span style="color: #ffffff;">Welcome to the March edition of our monthly Criminal Appeals Bulletin.</span></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="color: #ffffff;">The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean (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. </span></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="color: #ffffff;">The featured article focuses on a current appeal topic. In this edition,</span> <a href="http://doughty-street-chambers.newsweaver.com/Appeals/qqs5gizs95s/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Paul Mason</span></a> <span style="color: #ffffff;">looks at media reporting in the Court of Appeal (Criminal Division).</span></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="color: #ffffff;">Also in this edition we look at:</span></p> <ul style="text-align: justify;"> <li><span style="color: #ffffff;">CACD conviction appeals arising from a witness who refuses to continue mid-way through cross-examination; fresh evidence and diminished responsibility; non-defendant’s bad character; hearsay evidence</span></li> <li><span style="color: #ffffff;">CACD sentence appeal considering the meaning of “particularly vulnerable” in the Sexual offences Guidelines</span></li> <li><span style="color: #ffffff;">NICA DPP’s Reference on firearms and drugs offences;</span></li> <li><span style="color: #ffffff;">CCJ appeal based on identification evidence.</span></li> </ul> <p style="text-align: justify;"><a href="http://doughty-street-chambers.newsweaver.com/Appeals/13d6x2grbpb/external" target="_blank" rel="noopener"><span style="color: #ff6600;">James Wood </span><span style="color: #ff6600;">QC</span></a> <span style="color: #ffffff;">discusses the role of deterrence in the fixing of minimum terms in mandatory life sentences for murder in the case of juveniles and adults, and considers the discrete defence of using reasonable force in protection of property in the context of the recent appeal case of Williams.</span></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="color: #ffffff;">Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - </span><em style="color: #ffffff;">The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals)</em><span style="color: #ffffff;">.</span></p> <div class="SCXW152370278"> <div class="OutlineElement Ltr SCXW152370278" style="direction: ltr;"> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"> </p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="color: #ffffff;"><span style="text-align: justify;">Please feel free </span><a style="text-align: justify; color: #ffffff;" href="mailto:r.vile@doughtystreet.co.uk"><em>to e-mail us </em></a><span style="text-align: justify;">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 </span><a style="text-align: justify; color: #ffffff;" title="found on our website" href="http://doughty-street-chambers.newsweaver.com/Appeals/12bk19x51iv/external" target="_blank" rel="noopener"><strong><em>found on our website</em></strong></a><span style="text-align: justify;">.</span></span></p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"> </p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="text-align: justify; color: #ffffff;">We hope that the bulletin is of interest to you. </span></p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"> </p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="text-align: justify; color: #ffffff;">With best wishes,</span></p> </div> </div> <p style="text-align: justify;"><span style="color: #ff6600; font-family: Arial, Helvetica, sans-serif;"> </span></p> <p style="text-align: justify;"><span style="color: #ff6600; font-family: Arial, Helvetica, sans-serif;"><em><strong><a style="color: #ff6600;" title="Paul Taylor" href="http://doughty-street-chambers.newsweaver.com/Appeals/pnoy6o75aav/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Paul Taylor QC<br /><br /></span></a></strong></em></span></p> <p style="text-align: justify;"><span style="color: #c0c0c0; font-family: Arial, Helvetica, sans-serif;">Head of the DSC Criminal Appeals Unit</span></p> <p style="text-align: justify;">Welcome to the March edition of our monthly Criminal Appeals Bulletin.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean (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. </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The featured article focuses on a current appeal topic. In this edition, <a href="http://doughty-street-chambers.newsweaver.com/Appeals/qqs5gizs95s/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Paul Mason</span></a> looks at media reporting in the Court of Appeal (Criminal Division).</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Also in this edition we look at:</p> <ul style="text-align: justify;"> <li>CACD conviction appeals arising from a witness who refuses to continue mid-way through cross-examination; fresh evidence and diminished responsibility; non-defendant’s bad character; hearsay evidence</li> <li>CACD sentence appeal considering the meaning of “particularly vulnerable” in the Sexual offences Guidelines</li> <li>NICA DPP’s Reference on firearms and drugs offences;</li> <li>CCJ appeal based on identification evidence.</li> </ul> <p style="text-align: justify;"><a href="http://doughty-street-chambers.newsweaver.com/Appeals/13d6x2grbpb/external" target="_blank" rel="noopener"><span style="color: #ff6600;">James Wood </span><span style="color: #ff6600;">QC</span></a> discusses the role of deterrence in the fixing of minimum terms in mandatory life sentences for murder in the case of juveniles and adults, and considers the discrete defence of using reasonable force in protection of property in the context of the recent appeal case of Williams.</p> <p> </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - <em>The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals)</em>.</p> <p style="text-align: justify;"> </p> <div class="SCXW152370278"> <div class="OutlineElement Ltr SCXW152370278" style="direction: ltr;"> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="color: #000000;"><span style="text-align: justify;">Please feel free </span><a style="text-align: justify; color: #000000;" href="mailto:r.vile@doughtystreet.co.uk"><em>to e-mail us </em></a><span style="text-align: justify;">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 </span><a style="text-align: justify; color: #000000;" title="found on our website" href="http://doughty-street-chambers.newsweaver.com/Appeals/12bk19x51iv/external" target="_blank" rel="noopener"><strong><em>found on our website</em></strong></a><span style="text-align: justify;">.</span></span></p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"> </p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="text-align: justify; color: #000000;">We hope that the bulletin is of interest to you.</span></p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"> </p> <p class="Paragraph SCXW152370278" style="color: windowtext; padding-right: 0px; padding-left: 0px; margin-right: 0px; margin-left: 0px; vertical-align: baseline; text-align: justify;"><span style="text-align: justify; color: #000000;">With best wishes,</span></p> </div> </div> <p style="text-align: justify;"><span style="color: #ff6600; font-family: Arial, Helvetica, sans-serif;"> </span></p> <p style="text-align: justify;"><span style="color: #ff6600; font-family: Arial, Helvetica, sans-serif;"><em><strong><a style="color: #ff6600;" title="Paul Taylor" href="http://doughty-street-chambers.newsweaver.com/Appeals/pnoy6o75aav/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Paul Taylor QC<br /><br /></span></a></strong></em></span></p> <p style="text-align: justify;"><span style="color: #c0c0c0; font-family: Arial, Helvetica, sans-serif;">Head of the DSC Criminal Appeals Unit</span></p> Paul Taylor QC Paul Taylor QC http://doughty-street-chambers.newsweaver.com/files/2/74771/158185/569778/e421a432ae2fa46c39c430d4/taylor_paul_headshot_small.jpg http://doughty-street-chambers.newsweaver.com/files/2/74771/158185/569778/e421a432ae2fa46c39c430d4/taylor_paul_headshot_small_2.jpg Long and Short Sentences: Media reporting in the Court of Appeal (Criminal Division) http://doughty-street-chambers.newsweaver.com/Appeals/s9w8zc9jikc?rss=true Paul Mason [ http://doughty-street-chambers.newsweaver.com/Appeals/1i46npsw8bv/external ] looks at media reporting in the Court of Appeal (Criminal Division). 