Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

Welcome to the June 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 Liam Walker looks at a recent CACD decision on gross manslaughter and food allergies.

 

In this issue we also look at:

  • CACD conviction appeals dealing with criticism of trial counsel, victims of trafficking, fresh evidence, and inconsistent verdicts;
  • CACD sentencing appeals relating to discretionary life sentences, historic sex offences and youth of offender;
  • Financial Crime Appeal involving private prosecutions and costs out of central funds;
  • NICA DPP reference involving historic child sex offences and an elderly offender;
  • High Court of Judiciary appeal from Scotland on diminished responsibility;
  • Caribbean Court of Justice decision on life sentences, minimum terms and appellate courts considering matters not before the sentencing judge.

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 June 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 Liam Walker looks at a recent CACD decision on gross manslaughter and food allergies.

 

In this issue we also look at:

 

  • CACD conviction appeals dealing with criticism of trial counsel, victims of trafficking, fresh evidence, and inconsistent verdicts;
  • CACD sentencing appeals relating to discretionary life sentences, historic sex offences and youth of offender;
  • Financial Crime Appeal involving private prosecutions and costs out of central funds;
  • NICA DPP reference involving historic child sex offences and an elderly offender;
  • High Court of Judiciary appeal from Scotland on diminished responsibility;
  • Caribbean Court of Justice decision on life sentences, minimum terms and appellate courts considering matters not before the sentencing judge.

 

 

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
Gross negligence manslaughter and food allergies
 
Liam Walker
Liam Walker

Liam Walker looks at a recent CACD decision on gross manslaughter and food allergies.


By Liam Walker

 

R v Kuddus (Mohammed Abdul)

 

[2019] EWCA Crim 837

 

 

The appellant’s conviction for gross negligence manslaughter was quashed as unsafe.  In directing the jury, the judge had combined the duty owed by the owner of a business to ensure that appropriate safety systems were in place and the duties of those responsible for ensuring that appropriate steps had been taken.

 

The appellant was the owner of a takeaway called ‘Royal Spice’ where he also worked as a tandoori chef. The appellant, prior to trial, pleaded guilty to failure to discharge a general duty of employers, contrary to ss. 3(1), 33(1)(a) and 37 of the Health and Safety at Work etc. Act 1974 (count 1) and contravention of EU Food Safety Regulations contrary to Reg. 19(1) of and Sch. 2 to the Food Safety and Hygiene (England) Regulations 2013 (count 2).

 

The deceased had been diagnosed with allergies to nuts and other allergens at an early age. Those allergies were understood to be mild. On 30 December 2016, the deceased and her friend ordered a meal from Royal Spice through a third-party website called “Just Eat”. Their order included a Peshwari naan, onion bhaji and Seekh kebab, items which did not obviously contain peanuts. During the ordering process the website prompted them with the comment “Leave a note for the restaurant”. When this link was clicked, a box opened which allowed the customer to enter text. The box showed sample text, which said “Got an allergy, an address that’s hard to find, or a very friendly dog? ” In response to this prompt the deceased’s friend entered the words “Nuts, prawns” in the comments section of the webpage.

 

There was no evidence that the order printout received at the takeaway or the comments on the deceased’s order were seen by or passed on to the appellant, who was working as one of the chefs at the time. Sadly, the deceased suffered a severe allergic reaction and died in hospital two days after eating the food.

 

At trial the judge directed the jury on reasonable foreseeability of the relevant risk, but rejected a defence submission that the jury should first be asked to consider whether there had been a serious and obvious risk of death to M.

 

The appellant submitted that directions given to the jury were insufficient by:

 

  1. Not directing the jury that it needed to consider whether there was a serious and obvious risk that the breach of duty would cause M's death; and
  2. Directing the jury in terms which equated the knowledge of the business, or R, with that of the appellant, on the basis that he was responsible for the systems in place.

 

The Court rejected the first submission that, due to the mild nature of the deceased’s allergies, there was a requirement to prove a serious and obvious risk of death for the specific victim.

 

The Court allowed the appellant’s second submission (paras 78-84). The case against the appellant, who spoke little English and had only taken over the restaurant the previous year, was based solely on his failure to introduce appropriate systems. Given that there was no evidence that the appellant had received notification of the dangers posed to the deceased, by the food ordered, the jury direction on attribution of knowledge rendered his conviction unsafe. The Court noted that the case was fact-specific.

