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URGENT NOTICE re: Issue 30 of our Criminal Appeals Bulletin

Further to the Criminal Appeals Bulletin sent to you on 9th May 2019, it has been brought to our attention that one of the judgments referred to in the  Bulletin, R v Hajdarmat [2019] EWCA Crim 303 (see the article headed ‘Previous acquittals – what should the jury know?’), is presently subject to a reporting restriction and should not have been referred to in the Bulletin. The article has been removed from the online version of the Bulletin.

 

As a recipient of the Bulletin you are in possession of the original version. We would be very grateful if you would take the following steps

  1. Do not further circulate the initial mailing of Issue 30 of the Bulletin.
  2. Delete the Bulletin immediately (you may access the edited version from the DSC website here)
  3. If you have already forwarded the Bulletin to another other person(s), we would be grateful if you would request they also do not circulate and that it be deleted it by them.

 

We apologise for any inconvenience caused and thank you for your understanding and co-operation.

 

With best wishes,

 

Doughty Street Chambers


Further to the Criminal Appeals Bulletin sent to you on 9th May 2019, it has been brought to our attention that one of the judgments referred to in the  Bulletin, R v Hajdarmat [2019] EWCA Crim 303 (see the article headed ‘Previous acquittals – what should the jury know?’), is presently subject to a reporting restriction and should not have been referred to in the Bulletin. The article has been removed from the online version of the Bulletin.

 

As a recipient of the Bulletin you are in possession of the original version. We would be very grateful if you would take the following steps

  1. Do not further circulate the initial mailing of Issue 30 of the Bulletin.
  2. Delete the Bulletin immediately (you may access the edited version from the DSC website here)
  3. If you have already forwarded the Bulletin to another other person(s), we would be grateful if you would request they also do not circulate and that it be deleted it by them.

 

We apologise for any inconvenience caused and thank you for your understanding and co-operation.

 

With best wishes,

 

Doughty Street Chambers

Feature Articles
Financial Crime Appeals
 
Richard Fisher QC
Richard Fisher QC

Richard Fisher QC and Farrhat Arshad review the latest in Financial Crime Appeals.


By Richard Fisher QC

 

R v S

 

[2019] EWCA Crim 569

INTRODUCTION

The Court of Appeal considered an appeal against an order made under s.22(4)(a) of the Proceeds of Crime Act 2002 (‘POCA 2002’) where the Recorder of the Crown Court had varied a confiscation order in S’s case from £8,550 to £108,642.81.

The unusual facts in this case required the Recorder and the appellate judges to consider what was just in the circumstances. 

 

 

THE FACTS

On 3 January 2006 at the Crown Court, the appellant was convicted on three counts charging possessing controlled drugs of class A, B and C with intent to supply. He was sentenced to a term of imprisonment of 4 years and 6 months.

 

Confiscation proceedings were pursued and on 11 January 2007, the judge found the benefit figure to be £189,621.36 and the available amount to be £18,050.

 

On 15 November 2007, the available amount was varied on an application by S under s.23 of POCA 2002 to £8,550, comprising £6,395 in cash seized on his arrest and a further amount of £2,155. The unsatisfied benefit figure was thus £181,071.36 (£189,621.36 less £8,550).

 

Following his release from prison, the appellant began in business and, in June 2014 acquired a property. It was this acquisition that alerted the authorities, in December 2015, to the possibility of an application to the Crown Court under s.22 of POCA 2002 requesting the Court to reconsider the available amount.

 

The CPS obtained a restraint order on the property in April 2016 and began the s.22 proceedings in June 2016. There was a delay between June 2016 and the eventual hearings before the Recorder on 16 February and 29 March 2018. On 2 April 2018 the Recorder set out the reasons for his decision.

 

THE APPEAL

Their Lordships considered three points made on behalf of S. Firstly, that the Recorder should have refused to make any order under s.22 of POCA 2002, on the grounds that it was contrary to public policy to pursue the application against S when he had given considerable assistance to the police since his release from prison. In addition to the matters referred to by the Recorder, he had assisted the police enquiries into a corrupt police officer. Alternatively, S should have given very much more credit than 40% to reflect that assistance. Secondly, it was submitted that the Recorder should have refused to have made any order in the light of the delay, or alternatively should have applied an additional and further discount to take into account delay. Thirdly, it was argued that insufficient weight was given to the principle of rehabilitation when determining the level of discount so as to reflect the lawful life that the appellant had been leading since the original order. It was submitted that taking all of these factors into account the discount should have been in the order of 75-80%.