10 Mar 2020 12:00:00 GMT acc779bd6ac2252fadea91ad4a0a7b32 Two column articles <p><span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1i46npsw8bv/external" target="_blank" rel="noopener">Paul Mason</a></span> looks at media reporting in the Court of Appeal (Criminal Division).</p> <p align="center"><strong>By Paul Mason</strong></p> <p align="left"> </p> <p style="text-align: justify;">It was announced back in January that the sentencing remarks of senior judges in Crown Courts could be filmed and broadcast.  The Crown Court (Recording and Broadcasting) Order 2020, limits such broadcasts to High Court Judges, Resident Judges and Senior Circuit Judges at the Central Criminal Court. No other court users, including victims, witnesses, jurors and court staff would appear on camera.  The legislation, yet to come into force follows a three-month pilot in which remarks were filmed but not broadcast in eight Crown Courts. </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Court of Appeal (Recording and Broadcasting) Order 2013, permitted the televising of criminal appeals for live broadcast.  This included a number of detailed safeguards including a 70-second delay to allow for redaction of any material which contravenes broadcasting regulations or reporting restrictions.  Further, Judges retain the power to prohibit filming or broadcasting if it is in the interests of justice or to prevent undue prejudice.  Like the new Crown Court Order, footage can be used in a news and current affairs context only, not other genres such as satire, entertainment or commercial use in advertising.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Both Orders provide an exception to s.41 of the Criminal Justice Act 1925 which prevents filming in courts; and s.9 of the Contempt of Court Act 1981 which prevents the use of tape recorders.  Part 16C  of the Criminal Practice Direction 2015 Amendment No 3 [2015] EWCA Crim 430 provides that a journalist or legal commentator who wishes to use live, text-based communications such as Twitter or email may do so without making an application to the court.  This is because it is presumed that they will be doing so for the purpose of preparing fair and accurate reports of the proceedings, which does not interfere with the proper administration of justice. A member of the public who wishes to do the same is required to make an application for permission, which may be done informally by communicating a request to the judge through court staff.  All users of electronic devices to make live, text-based communications must also comply with the reporting restrictions set out in ss. 1, 2 and 4 of the  Contempt of Court Act 1981.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">It would appear the tide is turning in favour of broadcasting criminal proceedings.  Something broadcasters have been pushing for over the last 20 or so years.  The reticence for broadcasting criminal appeals is perhaps obvious.  For every call for transparency, there is the sober warning of sensationalism, salaciousness and showboating.  The spectre of the OJ Simpson trial coverage back in 1994 still looms large.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Paul works with the DSC international media defence team on freedom of expression issues. He has published widely on the use of electronic broadcasting in courtrooms and was consulted by the, then Lord Chancellor’s Department on proposals for cameras in UK courts.</p> <p> </p> <p> </p> <p>If you would like to speak to <a href="http://doughty-street-chambers.newsweaver.com/Appeals/1i46npsw8bv/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Paul Mason</span></a> about this article, please email <a href="mailto:p.mason@doughtystreet.co.uk"><span style="color: #ff6600;">here</span></a>.</p> Paul Mason http://doughty-street-chambers.newsweaver.com/files/2/74771/158185/569778/bcdd6290d84155db8732d30a/mason_paul_headshot%20_1_.jpg R v Demario Williams http://doughty-street-chambers.newsweaver.com/Appeals/njjn7r35mgf?rss=true James Wood QC [ http://doughty-street-chambers.newsweaver.com/Appeals/1gf4ac109y9/external ] discusses the role of deterrence in the fixing of minimum terms in mandatory life sentences for murder in the case of juveniles and adults, and considers the discrete defence of using reasonable force in protection of property in the context of the recent appeal case of Williams. 10 Mar 2020 12:00:00 GMT 4bab3d80b88a43ea0ded3ddae134ff95 Two column articles [2020] EWCA Crim 193 <p><span style="font-size: 12px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;"><span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1gf4ac109y9/external" target="_blank" rel="noopener"><span style="font-size: 13px;">James Wood </span><span style="font-size: 13px;">QC</span></a></span></span></span> discusses the role of deterrence in the fixing of minimum terms in mandatory life sentences for murder in the case of juveniles and adults, and considers the discrete defence of using reasonable force in protection of property in the context of the recent appeal case of Williams.</p> <p align="center"><em>Mandatory life sentences – role of deterrence – young offenders</em></p> <p align="center"> </p> <p align="center"><strong>By James Wood QC</strong></p> <p><strong> </strong></p> <p style="text-align: justify;">The Court of Appeal has ruled that the role of deterrence as a relevant factor in the determination of the minimum term to be served when imposing a mandatory or discretionary life sentence, should in due course be considered in a case or series of cases in which the issue arises directly, with the Attorney General invited to intervene (see R v Williams at para 42).</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In Williams and others leave had been granted to appeal sentence on the basis that the trial judge had referred to deterrence in his sentencing remarks when fixing the minimum terms for  three 16 year olds convicted of involvement in a gang related murder by stabbing, when imposing minimum terms of 20 and 18 years. In the lead up to the hearing Flaux LJ granted permission for the Howard League for Prison Reform to intervene and make submissions on the appropriateness of deterrence as a sentencing factor for children in the fixing of the minimum term.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In a gathering of Doughty Street silks, Edward Fitzgerald QC, leading Pippa Woodrow, was instructed by the League, the author for Williams, and Isabella Forshall QC for Nkonke. In indicating they were proposing to reduce somewhat the minimum terms imposed, the court stated in argument it did not consider itself a sufficiently strongly constituted court to determine the issue of deterrence, but that that issue should in due course be considered by a 5 person court, specially convened for consideration of the role of deterrence. In the event the court reduced the minimum terms imposed to 18 and 16 years.  