 

The Court applied the following cases in their judgement; R. v Rose (Honey Maria) [2017] EWCA Crim 1168, [2018] Q.B. 328, [2017] 7 WLUK 789 R. v Zaman (Mohammed Khalique) [2017] EWCA Crim 1783, [2018] 1 Cr. App. R. (S.) 26, [2017] 11 WLUK 155R. v Adomako (John Asare) [1995] 1 A.C. 171, [1994] 6 WLUK 393 and R. v Singh (Gurphal) Times, April 17, 1999, [1999] 2 WLUK 360.

 

Liam Walker is a specialist criminal practitioner. He is the author of Westlaw Insight’s guide to manslaughter. Liam specialises in defending corporations and individuals who are subject to prosecution following allegations of Health and Safety breaches.

 

 

If you would like to discuss aspects of the case, or instruct Liam Walker please email here.

 

Financial Crime Appeals
 
Richard Fisher QC
Richard Fisher QC

Richard Fisher QC explores Financial Crime Appeals involving private prosecutions and costs out of central funds.


By Richard Fisher QC

 

Private prosecution – costs out of central funds – confiscation order

 

Ketan Somaia

 

[2019] EWHC 1227 (QB)

 

INTRODUCTION

The High Court considered whether s.17 of the Prosecution of Offences Act 1985 (“POA 1985”) permitted a private prosecutor (Mr Mirchandani) to claim payment out of central funds in respect of his costs incurred in bringing enforcement proceedings in the High Court in relation to an unpaid confiscation order made pursuant to the Criminal Justice Act 1988 (“CJA 1988”). The private prosecutor’s costs included costs awarded against him in favour of an interested party to the proceedings who prevailed in a hearing to determine whether certain monies transferred to them were tainted gifts.

 

 

THE FACTS

The private prosecution related to an allegation of fraud. Following conviction at trial there then followed confiscation proceedings and a confiscation order was made on 12 January 2016 in the sum of £20,434,691. On the 6 September 2016 the prosecutor applied for a receiver to be appointed under s.80 of the CJA 1988 and commenced proceedings in the High Court. The proceedings were commenced against a number of parties and included applications for declarations that certain transfers of money were tainted gifts under s.74(1) of the CJA 1988. The proceedings were mostly settled except for those relating to the defendant’s former wife (Alka Gheewala), who succeeded. A costs order was made against the private prosecutor in respect of Alka Gheewala’s legal costs. Mrs Justice Jefford DBE originally decided that the private prosecutors’ total costs (including the costs awarded to Alka Gheewala) fell to be met from central funds but on presentation of his bill to the LAA of £578,801.69 for his own costs and £297,477.68 in respect Alaka Gheewala’s costs, the Lord Chancellor intervened and the original decision was set aside and heard afresh by the same judge.

 

The POA 1985, Pt II is concerned with defence, prosecution and third party costs in criminal cases. Section 6 relates to prosecutions instituted and conducted otherwise than by the CPS and therefore includes private prosecutions. Section 16 is concerned with defence costs and s.17 with prosecution costs.

 

The prosecutor applied under s.17 of the POA 1985 which provides that the court may “in any proceedings in respect of an indictable offence order payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expense properly incurred by him in the proceedings.” The prosecutor’s central submission was that that the enforcement proceedings, although not “criminal proceedings”, existed solely as a result of the criminal and confiscation proceedings and were provided for under the CJA 1988 to enable assets to be seized or received “in respect of an indictable offence.” It was submitted that the wording of s.17 is wide enough to encompass such civil proceedings.

The Lord Chancellor’s case was that the right to bring a private prosecution is derived from s.6 of the POA 1985 and the proceedings in respect of which an application for costs may be made must be criminal proceedings (relying on Steele Ford & Newton v Crown Prosecution Service [1994] 1 A.C. 22). Furthermore, although confiscation proceedings were part of the sentencing process and therefore part of criminal proceedings, enforcement proceedings in the High Court for the appointment of a receiver were purely civil proceedings (Re Norris [2001] UKHL 34), brought exercising the powers in the CJA 1988 and not s.6 of the POA 1985.