 

The Recorder had been referred to the relevant authorities: In re Peacock [2012] UKSC 5; Padda [2014] 2 Cr App R (S) 149; Leon John [2014] 2 Cr App R (S) 73 and Mundy [2018] EWCA 105 (Crim). Their Lordships noted that the Recorder had directed himself that a property which was legitimately acquired after the making of a confiscation order was, in principle, within the reach of the POCA process and that in deciding whether to vary the original confiscation order by recalculating the sum which was available and substituting a different sum, the Court should apply the provisions of s.22:

 

(4) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as-

    1. it believes is just, but
    2. does not exceed the amount found as the defendant’s benefit from the conduct concerned.

 

Their Lordships were not critical of the Recorder in finding that the 11 years that had elapsed since the making of the original confiscation order was of such length as to prevent a just order being made under s.22. There were cases where lengthy periods had elapsed prior to such an application including Padda, 6 years, Peacock, 10 years and Mundy, 9 years.

 

It was of note in this case that S had acquired assets though payments for operating as a Covert Human Intelligence Source between 2007 and 2011. S had used those assets to establish his business through which he prospered and, as a result, he was then able to acquire the property at the end of 2014. It was S’s interest in that property that founded the prosecutor’s application to increase the available amount.

 

The Recorder was of the view that it would be just to make an order in S’s case because the legislative policy of POCA 2002 to maximise the proceeds of crime outweighed the value of rehabilitating offenders through legitimately acquiring assets.  The Recorder found that S had “sailed very close to the wind” in his business dealings but decided that the length of time that had elapsed did not prevent an order from being made. In addition, the assistance S gave as a Covert Human Intelligence Source did not preclude an order being made under s.22 but did merit a discount being made in S’s case as such an approach would be just in the context of s.22(4)(a) of POCA 2002. The Recorder assessed this discount at 40%.

Their Lordships were of the view that the Recorder’s approach to this case could not be faulted and they dismissed the appeal.

 

COMMENT

The facts of the case are unusual and it is difficult to assess the likelihood of such a set of circumstances arising in the future in the context of an application under s.22 of POCA 2002. However, their Lordships must have thought that there will be other cases because they made six observations which will undoubtedly be followed in other such cases (see below).

 

Some will view the application of s.22 in this case as going too far, it is more than simply arguable that no order should have been made in S’s case due to the length of time that had elapsed and/or because of the source of the legitimately acquired assets in the years after the confiscation order had been made and/or because of the importance of encouraging offenders to rehabilitate, after all what is the point of working legitimately and rehabilitating if all of that will be taken away under s.22 of POCA 2002? However, it is perhaps not that surprising that their Lordships disagreed and dismissed the appeal.

 

The six observations at paragraphs 28 to 34 of the judgment should be considered in any s.22 case despite the fact that several of them are really fact specific. The first of those observations could provide some comfort to those having to respond to a s.22 application because it refers to the Crown Court having a “broad discretion” and that the provisions of subsection (4) use the word “may” and the phrase “believes to be just.” However, those references go both ways of course and may provide encouragement to prosecutors that whatever the circumstances of the post acquired assets are, it is just to pursue an application under s.22 of POCA 2002 if the offender has more now than they had before.

 

The observations concluded with the following [at paragraph 35], a reminder that the Court of Appeal will rarely interfere with the decision of the Crown Court on a s.22 application:

 

The weight to be attached to such matters as delay in bringing an application and assistance to the prosecution is for the Crown Court; and this Court will not interfere with such findings unless a decision either involves an error of law or principle; or falls outside the judge’s discretion, in that no Court properly directing itself in accordance with the law could have come to such a conclusion; or is fundamentally lacking in any underlying reasoning.

 

It is difficult to know what the likelihood is of similar cases presenting the opportunity for the Crown to pursue an application under s.22, but if there are other cases, their Lordships’ observations will undoubtedly be applied. One only has to look at the other cases referred to in the judgement (and above) to appreciate that any number of scenarios may present themselves where an offender acquires assets after a confiscation order is made and finds s.22 looming over them. There are of course many who would say that that in itself is entirely just.