In written arguments Counsel for the appellants and the League contended “<a name="para40"></a>that: (i) there was strong scientific evidence that children have cognitive developmental deficits in relation to the type of consequential reasoning necessary for deterrence to be effective; (ii) there is no consistent evidence that increasing sentence length effectively deters other children from committing like offences; (iii) increasing a child's sentence is without purpose, can be harmful and may be arbitrary and unlawful; (iv) deterrence as a legitimate factor in the sentencing of children is not mandated by statute.” (per para 40). In other arguments to be advanced in the Grounds, it was noted that:</p> <ol style="text-align: justify;"> <li>Deterrence is expressly excluded as a specific sentencing criteria in sentences fixed by law, (see s142(2)(b) Criminal Justice Act 2003 in all cases (adults and juveniles);</li> <li>Mandatory life sentences are excluded by a footnote in the Sentencing Council’s Guidance on sentencing children, which otherwise suggests deterrence can be a proper sentencing factor;</li> <li>Deterrence finds no place in the aggravating or mitigating feature identified in Schedule 21 CJA 2003 for the fixing of the minimum term;</li> <li>Neither s.37(1) Crime and Disorder Act 1998 and s 44(1) Children and Young Persons Act 1933 (the sentencing framework for children) refers to deterrence as a suitable principle for sentencing in connection with children; and</li> <li>The yet to be implemented s142A CJA 2003 concerning sentencing of children, does not refer to deterrence at all.</li> </ol> <p style="text-align: justify;">The Howard League made detailed submissions on the international position, in which it appears the UK remains somewhat out of kilter with much of the rest of the western world. Dr Laura Janes of the League remains committed to identifying suitable future cases for consideration of this issue by the courts.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In declining a renewed application for leave to appeal conviction by Williams the court gave some guidance on the extent and ambit of s76(2) of the Criminal Justice and Immigration Act 2008, as to when steps can be taken to protect property from theft. It effectively ruled that recovery of already stolen property can never justify the use of force in its recovery, once the offence of robbery and/or theft has been completed, and that in the circumstances s3 of the CLA 1967 was not apt to cover recovery of property.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="font-size: 13px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">If you would like to speak to <span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1gf4ac109y9/external" target="_blank" rel="noopener">James Wood QC</a><a style="text-decoration-line: none; color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/lksbubom57h/external" target="_blank" rel="noopener"> </a></span>about</span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"> <span style="color: #000000;">this case</span></span><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">, please email </span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"><a style="text-decoration-line: none; color: #ff6600;" href="mailto:j.wood@doughtystreet.co.uk">here</a>.</span></span></p> <p style="text-align: justify;"> </p> <p> </p> James Wood QC http://doughty-street-chambers.newsweaver.com/files/2/74771/158185/569778/452b20aa34af4a5619a03ffe/wood_james_headshot%20_2_.jpg Appeals against Sentence; England and Wales http://doughty-street-chambers.newsweaver.com/Appeals/233046mu7rb?rss=true Farrhat Arshad [ http://doughty-street-chambers.newsweaver.com/Appeals/17a4sy4nls3/external ] looks at a CACD sentence appeal considering the meaning of “particularly vulnerable” in the Sexual offences Guidelines. 10 Mar 2020 12:00:00 GMT 223a23c66444365a9d7a286a14ee62e2 Two column articles <p><span style="color: #ff6600;"><a href="http://doughty-street-chambers.newsweaver.com/Appeals/17a4sy4nls3/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Farrhat Arshad</span></a> <span style="color: #000000;">looks at a </span></span><span style="color: #000000;">CACD sentence appeal considering the meaning of “particularly vulnerable” in the Sexual offences Guidelines.</span></p> <p style="text-align: center;"><strong>By Farrhat Arshad</strong></p> <p align="center"><em> </em></p> <p align="center"><em>Whether teenage, drunk victim “particularly vulnerable” within the meaning of Sexual Offences Guideline;</em></p> <p align="center"> </p> <p align="center"><strong>R v K</strong></p> <p align="center">[2020] EWCA Crim 197</p> <p align="center"> </p> <p style="text-align: justify;">K appealed against a total sentence of 12 years’ imprisonment imposed for two counts of rape (oral and vaginal) two counts of assault by penetration and one offence of sexual assault.  All the offences were committed against the same victim, “AB”, who was the 17 year old niece of the appellant’s partner.  The offences were committed when the victim was in bed at her aunt’s house following a party. She stated in evidence she felt quite drunk. The judge had categorised the rapes as Category 2A: in her view, AB was particularly vulnerable due to her personal circumstances as a teenager who was drunk and unable to resist the assault. Looking at the appellant's culpability, there was an abuse of trust.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Appeal allowed: the CACD held that whilst undoubtedly vulnerable, AB did not fall into the category of "particularly vulnerable due to personal circumstances". Category 3A was the correct one.  The aggravating features identified by the judge would justify an increase above the starting point and there had to be an upward adjustment to reflect the fact that this was not a single offence of rape but that AB was raped in different ways and was also sexually assaulted several times. The judge was entitled and correct to reflect the whole course of sexual offending on count 5 and to make all other sentences run concurrently. The appropriate sentence after a trial in this case was one of 10 years.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">If you would like to speak to <a href="http://doughty-street-chambers.newsweaver.com/Appeals/17a4sy4nls3/external" target="_blank" rel="noopener"><span style="color: #ff6600;">Farrhat Arshad</span></a> about this case, please email <a href="mailto:f.arshad@doughtystreet.co.uk"><span style="color: #ff6600;">here</span></a>.</p> Farrhat Arshad http://doughty-street-chambers.newsweaver.com/files/2/74771/158185/569778/cdba5cdd0da9426d0f55bf39/arshad_farrhat_headshot%20_1_.jpg Appeals against Conviction; England and Wales http://doughty-street-chambers.newsweaver.com/Appeals/1jp15tjib4f?rss=true Paul Taylor QC [ http://doughty-street-chambers.newsweaver.com/Appeals/44m4v5m6xc9/external ] and Farrhat Arshad [ http://doughty-street-chambers.newsweaver.com/Appeals/1vl7mauri67/external ] look at CACD conviction appeals arising from a witness who refuses to continue mid way through cross-examination; fresh evidence and diminished responsibility; non-defendant’s bad character; hearsay evidence. 08 Mar 2019 12:00:00 GMT 2c8c8aa452b64b85211013f1091e7e66 Two column articles <p><span style="font-size: 13px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;"> <span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/44m4v5m6xc9/external" target="_blank" rel="noopener">Paul Taylor QC </a><span style="color: #000000;">and</span> <a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1vl7mauri67/external" target="_blank" rel="noopener">Farrhat Arshad</a><span style="color: #000000;"> look at </span></span></span><span style="color: #000000;">CACD conviction appeals arising from a witness who refuses to continue mid way through cross-examination; fresh evidence and diminished responsibility; non-defendant’s bad character; hearsay evidence.