 

 

THE RULING

The judge found that s.17 of the POA 1985 was broad enough to encompass civil proceedings in the High Court to enforce a confiscation order and not limited to “criminal proceedings.” However, the legislative background examined in Steele Ford & Newton v CPS provided strong indications that the legislative intent was that s.17 should only apply to criminal proceedings and should not have such broader application. The judge decided that enforcement proceedings in the High Court and the determination of the issues relating to third party recipients were not “criminal proceedings” considering R (on the application of Lloyd) v Bow Street Magistrates Court [2003] EWHC 2294 (Admin), nor were they to be categorised as such by the Access to Justice Act 1999 (and s.14 of LASPO 2012) as “proceedings before a court dealing with an individual convicted of an offence, including proceedings in respect of a sentence or order.” In addition, as a defendant could not recover costs out of central funds (s.16 of POA 1985) it would be surprising if the prosecutor could under s.17. The regulations under POA 1985 do not provide for the determination of costs in the High Court. The amendments to the POA 1985 by LASPO 2012 (by the insertion of (2A) to (2C)) are such that unless fixed by the court, there is no mechanism to determine the amount to be paid out of central funds to the prosecutor in proceedings in the High Court.  

 

 

COMMENT

The issues were finely balanced. It could seem unfair that in pursuing enforcement proceedings in the High Court, this decision places a private prosecutor in a worse position than a State prosecutor pursuing enforcement whose legal costs would be funded by the State. As private prosecutions are on the rise, particularly in financial crime, thought may be given to amending the statute and costs regulations so as to provide for a private prosecutor’s position otherwise they may not be inclined to proceed where a confiscation order is not satisfied.

 

More generally, the ability of private prosecutors to recover their costs, win or lose, in criminal proceedings has received recent press attention (see Catherine Baksi’s article in The Times on 23 May 2019). It has been reported that between 2015 and 2018 almost £10million came out of the public purse to cover the legal costs of private prosecutors in criminal proceedings.  This must of course be compared to the current position for an accused who, when tried and acquitted, is restricted to recovering their legal costs to those equivalent to legal aid rates which are not likely to reimburse them in full in respect of the legal costs they have incurred. That position is considered by many to be an iniquitous position and is compounded by the prohibition under POCA 2002, on a restrained defendant, from being able to access funds to pay for legal representation. Many consider that both matters should be reviewed and changed to the position, as was, under the CJA 1988 and is the case in Civil Recovery proceedings under POCA 2002.

 

In this case the private prosecutor had successfully brought criminal proceedings resulting in a conviction and a confiscation order and under the applicable statute and costs rules/regulations he was able to recover his legal costs. In circumstances where the confiscation order had not been satisfied it might be thought that he had no option but to proceed to enforcement under the relevant provisions of the CJA 1988 which resulted in lengthy and partly contested applications in the High Court. Will this decision mean therefore that private prosecutors will be reluctant to pursue enforcement if they won’t recover their costs from central funds? That could mean more confiscation orders remain unpaid. Whether or not to pursue enforcement and incur the costs of such proceedings may be determined by how much of the order remains unsatisfied compared to the value of the identified assets to enforce against, as well as whether part of the confiscation order was to compensate the victim who may of course be the private prosecutor themselves. Could the CPS take up enforcement proceedings following on from a private prosecution and would they want to? Will convicted defendants who have not paid a confiscation order be able to frustrate matters and evade enforcement in cases where a private prosecutor won’t take on enforcement proceedings due to the fact that they could not recover their costs under the Act and regulations?

 

Would the ruling have been any different had the confiscation order and enforcement proceedings been brought under POCA 2002 where the Crown Court and not the High Court have jurisdiction? The judge did not have to decide whether enforcement proceedings in the Crown Court under POCA would satisfy s.6/s.17 and whether they are “criminal proceedings” but she did state, obiter, at paragraph 36 of the judgment that “It is unclear to me what the Lord Chancellor’s position would be in respect of such proceedings but I infer that it would be argued that that does not alter the position under s.17 because the enforcement proceedings are still not “criminal proceedings” but involve the Crown Court exercising a civil jurisdiction.” I agree with that, but we will have to await an enforcement case under POCA to see whether that interpretation is followed or not.