 

 

 

By Farrhat Arshad

 

Sentencing Council’s Definitive Guideline on Fraud, Bribery and Money Laundering – section 327 offences – “Harm B” and its effect on categorization

 

R v Evans, Jackson and Johnson

 

[2019] EWCA Crim 606

 

The three appellants had been sentenced to immediate sentences of imprisonment for offences of transferring cash arising from the sale of drugs in a conspiracy.  It had been argued on appeal that consideration of “Harm B”, that is the level of harm associated with the underlying offence, should have meant a sideways move into another category of culpability but the Court held that it was inevitable that the level of harm associated with the underlying offence warranted an upward adjustment of the starting point to the next category range and thus the judge was amply entitled to take the view that immediate custodial sentences were warranted.

 

 

To discuss these cases further with Richard Fisher QC or Farrhat Arshad please email here for Richard or here for Farrhat.

Hong Kong Case Summaries
 
Richard Thomas
Richard Thomas

Richard Thomas explores Hong Kong sentencing appeals involving credit card fraud, totality and loss of time directions.


By Richard Thomas

 

Court of Appeal

Sentencing – Credit Card Fraud

 

HKSAR v. FUNG WAI YIP

 

[2019] HKCA 418; CACC 231/2018 (3rd April 2019)

 

The defendant appeal against the sentence of 4 years and 4 months imprisonment following a guilty plea for what was described as a very serious case of credit card fraud involving 32 counts. The Court upheld the starting point of six years and affirmed the authority to which the sentencing judge referred:

 

9. The judge referred to R v Chan Sui-to and Another [1996] 2 HKCLR 128, where it was held that sentencing credit card fraud cases necessitated the consideration of various factors, including the size and planning of the operation, whether an international element was present and the role that the defendant played. It was further held that defendants having played an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning or equipment, and without an international dimension, should expect to receive a sentence of 5 to 6 years’ imprisonment after trial. It was also noted that sentences might be adjusted in accordance with any aggravating or mitigating factors.

 

 

Sentencing – Totality

 

HKSAR v. CHONG HUNG SHEK

 

[2019] HKCA 451; CACC 168/2018 (16th April 2019)

 

The defendant was employed as a conveyancing clerk and sentenced for three counts of fraud arising from the taking of money from the accounts of clients of the firm who employed him. The sentencing judge took a ‘global approach’ to sentence. The Court of Appeal once again explained that whilst this approach was understandable, it was to be deprecated and the correct way to give effect to the entire criminality was instead through the principle of totality and that individual sentences needed to be passed:

 

49. In HKSAR v Wong Chor Wo[15] this issue was before the Full Court of the Court of Appeal presided over by Ma CJHC, as Ma CJ then was. In giving the judgment of the court Saunders J said:

 

A global sentence is wrong in principle:

 

5. It is correct that a global sentence was imposed. The Judge said so in terms. That was plainly wrong in principle. Mr Alex Lee sensibly accepted that the imposition of a global sentence on multiple charges was wrong in principle.

 

6. The law is set out in HKSAR v Chan Nai Keung & Ors, unreported, 19 February 2008, CACC 284/2006. The correct sentence should always be imposed for each individual offence where there are a multiplicity of offences before the court, and the question of totality then considered. The appropriate individual sentences are then imposed, either concurrently, or concurrently and wholly or partially consecutively, in order to properly reflect the totality of the offending.”

 

50. The judge cannot be criticized for wanting to take a global view of the applicant’s culpability. However, a global view of culpability is different from a global approach to sentence. A global view of culpability is an essential tool when sentencing for multiple offences. It comes into play after the sentencing judge has completed an individualised sentencing process and it is used to guide the judge to an appropriate final sentence in conjunction with the application of the totality principle. The tool by which the final sentence is achieved is the court’s power, in respect of multiple charges, to order that the sentence imposed on one charge be served consecutively or partially consecutively to the sentence imposed on another charge.

 

 

Sentencing – Out of Time – Loss of Time

 

HKSAR v. CHAN CHI MAN

 

[2019] HKCA 392; CACC 262/2018 (2nd April 2019)

 

This appeal in a driving case is only notable for two matters unconnected to the substantive arguments on appeal. Firstly, the Court refused to grant an extension of time having applied the test in HKSAR v Medina and another CACC 296/2007:

 

“In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether; by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant. . . . ”

 

Secondly, the Court the made clear that the threat of a loss of time direction under section 83W(1) is not an idle threat in an appeal that is wholly without merit especially where:

 

In the Single Judge judgment of Zervos JA, the applicant was informed of the court’s power to order loss of time. He was further reminded of it in the Form XII (Notice of Order of the Single Judge) and the Form XIII (Notice of Renewal of Application after Refusal by the Single Judge).