</span></span></p> <p align="center"><strong>By Paul Taylor QC</strong></p> <p align="center"><strong> </strong></p> <p align="center"><em>Fair trial – cross-examination – witness refused to continue – abuse of process application</em></p> <p align="center"> </p> <p align="center"><strong>RT and Stuchfield</strong></p> <p align="center">[2020] EWCA Crim 155</p> <p align="center"> </p> <p style="text-align: justify;">This appeal raised an issue about whether the trial judge was entitled to continue a trial in circumstances where a prosecution witness, aged 16 years, who had been diagnosed with ADHD, who had given evidence in chief and who had been cross-examined in part on behalf of one appellant, became distressed and refused to continue to give evidence.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">RT, a 15 year old child who was 14 years old at the time of the trial and S, a 20 year old man who was 19 years old at the time of the trial were convicted of conspiracy to commit robbery. The prosecution relied on evidence from Ms F in relation to the appellants’ conversation in McDonalds and the fact that they were discussing their plan to commit a robbery.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">There was a late application for special measures for Ms F because she was aged 16 years at the time of the trial and had been diagnosed with ADHD, although there was no medical evidence available at the start of the trial, and there were ongoing investigations into whether she had autism.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Despite a grounds rule hearing, at one point in F’s cross-examination by S’s counsel she was asked: “Are you going to continue to lie whilst giving your evidence to the court?” The judge intervened saying that was not an appropriate question and the witness said “I wanna go home”. Thereafter every effort was made to persuade Ms F to continue with her evidence but she refused to continue her evidence. The efforts continued and Ms F was given time to consider her position but she refused to return to Court. This meant that the cross examination on behalf of S had not been completed and the cross examination on behalf of RT could not be carried out.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">An agreed fact was also set out that Ms F had refused to return to court, even though the judge had told her that the questions would be limited to 20 minutes and the type of questions would be closely monitored.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The judge was asked to stop the trial and discharge the jury. The Judge ruled that despite the fact that the witness Ms F did not wish to continue her evidence, it would not be unfair to either appellant to continue with the trial. An application was then made to stay proceedings as an abuse of process. The judge gave a ruling rejecting the application.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Judge gave written directions which he read out on how to deal with Ms F’s evidence. The Judge noted that Ms F had left Court and refused to return after an inappropriate question. He noted that counsel had not been able to put part of their case. The judge said Ms F’s evidence “therefore has limitations as it has not been thoroughly tested. You do not know what she would have said had her evidence been further tested…</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><u>The CA stated that:</u></p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>The defendant has a fundamental right under the criminal law to a fair trial. The right of a legal representative to ask questions of witnesses giving evidence against the defendant is one way in which a fair trial is delivered but limitations have long been recognised to the right to question, for example the hearsay statements of dying witnesses cannot, for obvious reasons, be questioned. In some cases the effect of not being able to cross examine a witness who has become ill and unable to continue has meant that a fair trial becomes impossible. In other cases it has proved possible to continue the trial and ensure that it is fair.</li> <li>When considering whether a fair trial is possible when a witness’s evidence has been cut short a judge will have regard to the extent to which the defence has been put and explored with the witness, whether previous inconsistent statements can be put into agreed facts, and whether there is other relevant evidence,</li> </ol> <p style="text-align: justify;">The appeal was dismissed:</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">“In our judgment the trial judge was entitled to continue the trial of RT and Mr Stuchfield even though Ms F was not available for the whole of the cross examination on behalf of Mr Stuchfield and there was no cross examination on behalf of RT. This was because the trial remained fair for both RT and Mr Stuchfield in the particular circumstances of this case.”</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">These circumstances included:</p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>The facts that first the jury had seen Ms F give evidence and be cross examined at least in part;</li> <li>There was some unfortunate questioning of Ms F which explained her refusal to stay for the whole of the cross examination, although we make it clear that the trial judge found that this questioning was not carried out deliberately to provoke the witness, and counsel for RT did not have the opportunity to carry out any questioning.</li> <li>There was material which was admitted, including the Facebook messages, which enabled the jury to make a fair assessment of the credibility and reliability of Ms F’s evidence.</li> <li>Ms F’s evidence could be assessed in the context of the other evidence which included: DNA evidence against RT; evidence about earlier social media conversations about a plan to commit a robbery; CCTV evidence showing the movements of RT and Mr Stuchfield; and Mr Stuchfield’s letter sent after the offence.</li> <li>The judge gave proper directions to the jury identifying the limitations of Ms F’s evidence.</li> </ol> <p style="text-align: justify;">“We are also satisfied that there was no abuse of process in continuing the trial in the circumstances set out above. This was because the trial process enabled the appellants to deal with the effect of the absence of Ms F. We can see no basis for saying that the conviction of either RT or Mr Stuchfield was unsafe.”</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em><u>Commentary:</u></em></p> <p style="text-align: justify;">The question of whether a defendant has had a fair trial in such circumstances will always be case specific and depend on the issues at trial, the point at which the witness refused to continue, and the ability of the trial process to address the resulting imbalance.</p> <p style="text-align: justify;">It is respectfully submitted that unless the defendant made an informed tactical decision to instruct counsel to cross-examine the witness in an inappropriate way, counsel’s error in this regard should not be held against D when evaluating whether he could / did have a fair trial.</p> <p> </p> <p> </p> <p align="center"><em>Fresh evidence – diminished responsibility – investigated but not run at trial – new psychiatric report prepared for appeal</em></p> <p align="center"> </p> <p align="center"><strong>Foy</strong></p> <p align="center">[2020] EWCA Crim 270</p> <p align="center"> </p> <p style="text-align: justify;"><em>The appeal was founded on fresh evidence – primarily expert psychiatric evidence – to the effect that a defence of diminished responsibility was available. Such a defence had been considered before the trial, but not pursued because of an adverse expert report.