 

 

If you would like to speak to Richard Fisher QC 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 discretionary life sentences, historic sex offences and youth of offender.


 

By Farrhat Arshad

 

 

Discretionary life sentence; availability in absence of specified offence; test for imposition

 

R v Muzaffer Ali

 

[2019] EWCA Crim 856

 

A appealed against a sentence of life imprisonment, imposed for one offence of conspiracy to evade the prohibition on the importation of prohibited firearms.  A, the head of an organized crime group (“OCG”), had on two occasions during a period of four months imported firearms from mainland Europe.  On the first occasion those firearms had been sold to another OCG, before being seized by the police.  On the second occasion, the firearms were seized upon entry into the UK.   A argued (i) that as the firearms were for onward sale rather than use by him or his gang, this was not an offence which had consequences of the utmost gravity and (ii) life imprisonment was not appropriate where it was not evident that he would commit firearm offences in the future and a lengthy determinate sentence could be imposed instead.

 

The CACD held that following R v Saunders & Ors [2014] Cr App R (S) 258, it was clear that a discretionary life sentence could be imposed where the offending did not fall within the ambit of a mandatory life sentence, an automatic life sentence under section 224A or a discretionary life sentence under section 225 Criminal Justice Act 2003. Whilst Lord Judge in Saunders had described the circumstances when such a sentence should be imposed as “rare”, the CACD stated that, “a test of rarity or exceptionality does not help in defining the circumstances in which a life sentence is appropriate.”  In the CACD’s view, the two condition test set out in Attorney General's Reference 32 of 1996 (Whittaker) [1997] 1 Cr App R (S)261, and R v Chapman [2000] 1 Cr App R (S) 377, should be applied – (i) that the offender should have been convicted of a very serious offence and (ii) that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence - rather than the threefold test in R v Hodgson (1968) 52 Cr App R 113. The judge was entitled to the view that the appellant was dangerous in the ordinary meaning of the word rather than as defined in the 2003 Act.

 

Historic sexual offences; offences committed when a youth; culpability; maximum terms

 

R v Scott Goldfinch

 

[2019] EWCA Crim 878

 

In reducing a sentence of 6 ½ years’ imprisonment to 3 years' imprisonment for one offence of indecent assault (penile penetration of V’s mouth), committed 21 years before when G was aged 16 and V was aged four, the CACD re-iterated that the proper approach to sentencing for historical sexual offences, including of adults who committed offences when they were children, was authoritatively reviewed in R v Forbes and others [2016] 2 Cr App R (S) 44; [2017] 1 WLR 53. 

 

Whilst it was correct to say that the offence would now be one of Rape it was also important to remember that the maximum offence for indecent assault was ten years.  The CACD was of the view that factor had not been properly reflected in the sentence of 6 ½ years. Further, it was important that the sentencing judge had formed the view that G was not a predatory offender but that the offence was “teenage experimentation.” 

 

 

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

 

Scotland Case Summary
 
Paul Harvey
Paul Harvey

Paul Harvery looks at High Court of Judiciary appeal from Scotland on diminished responsibility.


By Paul Harvey

 

 

Scotland: Appeal Court, High Court of Justiciary

 

Diminished responsibility — test for diminished responsibility when accused has both a mental disorder and has taken alcohol/drugs

Balance of probabilities — whether it was an error to direct the jury in percentage terms.

 

Nicholas Rogers v Her Majesty’s Advocate

 

[2019] HCJAC 27

 

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac27.pdf?sfvrsn=0

 

NR was convicted of murder by stabbing. He suffered from Emotionally Unstable Personality Disorder/Borderline Personality Disorder but had also been drinking and had taken drugs at the time of the offence.  The issue at trial was whether the defence of diminished responsibility was made out.

 

The trial judge directed the jury that, in considering that issue, they had to consider whether the appellant’s personality disorder or the alcohol//drugs was the substantial cause of his actions. He further directed the jury that the test of whether diminished responsibility had been established was on the balance of probabilities. Having said that this was something that was more probable than not, he added that, “put it into percentage terms, something is more likely than not if it’s 51% playing 49%”.