 

The Court ordered loss of time of 8 weeks (which amounted to a not insignificant proportion of the time the appellant would spend in custody given the sentence originally imposed was 20 months).

 

[Editor note: For an analysis of the English courts’ approach to “Loss of Time Directions” see: case commentary on R v Gray and others  (Case comment) [2015] Crim LR 352: here.

 

 

If you would like to discuss these cases with Richard Thomas, please email here.

Appeals Against Sentence; England and Wales
 
Farrhat Arshad
Farrhat Arshad

Farrhat Arshad looks at the latest CACD sentencing appeals discussing hospital orders v IPP; Fresh evidence re mental disorder; AG reference; mitigation when fixing minimum term for murder.


By Farrhat Arshad

 

 

Hospital Order pursuant to section 37 of the MHA 1983 /IPP; Fresh evidence re mental disorder; Application of Vowles and Edwards;

 

R v Rendell

 

In 2012 R was sentenced to an IPP for one offence of wounding with intent.  He had stabbed a man unknown to him in the neck with a broken bottle. Whilst a PSR and a psychological report had been available at sentence, it was not suggested at the time that R had a mental illness within s. 37 MHA 1983. However, in 2015 he was transferred to Hospital.  His responsible clinician, a consultant psychiatrist, was of the opinion that the appellant suffered from an emotionally unstable personality disorder and had done so throughout his adult life; his mental disorder made it appropriate for him to be detained in hospital for medical treatment; and medical treatment was available for him. A second consultant psychiatrist agreed with these opinions. 

 

CACD considered the reports and the oral evidence of the responsible clinician. The statutory criteria in  de bene esse and having done so were satisfied that the statutory criteria for the admission of the evidence set out in section 23(2) Criminal Appeal Act 1968 were met and it was in the interests of justice to receive the fresh evidence. The Court then applied the steps set out in Vowles, considered the regime post release and was satisfied that the appropriate sentence was a Hospital order under s. 37 and a restriction order under s. 41 of the Mental Health Act 1983.

 

 

 

Robbery with axe; whether 3 years after plea “unduly lenient”;

 

Attorney-general’s Reference (R v Wilkinson)

 

[2019] EWCA Crim 723

 

W had been sentenced to three years’ imprisonment following a guilty plea to robbery.  He had been in possession of an axe when he, together with another, had entered a women’s changing room at a sports club, where the takings of a fireworks’ display were being counted..  W had 72 previous offences, 13 of which were for violence and 23 for dishonesty.   CACD: Whilst all parties were agreed that the correct category in the guidelines was category 2A, giving a range of four to eight years and a starting-point of five years, the judge had been wrong to reduce the starting-point to four years before applying the 25% reduction for the guilty plea. Rather, the starting-point should have been increased to six years to reflect the aggravating features of the offender’s poor record of previous offences, the targeting of large sums of cash whilst they were being counted, that the offending occurred in a female changing room, that it was a group offence and the robbers made efforts to conceal their identities and the offence was committed on licence.  As such the correct sentence was 4 ½ years’ imprisonment and the 3 year sentence was unduly lenient.

 

 

3 counts of wounding with intent to cause grievous bodily harm; street stabbing; 18 years’ imprisonment upheld on offenders for joint enterprise offences

 

R v Mampuya and Gomes

 

[2019] EWCA Crim 619

 

The CACD was “doubtful” that attacks in two of the three offences were sustained even where the victims were stabbed repeatedly (three and five times) and therefore the offence was not one of greater harm (considering also the injury).  Nevertheless, the total sentence of 18 years’ imprisonment for three offences of wounding with intent could not be described as manifestly excessive. 

 

cf Khalid and Bowen below re what constitutes a “sustained attack”.

 

 

Mitigation in murder offences – statutory mitigation and mitigation personal to the offender

 

R v Khalid and Bowen

 

[2019] EWCA Crim 701

 

CACD considered whether the sentencing judge had given sufficient regard to the mitigation afforded by the lack of an intention to kill and the lack of premeditation.