</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">F fatally stabbed LV in the street. The two were complete strangers to each other. F was indisputably experiencing a psychotic episode at the time; he had voluntarily ingested huge quantities of alcohol and cocaine. The sole defence at trial to murder was lack of the necessary intent. F gave evidence. He was convicted.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The appeal raised two principal questions. First, should this proposed fresh evidence be admitted at all – the defence had been investigated pre-trial? Second, is the proposed fresh evidence, even if otherwise admissible, such that the conviction is to be adjudged unsafe? The issues raised also involved consideration of some of the vexed questions that can arise where a killing occurs in the context of a combination of voluntary intoxication and mental health issues on the part of the killer.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">F had a history of alcohol and cocaine abuse, but had never suffered from an addiction to intoxicants sufficient to amount to a disease or recognised medical condition. He had suffered from depression, anxiety and paranoia.</p> <p style="text-align: justify;">In preparing for trial, Dr. Isaac, “a very experienced consultant psychiatrist, was instructed.” On the basis of the expert’s report and additional correspondence and comments on further material “this evidence would not establish a defence of diminished responsibility on the balance of probabilities. No further psychiatric report was obtained from any other psychiatrist. In such circumstances, the legal team for the defence were not in a position to advance such a defence at trial.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Post conviction a new psychiatric expert was instructed, Dr. Philip Joseph. In Dr Joseph’s opinion, a defence of diminished responsibility was available. “…I am of the opinion that despite probable intoxication with cocaine and to a lesser extent alcohol at the time of the killing, the defendant was suffering from an acute transient psychotic episode, independent of drug and alcohol abuse, which substantially impaired his mental responsibility for the killing. I conclude therefore that he has a defence to murder of manslaughter on the grounds of diminished responsibility.”</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Dr Blackwood, instructed by the Crown on this appeal, in essence shared the ultimate view of Dr Isaac.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><u>The CACD rejected the appeal on two bases:</u></p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>It was not in the interests of justice to admit the fresh evidence;</li> <li>In any event, “<em>we consider that the proposed fresh evidence does not in any event afford a viable defence of diminished responsibility which a jury, properly directed, could accept on the balance of probabilities.”</em></li> </ol> <p style="text-align: justify;"><em>[This summary considers the first basis only]:</em></p> <p style="text-align: justify;">The Court of Appeal considered the admission of fresh evidence on appeal under section 23 Criminal Appeal Act 1968 at paras 50- 64. <em>These paragraphs contain important statements of principle and they have been set out in some detail: </em></p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>“One core principle relating to the good administration of justice is the need for finality in litigation. It is ordinarily the obligation of a party to advance his whole case at trial: and an appeal cannot simply be treated as a means of having a second go. There may be some exceptions to this general approach: but that remains the general approach. Were it otherwise, the whole trial process would stand to be subverted.</li> <li>In the present case, there is no question of any legal oversight or legal error at trial. On the contrary, the issue of diminished responsibility was fully examined; the opinion of a reputable psychiatrist obtained; and the legal view that, in the light of that opinion, a defence of diminished responsibility could not be made out was correct. It was correct because it is well-established that there must be appropriate evidence adduced to support such a defence: and self-evidently the opinion of Dr Isaac, so far from supporting it, rebutted such a defence.</li> <li>So ultimately what we now have is one expert (Dr Joseph) taking a different view, instructed after trial, from that of another expert (Dr Isaac), instructed before trial. Moreover, their views were expressed on essentially the same material.</li> <li>Dr. Joseph agreed with the proposition put to him by Mr Glasgow that having had access to the same information the two had reached different conclusions. He also in terms accepted that the opinion of Dr Isaac (as also the opinion of Dr Blackwood) was an opinion that could reasonably be held by a responsible expert psychiatrist.</li> <li>Mr Pownall observed that had, in response to the initial approach, Dr Joseph provided his written report before trial then a defence of diminished responsibility would have been available in this case to be deployed before the jury. But that sort of consideration cannot, of itself, displace the ordinary approach required to be taken by the courts in assessing applications to adduce fresh evidence. Besides, in the present case the family have proved to have been in a position, following conviction, to raise funds privately to commission a report from Dr Joseph. If there was dissatisfaction or dismay at the time with the conclusion of Dr Isaac before trial then it was open to them at that time to raise funds to seek to commission a further report at that stage: and doubtless an adjournment, if needed, would have been granted for that purpose. But it is not, in our opinion, acceptable to wait upon the outcome of the trial: and then, and only then, when the defence of lack of intent was disproved and the appellant convicted, seek to resurrect a defence of diminished responsibility by commissioning a fresh psychiatric report from a different psychiatrist. We do not say that by way of criticism of anybody for not obtaining a further report before trial. But it is an answer to Mr Pownall’s point.</li> <li>Whilst all such cases ultimately are fact specific, numerous authorities illustrate the rigorous approach which is generally taken by the courts in a context such as the present.</li> <li>Thus in Erskine and Williams [2009] EWCA Crim 1425, [2009] 2 Cr. App. R 29 it was emphasised, following a lengthy review of the authorities, that it would be exceptional to permit a defence to be advanced or fresh evidence adduced on appeal when it could and should have been advanced at trial: otherwise the trial process is subverted.</li> <li>This general approach was followed and endorsed in Evans [2009] EWCA Crim 2243, [2010] Crim. L R 491.</li> <li>In Challen [2019] EWCA Crim 916 it was emphasised that there were unusual circumstances, whereby the court was prepared to admit fresh psychiatric evidence.</li> <li>This is not a case where a potential defence of diminished responsibility was overlooked. This is not a case where the instructed expert, of acknowledged expertise, has overlooked or misunderstood relevant information or did not have access to relevant information. This is not a case where the expert failed diligently to examine the relevant materials or failed to reach a proper conclusion reasonably open to him. This is not a case where important new facts or materials or other developments have emerged since trial. In truth, this case is, in its fundamentals, a case where, following conviction, an attempt has been made to instruct a new expert with a view to securing – as has happened – an opinion on diminished responsibility different from that of the previous expert instructed before trial. It is, bluntly, expert shopping.