 

NR appealed on the ground that these were material misdirections. For the first, the accused did not have to show that the mental disorder was the substantial cause of his actions, only that it remained a substantial cause.  For the second, as Toulson LJ (as he then was) explained in Milton Keynes Borough Council v Nulty [2013] 1 WLR 1183 at para [37], it was wrong and “pseudo-mathematical” to seek to define balance of probabilities in percentage terms, and judges should not attempt to elaborate on the clear and ordinary meaning of “more probable than not”.

 

The Court dismissed the appeal on the facts but found:

  1. The judge erred in his direction on diminished responsibility. It should not have been a question of the two possible causes (mental disorder or alcohol/drugs) being alternatives. The trial judge’s use of “the” rather than “a” when referring to substantial cause created the error. All that the jury had to be told in relation to the possible combination of causes was that they could find diminished responsibility if they were satisfied on the balance of probabilities that, despite the drink, the accused’s mental abnormality substantially impaired his ability to determine or control his conduct (Lord Hutton’s model direction in R v Dietschmann [2003] 1 AC 1209). The proper approach was to discount the effect of the drink and drugs, both on their own or by reason of their combination with the appellant’s underlying mental disorder. The question in practical terms was: if the appellant had not ingested the alcohol/drugs which he did, would he have acted as he did and delivered the fatal blow as a consequence of his mental abnormality?
  2. It could be dangerous to attempt to reduce the exercise of determining whether something is more likely than not to have happened to one of combined arithmetical possibilities. Nevertheless, using it in this case would not have led the jury to misunderstand the meaning of probabilities. It was not a substantially erroneous description.

 

Commentary: 

  1. This is a Scottish case, but since the law of England and Wales on diminished responsibility originated in, and borrowed heavily from, Scots law (see R v Golds [2016] UKSC 61), this case may be of broader significance to the development of diminished responsibility in England and Wales. The Appeal Court’s judgment clarifies that juries need only be directed that they can find the defence of diminished responsibility established if they are satisfied that, despite the drink, the accused’s mental abnormality substantially impaired his ability to determine or control his conduct. This should be a straightforward direction to give and, to that extent, provides welcome clarification. But it may prove difficult for juries to apply in cases where, as here, a psychiatrist giving expert evidence finds it difficult after the event to separate a psychiatric cause for someone’s actions from other possible causes, and thus decline to speculate on what would have happened had the person not taken drink/drugs.  
  2. The second ground of appeal is perhaps an indication that, beyond saying that balance of probabilities means more likely than not, any further attempt to define it is highly undesirable and that any attempt to introduce mathematical terminology will risk the kind of criticisms the late Lord Toulson set out a length in  Milton Keynes Borough Council v Nulty.

 

If you would like to speak to Paul Harvey about this case, please email here.

Appeals against Conviction; England and Wales

Farrhat Arshad and Paul Taylor QC look at the latest CACD conviction appeals dealing with criticism of trial counsel, victims of trafficking, fresh evidence, and inconsistent verdicts.


By Farrhat Arshad

 

Victims of trafficking; retrospective challenges to decisions to prosecute; fresh evidence

 

R v O and N

 

[2019] EWCA Crim 752

 

Both N and O sought to retrospectively challenge the respective decisions to prosecute them of offences.  Both relied upon fresh evidence relating to their status as Victims of Trafficking (“VOT”), findings made after their prosecution, conviction and sentence.

 

N was charged in 2014 with an offence of cultivation of cannabis.  He raised at the outset the fact that he had been trafficked into the UK and was forced to act as a gardener of the cannabis.  At an early stage, the Prosecution made enquiries with the police and the police conceded that it was likely N had been trafficked but were skeptical about elements of his account and whether he was acting under compulsion.  Prior to the issue being conclusively resolved, N pleaded guilty to the offence and was sentenced to imprisonment.  In 2016, following the refusal of his asylum claim, N asserted that he was a victim of trafficking.  He was referred to the National Referral Mechanism (“NRM”).  The Home Office acting as the Competent Authority concluded that N had been a victim of trafficking. 

 

N relied on the fresh evidence in his own witness statements, the decisions of the Competent Authority, in the Home Office's file in relation to his proposed deportation and subsequent claim for asylum and the files of his former solicitors and CPS in the proceedings below.

 

In July 2014, O was convicted after trial of two offences of controlling prostitution for gain.  She was sentenced to five years’ imprisonment.  In 2015 the Poppy Project referred her to the NRM.  In December 2015, the Home Office acting as the Competent Authority concluded that O had been a victim of trafficking.  O sought to rely on the fresh evidence in her own witness statements, the NRM referral form, and the decisions of the Competent Authority.

 

CACD: the legal principles that applied to both cases were, “well-travelled territory” and the questions for the Court were whether: (i) there was credible evidence that the applicant fell within the definition of trafficking in the Palermo protocol and the Directive; (ii) there was a nexus between the crime committed and the trafficking; and (iii) it was in the public interest to prosecute either N or O.

 

In the case of N, the CACD had no hesitation in finding that he was a VOT, that there was a nexus between that and his offending and that in all the circumstances the public interest did not require prosecution.  As such, the conviction was unsafe and his appeal would be allowed. 

 

By contrast, in the case of O, whilst the Court would give O the benefit of the doubt as to whether she was a VOT, this status did not establish nexus or compulsion at the relevant time as there was both a significant time interval between her own arrival, and significant geographical distance of her alleged 'operator', at the time of these offences.  The public interest did require prosecution in her case.  Nor did her subsequent status as a VOT afford her mitigation for the purposes of sentencing as there was no nexus between her status as a VOT and the offending.  Her appeals were dismissed.

 

 

Incompetence of counsel; safety test; tactical decisions

 

R v Scott Goldfinch

 

[2019] EWCA Crim 878

 

G was convicted of one offence of indecent assault.  The offence had been committed in 1996 when G was aged 16 and the victim was aged four years.  G was charged in 2015. G argued that his trial counsel was incompetent in that he had (i) conceded that V had been abused when he should not have; (ii) had failed to cross-examine V as to inconsistencies in the account given when he was aged four; (iii) had failed to cross-examine V in respect of details in the account given by V when aged four.

 

The CACD stated that the correct approach to appeals based upon the suggestion of incompetence of trial counsel was stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at [15] that incompetence of trial counsel did not in itself form a ground of appeal; there was a single test of safety and in order to establish lack of safety in an incompetence case the appellant had to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.  In the present case trial counsel’s conduct of the case could not be described as incompetent.  He had made justifiable tactical decisions.  It was the responsibility of the advocate to make forensic decisions and to devise strategy. Counsel was not merely the defendant's mouthpiece - R v Farooqi [2014] 1 Cr. App. R. 8.  The conviction was not unsafe.

 

 

By Paul Taylor QC

 

R v Lewis

 

[2019] EWCA Crim 710

 

L was convicted of one count of anal rape. The jury were unable to reach a verdict on Counts 2 and 3 (vaginal and oral rape). His application for permission to appeal against conviction was referred by the single judge to the full court. The CACD rejected the application.

 

The main grounds of appeal related to the following:

 

i) The jury's verdicts were so inconsistent as to be "logically inexplicable";

ii) The Recorder wrongly referred to his own "Steps to verdict" document as being "a guide" rather than something that the jury was forced to follow.

 

Inconsistent Verdicts: The CACD stated that L “failed to discharge the heavy burden of demonstrating that his conviction on the count of anal rape was "logically inexplicable" when contrasted with the jury's failure to reach a verdict on the counts of oral and vaginal rape”. Because, inter alia:

  1. The clear difference in the complainant’s accounts about the anal sex, and the oral and vaginal sex.
  2. The evidence in support of the different counts was based on the evidence of the complainant and two others.
  3. The jury were directed to consider each count separately.

The Steps to Verdict: CACD stated that “in contrast to the Recorder's legal directions, which are of course mandatory, the jury was not obliged to use the Steps document. Such documents are routinely provided to assist the jury. They are not obliged to use them and there is no authority which makes them mandatory.”

 

 

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

 

If you would like to speak to Paul Taylor QC about this case, please email here.

Northern Ireland Case Summary

Paul Taylor QC looks at NICA DPP reference involving historic child sex offences and an elderly offender.