</li> <li>A defence of diminished responsibility is not, in itself, inconsistent with a defence of lack of intent. But the defence of lack of intent in the present case was essentially founded on the great quantities of alcohol and cocaine said to have been ingested: whereas such evidence would potentially tell against (even if not of itself necessarily demolishing) a defence of diminished responsibility.</li> </ol> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em><u>Commentary:</u></em></p> <p style="text-align: justify;">The major obstacle in this case appeared to be the fact that both pre-trial and post trial psychiatrists considered the same material but reached different conclusions. The CACD <em>may</em> have been willing to take a more generous approach if the first expert had not seen important material because of an oversight, unavailability at the time, or because the material came into being post trial. [See <em><u>Jamie Petrolini</u></em> [2012] EWCA Crim 2055 where the CACD admitted fresh evidence based on the many years of clinical observations post trial.]</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">So far as finality in litigation is concerned, it is respectfully submitted that this should not play a significant role in determining whether it is in the interests of justice to admit fresh evidence. The ultimate test is whether the conviction is unsafe, and if the fresh evidence demonstrates that it is, it is difficult to justify a refusal to admit it on the basis that it is an attempt to have a second go. If the Court concludes that the fresh evidence shows that there has been a miscarriage of justice, it is of little comfort to the appellant if the Court upholds the conviction on the need for finality. Indeed, the CACD has quashed convictions despite finding that the appellant lied at trial, or sought to tactically subvert the trial; but such cases are all decided on the facts, and no general principle can be discerned other than that the CACD will on occasion quash such convictions despite the need for “finality”.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"> </p> <p style="text-align: center;"><strong>By Farrhat Arshad</strong></p> <p style="text-align: center;"> </p> <p align="center"><em>Non-defendant’s bad character – s. 100 CJA 2003; credibility; sex offences</em></p> <p align="center"> </p> <p align="center"><strong>R v Murphy</strong></p> <p align="center">[2020] EWCA Crim 137</p> <p align="center"> </p> <p style="text-align: justify;">At his trial for rape, M had called as a witness of fact his friend, KM.  The trial judge allowed KM’s convictions for sex offences to go before the jury, pursuant to the Prosecution application via s 100(1)(b) CJA 2003.  The Prosecution argued <a name="para18"></a>that the evidence of KM’s previous sexual offences would enable the jury to weigh his previous convictions in deciding why he might lie on behalf of a friend accused of such offences.  The Defence argued that <a name="para19"></a>being a convicted sex offender did not mean that he was more likely to give untruthful evidence.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Appeal dismissed.  The CACD applied the two questions set out in <strong>R v Brewster [2011] 1 WLR 601</strong>: (1)  Whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole - a significant hurdle. (2)<a name="para36"></a> Whether the bad character relied upon is of substantial probative value in relation to that issue.  As per <strong>Brewster</strong>: whether convictions have persuasive value on the issue of creditworthiness will depend principally on the nature, number and age of the convictions but it is not necessary for the convictions to demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness's evidence.  On the particular facts of this case, the credibility of the evidence given on each side was of crucial significance and it was open to the trial judge to conclude that the witness’s previous convictions had substantial probative value.</p> <p> </p> <p><strong> </strong></p> <p align="center"><em>Admissibility of interview as hearsay evidence against co-defendant - s114(1)(d) CJA 2003; s119 CJA 2003; jury directions</em></p> <p align="center"> </p> <p align="center"><strong>R v Van Huong Nguyen</strong></p> <p align="center">[2020] EWCA Crim 140</p> <p align="center"> </p> <p style="text-align: justify;">N was convicted of <a name="para1"></a>two counts of kidnapping, one count of carrying an imitation firearm with criminal intent and two counts of false imprisonment.  At N’s trial the trial judge allowed the interview of the co-defendant, T, to be used as evidence against N, pursuant to s 114(1)(d) CJA 2003.  The judge himself raised the issue, only after the legal directions and counsel’s speeches had been given (and before the evidence was summed up).  In<a name="para33"></a> the event, the judge did not give the jury any specific direction about the use they could make of the interview or any sort of warning about it but told the jury that T’s interview could be used as evidence as to what had happened inside the house where the false imprisonment was said to have taken place.  The judge also allowed the interview in <a name="para62"></a>as a previous inconsistent statement under s 119 CJA 2003 as evidence against the co-defendant.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The CACD dismissed the appeal.  In relation to the s 114(1)(d) CJA 2003 gateway, putting aside the lateness of the application, <a name="para60"></a>the judge had properly assessed the various factors under s 114(2).  <a name="para66"></a>As for the lateness of the application, what mattered was the extent to which the lateness of the application can be said to have caused irremediable prejudice to the appellant.   The CACD <a name="para70"></a>considered that whilst there was some prejudice to the appellant from the lateness of the application, this was not sufficiently serious to warrant refusal of the application under s 114(1)(d). The <a name="para77"></a>judge should have given the jury directions about how they should approach the evidence but the failure to do so did not render these convictions unsafe.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In relation to s 119 CJA 2003: the judge was wrong to admit T’s interview as a previous inconsistent statement<a name="para63"></a> admissible as evidence against another defendant via s 119.  Under s 119 the previous inconsistent statement was admissible only against the person making the statement as evidence of the truth of its contents.    </p> <p> </p> <p> </p> <p><span style="font-size: 13px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">If you would like to speak to <span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/44m4v5m6xc9/external" target="_blank" rel="noopener">Paul Taylor QC </a><span style="color: #000000;">and</span> <a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1vl7mauri67/external" target="_blank" rel="noopener">Farrhat Arshad </a></span>about</span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"> <span style="color: #000000;">these cases</span></span><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">, please em<span style="color: #000000;">ail </span></span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #000000;"><a style="color: #000000;" href="mailto:p.taylor@doughtystreet.co.uk"><span style="color: #ff6600;">here</span></a> for Paul and <span style="color: #ff6600;"><a style="color: #ff6600;" href="mailto:f.arshad@doughtystreet.co.uk">here</a></span> for Farrhat.