By Paul Taylor QC

 

SENTENCE APPEALS

 

DPP reference – unduly lenient sentence – campaign of sexual abuse

 

Vincent Lewis

 

NICA: 31st May 2019

 

VL (now aged 91) had been sentenced to a total term of 10 years and six months comprising nine years and six months in custody and one year on probation in respect of multiple offences of indecent assault, buggery and attempted buggery committed on three children over a period of 10 years. The DPP sought leave to refer the sentences to the Court of Appeal on the grounds that they were each unduly lenient.

 

VL was a monk. The first victim (“V1”) was 10 or 11 when VL began a campaign of indecent assault and buggery on him. Medical evidence showed the enduring effects on the victim, including PTSD.

 

VL left the monastery and married. He then abused V2, aged 9 /10 for around 4 years.

 

V3 was the brother of V2. He was subject to one incident when he was approximately 13 years old. VL fondled at his genital area and the boy fended him off. VL sought to encourage the boy to engage in sexual activity but he refused.

 

At interview VL denied all of the offences. When arraigned he pleaded guilty to the counts of indecent assault but not guilty to those of buggery. He was later rearraigned and pleaded guilty to almost all of the buggery counts. The remainder were left on the books.

 

The pre-sentence report indicates that the offender accepted that he sexually abused V1 but denied the buggery offences claiming that there was no penetration. He denied the offence in relation to the brother of V2. In relation to V2 he said that the victim came to his house, and was keen for “the bit of sex for the money”. He believed the sexual behaviour they engaged in was by way of mutual agreement. The report indicated that the offender held justification and offence supporting beliefs in relation to children consenting to sexual behaviour and a lack of awareness or appreciation of the impact of his offences on the victims. 

 

The trial judge examined the aggravating factors in this case:

 

• the offender was placed in a position of trust by the parents;

• in the case of two of the victims their father had gone out of his way to assist the offender to get settled in the community after he left the Abbey;

• a significant degree of planning went into the offender’s attempts to attack these boys;

• there were three victims who were all under 14 years of age;

• the offending stretched over a period of about 10 years;

• there was frequent ejaculation;

• the offender took steps to prevent V1 in particular from reporting the matter telling him that his parents knew what was happening and approved of it;

• on occasions money and alcohol was used to facilitate the attack;

• the presentence report indicated a stark lack of victim empathy; and

• the effect on the victims was horrendous.

The trial judge noted the established principle that the court is always entitled to show a limited degree of mercy to an offender of advanced years because of the impact that a sentence of imprisonment can have on such a person.

The trial judge further noted that the offender did eventually plead guilty to the offences and was entitled to credit for that.

 

 

NICA:

The Court indicated that a starting point in excess of 20 years was appropriate in this case before looking at the mitigating factors. It accepted that the three-year reduction for age and the 25% discount for the plea were in the circumstances appropriate:

 

“Even if one took a very generous starting point of 20 years and made allowance for age, delay and discount for the plea the resulting sentence would still be one of 12 years. Accordingly we are satisfied that the sentence imposed was unduly lenient and we substitute for the commensurate sentence of 10 years 6 months a sentence of 12 years.”

 

The Court added that the provision of a custody probation order is designed to ensure that the public are protected and offending reduced because of the rehabilitative effect of the probation period. It said it was clear from the pre-sentence report that no rehabilitative programme directed to his offending was either required or likely to be put in place. The Court considered that there was no basis for a custody probation order in this case in light of the conclusion of the pre-sentence report that the offender’s age and withdrawal from community life had created external controls to manage his issues without the requirement for further intervention.

 

The Court concluded that the sentences were unduly lenient. It increased the buggery sentences to concurrent custodial sentences in each case of 12 years and substituted imprisonment for the commensurate term for the custody probation orders in the other cases.

 

 

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Caribbean Case Summary

Paul Taylor QC comments on the Caribbean Court of Justice decision on life sentences, minimum terms and appellate courts considering matters not before the sentencing judge.