</span></span></p> <p> </p> Carribbean Case Summary http://doughty-street-chambers.newsweaver.com/Appeals/15zill5gziv?rss=true Paul Taylor QC [ http://doughty-street-chambers.newsweaver.com/Appeals/tak4cf5b71z/external ] looks at a CCJ appeal based on identification evidence. 06 Jun 2019 12:00:00 IST 20622697b4bc993e04f12b376ef36d8d Two column articles <p><span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/tak4cf5b71z/external" target="_blank" rel="noopener">Paul Taylor QC</a></span> looks at a CCJ appeal based on identification evidence.</p> <p style="text-align: center;"><strong>By Paul Taylor QC</strong></p> <p style="text-align: center;"> </p> <p><strong>Caribbean Court of Justice</strong></p> <p><strong>On appeal from the Court of Appeal of Barbados</strong></p> <p><strong> </strong></p> <p align="center"><em>Identification evidence – no case submission – corroboration </em><em>– special circumstances under Section 102 Barbados Evidence Act</em></p> <p align="center"><em>– good character evidence – unsworn evidence – Section 95 Barbados Evidence Act – credibility and propensity</em></p> <p><strong> </strong></p> <p align="center"><strong>Carlton Junior Hall v The Queen</strong></p> <p align="center">[2020] CCJ 1 (AJ) S</p> <p align="center"><em>Based on judgement summary</em></p> <p> </p> <p style="text-align: justify;">H was convicted of murder. The Court of Appeal dismissed his appeal against conviction and ordered that he be brought before the trial court for resentencing.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">H appealed to the CCJ on the following grounds:</p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>The identification evidence was weak and unreliable. The Trial Judge erred when she:</li> </ol> <ol style="list-style-type: lower-roman; text-align: justify;"> <li>failed to withdraw the case from the jury on the basis that the identification evidence was unreliable;</li> <li>directed the jury that there were special circumstances supporting the identification when there were no such special circumstances;</li> <li>misdirected the jury on the law with respect to the circumstantial evidence needed to corroborate the identification evidence.</li> </ol> <ol style="list-style-type: lower-alpha; text-align: justify;" start="2"> <li>His Counsel had erred in not raising his good character, resulting in the Trial Judge not giving the appropriate direction;</li> <li>The Court of Appeal erred in allowing his murder conviction to stand.</li> </ol> <p style="text-align: justify;">At trial, the case for the prosecution had hinged on the eyewitness evidence of Mr. Benn, a friend of the deceased. Mr. Benn was cross-examined about the amount of alcohol he had drunk that night and about other alleged inconsistencies in his testimony.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">At the close of the case for the prosecution, Counsel for the Appellant made the submission, pursuant to Section 102 of the Evidence Act, that there was no case to answer, because the identification evidence was unreliable and there were no special circumstances to bolster that evidence. The Trial Judge rejected the submission and ruled that there was a case to answer.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">H elected to make an unsworn statement from the dock. He stated that he had never seen the deceased man in his life and had no reason to harm him. The jury returned a unanimous verdict of guilty of murder.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><u>The Court of Appeal</u> rejected H’s appeal because ‘[t]he quality of the evidence adduced by the Crown in this matter, was of such a standard as to constitute “special circumstances” within the meaning of Section 102(2)(a) and was properly placed before the Jury who were adequately warned’.</p> <p style="text-align: justify;"><u>CCJ:</u> The appeal was dismissed by a majority of 3-2.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Mr Justice Anderson, JCCJ gave judgement on behalf of the majority:</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em><u>Identification</u></em></p> <ol style="list-style-type: lower-alpha; text-align: justify;"> <li>He considered Section 102 of the Evidence Act and the Turnbull Guidelines in light of <em>DPP’s Reference No. 1 of 2001 </em>of the Barbados Court of Appeal and the decision of this Court in <em>Severin v The Queen </em>[2018] CCJ 19 (AJ).</li> <li>The nature and circumstances of the previous sightings of the Appellant by Mr. Benn were such as to be regarded as special circumstances for the purposes of Section 102.</li> <li>Although the identification evidence had passed the threshold that warranted it being left to the jury, there was still a need to give the jury certain directions and warnings. Those directions and warnings were found to be adequate and, indeed, exemplary.</li> <li>There was no merit to the submissions that the Trial Judge misdirected the jury on the law relating to corroboration.</li> </ol> <ol style="list-style-type: lower-roman; text-align: justify;"> <li>Corroboration of identification evidence was not needed for a conviction</li> <li>The Trial Judge had not directed that the expert evidence corroborated the identification evidence. She had merely highlighted that the testimony of Mr Benn was consistent with the expert evidence that the deceased was shot from the front. This was relevant evidence, but it did not, by itself, confirm or prove that it was the Appellant who did the shooting.</li> </ol> <p style="text-align: justify;"><em><u>Good character</u></em></p> <ol style="list-style-type: lower-alpha;" start="5"> <li style="text-align: justify;">The majority made general comments on the issue of good character before proceeding to consider the applicability of this Court’s decision in <em>August and Gabb v The Queen </em>[2018] CCJ 7 that a good character direction as to credibility was not warranted where a defendant does not give sworn testimony.</li> <li style="text-align: justify;">The majority found that since the Evidence Act of Barbados regarded an unsworn statement as evidence of approximately the same status as sworn evidence, there was a reasonable argument that a good character direction is required in Barbados whether an accused gave sworn or unsworn evidence. This was supported by the decision of the Barbados Court of Appeal in <em>Re Nurse</em> [34 of 2004]. The majority was also of the view that the failure of an attorney to raise the good character of his client at trial would not normally deprive the accused of the entitlement to the good character direction.</li> <li style="text-align: justify;">The test as laid out in <em>August and Gabb</em>, is that the failure to give a good character direction, where such direction is warranted, will result in a conviction being overturned unless the jury would inevitably have returned the same verdict had the direction been given. The majority explained that this meant that the conviction must be overturned unless the appellate court was satisfied that the jury would have returned the same verdict had the direction been given. The Privy Council decision in <em>Sealey & Anor v The State (Trinidad and Tobago) </em>[2002] UKPC 52 was cited for the proposition that it was permissible to compare the relative strengths and weaknesses of the case put forward by the prosecution and the defence in deciding on the likely attitude of the jury. The majority found that, in the present case, the case for the prosecution was strong compared to that for the Appellant, who offered the most perfunctory and <em>pro forma </em>defence from the dock and called no witnesses to support that defence. The jury clearly found the testimony of the witness, Mr. Benn, to be compelling and disbelieved the Appellant. As such, even if the good character direction had been given, the jury would have still found the Appellant guilty of murder.