By Paul Taylor QC

 

Caribbean Court of Justice

On Appeal from The Court of Appeal of Barbados 

CCJ Appeal No. BBCR2017/004 BB Criminal Appeal Nos. 6 of 2013 

 

Alleyne v The Queen

 

[2019] CCJ 06 (AJ)S

 

Sections 35 to 41 Penal System Reform Act of Barbados – Section 14 Criminal Appeal Act of Barbados – sentencing – principles of sentencing – rehabilitation of offender – the meaning of ‘life imprisonment’ – discount for early guilty plea – minimum period to be served

 

In September 2010, A, and another man, robbed a store. He lobbed two Molotov cocktails into the store which caused a serious fire. Screams were heard coming from the back of the building where six females had concealed themselves to escape the robbery. The six women died of asphyxia resulting from smoke inhalation.

 

A admitted his participation in the robbery and gave a self-written statement to the Police. He was charged with six counts of murder. He pleaded not guilty to murder but guilty to six counts of manslaughter which was accepted by the Director of Public Prosecution. 

 

The judge found that the following were aggravating factors: the intention to rob armed with two Molotov cocktails; the well-executed plan before and after the robbery; the reckless and callous manner in which the robbery was executed; and A’s willingness to readily participate in such an egregious act which resulted in six young women losing their lives.

 

The judge found that the mitigating factors were A’s early guilty plea; his clean record; his cooperation with the police; and his young age. However, she held that these could not neutralized the gravity of the offence.

 

After referencing section 36 of the Penal System Reform Act which required that the length of the sentence be commensurate with the gravity of the offence, she sentenced A to six concurrent life sentences. As a condition of his sentence, she ruled that he be included in treatment programmes that would address his cognitive deficiencies identified in the Psychological Report. 

 

The Court of Appeal affirmed the six life sentences and Mr Alleyne then appealed to the CCJ

 

CCJ:

The CCJ considered whether the imposition of a life sentence necessarily meant incarceration for the natural life of the prisoner.

 

It came to the attention of the Court that A had been involved in the firebombing of another building in 2010, less than one month before the current incident. A had pleaded guilty to aggravated burglary and arson in relation to that earlier incident. The Court considered that it could take this information into account in the present appeal based upon section 37 of the Penal System Reform Act which empowers the appellate court, to “take into account any information about the offender which is before the court.” [even if it was not available to the sentencing court.]

 

The CCJ:

  1. Dismissed the suggestion that A’s early guilty plea automatically rendered it impossible for him to be given a life sentence. A discount for an early guilty plea is appropriate and warranted where a sentence for a determinate number of years is contemplated and appropriate. However, the situation is entirely different where an indeterminate sentence such as the sentence of death or of life imprisonment is properly imposed. A discount for an early guilty plea is wholly incompatible with such sentences.
  2. Was satisfied that the trial judge had considered all the relevant aggravating and mitigating factors as well as the statutory provisions in imposing the life sentences.
  3. Was entitled to take account of the earlier incident in determining the appropriateness of the sentence imposed, the Court held that the imposition of the life sentences was justifiable. The actions of the Appellant, in not one but two incidents of a similar nature, revealed a callous and/or reckless disregard for human life that must attract stern condemnation from the judiciary.
  4. In pronouncing a life sentence, it was the duty of the sentencing judge to recommend a minimum period of incarceration to be served for purposes of punishment and deterrence before there could be any possibility of release. The Court noted that the review process provided for in Rule 42 of the Prison Rules, allowing for a review after serving a period of four years, presented the appearance of conflict with the judicial power and responsibility to recommend a minimum period of incarceration and recommended that this situation should be quickly addressed by the Legislature by suitable amendments to the Prison Rules.
  5. Concluded that in order to secure the objectives of punishment and deterrence evident in the sentencing remarks of the trial judge, whilst not ruling out the possibility of rehabilitation, a minimum period of incarceration for twenty-five years was necessary.

 

The CCJ:

(1) Dismissed the appeal; (2) Upheld the six concurrent life sentences imposed on the Appellant; (3) Recommended that the Appellant should not be eligible for release before serving a minimum period of twenty-five years’ incarceration; and  (4) Ordered that this minimum period of incarceration includes the time spent by the Appellant on remand. 

 

Commentary: For the English equivalent of section 37 of the Penal System Reform Act see section 11(3) Criminal Appeals Act 1968, and useful case law regarding its applicability such as Beatty [2006] EWCA Crim 2359.

 

 

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