</li> </ol> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="font-size: 13px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">If you would like to speak to <span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/tak4cf5b71z/external" target="_blank" rel="noopener">Paul Taylor QC </a></span>about</span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"> <span style="color: #000000;">this case</span></span><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">, please email </span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"><a style="text-decoration-line: none; color: #ff6600;" href="mailto:p.taylor@doughtystreet.co.uk">here</a>.</span></span></p> Northern Ireland Case Summary http://doughty-street-chambers.newsweaver.com/Appeals/1c9eas1yrw4?rss=true Paul Taylor QC [ http://doughty-street-chambers.newsweaver.com/Appeals/1nvat6kvcjk/external ] looks at NICA DPP’s Reference on firearms and drugs offences. 06 Jun 2019 12:00:00 IST 77c7994cff972f35e582deaa5f5f37ec Two column articles <p><span style="color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/1nvat6kvcjk/external" target="_blank" rel="noopener">Paul Taylor QC</a> <span style="color: #000000;">looks at </span></span><span style="color: #000000;">NICA DPP’s Reference on firearms and drugs offences.</span></p> <p align="center"><strong>By Paul Taylor QC</strong></p> <p align="center"><strong> </strong></p> <p align="center"><em>DPP’s reference – guilty pleas – deferred sentence – sentencing for firearms offences, knife and drugs offence – double jeopardy and article 70</em></p> <p align="center"> </p> <p align="center"><strong>Director of Public Prosecution's Reference (Number 6 of 2019) </strong></p> <p align="center"><strong>Ian David Price</strong></p> <p align="center">[2020] NICA 8</p> <p align="center"> </p> <p style="text-align: justify;" align="center"><em>This is an important case in which the NICA (including the Lord Chief Justice) consider the correct approach to sentencing for firearms offences (including the Avis criteria and article 70), knife and drugs offences.</em></p> <p style="text-align: justify;" align="center"><br />DP pleaded eventually guilty (a) to three firearms offences together with an offence in relation to a machete and (b) to three drug offences.</p> <p style="text-align: justify;" align="center"> </p> <p style="text-align: justify;">When he appeared for sentencing the judge deferred sentence for 6 months stating that if he was told at the end of that period that DP had turned his life around without coming to police attention, continuing with counselling and having made efforts to come to terms with his various addictions that the sentence which would be imposed would not involve a return to prison. </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Director of Public Prosecutions sought leave to refer the deferral of sentence to the Court of Appeal pursuant to Section 36 of the Criminal Justice Act 1988 on the grounds that it was unduly lenient.  </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">DP had been convicted of a further 167 offences. The overwhelming majority were for road traffic offences; many were comparatively minor. His longest previous custodial sentence was two years and six months imposed in 2010. The record does not contain any previous firearm offence but there were relevant previous convictions: Offensive weapons, drugs offences, assaults.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">He was 31 years old at the time of the offences, 33 at the appeal. He had a history of misuse of alcohol, drugs and solvents.   He has been the victim of paramilitary assaults on the basis of his alleged involvement in anti-social behaviour.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">He informed the author of the pre-sentence report that since his release from custody in 2018 he has refrained from misusing substances, he has distanced himself from negative associates, he has engaged in counselling and he has benefited from attending church which he joined as a means of accessing spiritual support with a view to leading a more settled lifestyle.  The probation officer observed that he made a similar claim in the past but ceased attending church. The Probation Service assessed him as presenting a high likelihood of re-offending primarily on the basis of his prior offending history but also on the basis of his association with pro-criminal influences, distorted thinking, unstructured lifestyle, susceptibility to misuse illicit substances and alcohol, impulsivity, risk taking behaviour, reckless behaviour, lack of consequential thinking and limited victim awareness. The probation officer also stated that the offender did not meet PBNI’s criteria to be assessed as posing a significant risk of serious harm at this time.  In the event of the court considering alternatives to custody the offender was assessed as suitable and had consented to the imposition of an enhanced combination order.  </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;" align="left">A psychiatrist considered that the most appropriate psychiatric diagnosis was one of a personality disorder and that the offender’s account of relative stability in the last year and half, if it is true, was consistent with a prospect of a reduction or cessation of offending behaviour.</p> <p style="text-align: justify;" align="left"> </p> <p style="text-align: justify;">The Court addressed the following issues:</p> <ol style="text-align: justify;"> <li>Sentencing for Firearms offences:</li> <li>Whether the Avis questions assist when considering whether there are exceptional circumstances under Article 70;</li> <li>Article 70 of the 2004 Order, “Minimum sentence for certain offences” and    exceptional circumstances relating to the offence or to the offender which  justify its not” passing a minimum sentence;</li> <li>Sentencing for knife crime</li> <li>Sentencing for drug offences</li> </ol> <p style="text-align: justify;">The NICA concluded that:</p> <ol style="text-align: justify;"> <li>“…  We consider that to impose five years’ imprisonment taking into account all the offences would not result in an arbitrary and disproportionate sentence.  This means that there were no exceptional circumstances in this case so that the judge ought not to have deferred sentence.</li> <li>The sentences that were imposed were unduly lenient.  We quash those sentences.</li> <li>We do not consider that double jeopardy has any impact on the appropriate sentences given the requirement of the minimum sentence in Article 70 which we will impose.</li> <li>For the firearms offences -  5 years in total; for drugs offences – Total 1 year. Both to run concurrently so 5 years in total.</li> </ol> <p style="text-align: justify;"> </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><span style="font-size: 13px;"><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">If you would like to speak to </span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"><a style="color: #ff6600;" href="http://doughty-street-chambers.newsweaver.com/Appeals/16ickwh494m/external" target="_blank" rel="noopener" data-canonicalurl="https://www.doughtystreet.co.uk/barristers/paul-taylor-qc">Paul Taylor QC</a><span style="color: #000000;"> about this </span></span><span style="color: #333333; font-family: Arial, Helvetica, sans-serif; text-align: justify;">case, please email </span><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify; color: #ff6600;"><a style="text-decoration-line: none; color: #ff6600;" href="mailto:p.taylor@doughtystreet.co.uk">here.</a></span></span></p>