 

The Court was of the view that those factors are likely to be of less significance where someone sets out to use violence, although not intending to kill and a death occurs, than where someone uses violence without setting out to do so and a death occurs.

 

 

ss 225/226 Criminal Justice Act 2003 (as originally enacted); whether age of offender when offence committed or when convicted determinative of whether s. 225 or 226 applied;

 

R v Bennett [2019] EWCA Crim 629

 

B had been sentenced in 2007 to Detention for Public Protection pursuant to Chapter 5 Criminal Justice Act (“CJA”) 2003, as it was originally enacted. The index offence of arson was committed when he was aged 17 but he was sentenced when aged 18.  The main ground of appeal concerned the proper interpretation of ss. 225 and 226 of the CJA 2003 and whether it was the person’s age at the date of the commission of an offence, or the person’s age at the date of their conviction for the offence, which was determinative of whether they were to be dealt with under s. 225 or 226.  B also relied on Article 7 of the ECHR, the principle against retrospectivity, to argue that he should have been sentenced under s. 226.  Had the appellant fallen to be sentenced pursuant to s. 226, it was necessary for the judge to consider whether an extended sentence would have adequately protected the public.  The Prosecution argued that the appellant had to be sentenced under s. 225 as the sections contained express wording that it was the age at the date of conviction that was determinative of which section applied.

 

CACD held that the express wording of ss. 225 and 226 was clear: it was the date of the conviction and not the date of the commission of the offences that was determinative.  Whilst there could be no doubt that the approach to sentencing those who cross a relevant threshold between the date of the commission of an offence and the date of conviction (to limit the extent of any period of custody to that which could have been imposed at the date when the offender committed the offence) represented a well-established sentencing principle, as explained in Ghafoor, which has been consistently applied over the ensuing years, it had also been made clear with equal consistency in those cases that this did not affect the type of sentencing regime which was to be applied to the offender, which was to be determined by the age of the offender at the date of conviction.  As such the judge had no choice but to sentence the appellant under section 225 which required a mandatory DPP once a finding of dangerousness had been made.

 

 

If you would like to speak to Farrhat Arshad about this case, please email here.

New Case Law
Appeals Against Conviction; England and Wales

By Paul Taylor QC

 

 

Consent - demeanour of complainant - Bad character – Propensity – Collusion - delay - fresh evidence.

 

R v Max Clifford (Decd)

 

[2019] EWCA Crim 545

 

This judgement serves as a useful guide to the CACD’s approach to a large number of issues that arise regularly in sex offence appeals.

 

In 2014 C had been convicted of eight counts of indecent assault (some were specimen counts). He had died before his application for leave to appeal against his conviction was considered. The CACD granted permission to his daughter to advance his arguments.

 

The grounds related to:

 

[1] Misdirections or inadequate directions on

(a) The removal of consent/belief in consent

(b) The demeanour of the complainant and its relevance

[2] Bad character and written material handed to the jury for retirement.

[3] Failure to ensure the defence case was given equal and fair consideration during the summing up.

[4] Propensity. There was improper use of voracious ‘sexual appetite’ as evidence from which a jury could conclude a propensity to commit acts of indecent assault, and failure to give appropriate warning regarding morality / immorality.

[5] Improper withdrawal of issue of fact: collusion / independence of complainants.

[6] Inadequate direction as to the effect of delay on the defendant’s ability to counter the allegations

 

Generally: CACD rejected all of the grounds on the broad bases that:

  1. The Judge had properly directed the jury;
  2. The complaints regarding suggested failures could not be sustained because they related to matters that had not been raised or were not in issue at trial.

 

In regard to Consent: C’s defence was that not only were the complainants lying but that nothing remotely sexual occurred or could have done. It was argued that the Judge should still have directed the jury on the possibility that C might have believed a complainant was consenting. CACD rejected this argument: “A judge should only leave to a jury a possible conclusion, that is an alternative approach not advanced by either side, on a proper evidential basis” [Para 21] There was no such basis here.

 

Commentary: As to seeking to continue an appeal following the death of the appellant see section 44A Criminal Appeal Act 1968.

 

 

 

Murder – CCRC reference – Impact of Jogee judgement

 

R v Daley

 

[2019] EWCA Crim 627

 

A further (unsuccessful) attempt to reap the benefits of the Supreme Court decision redefining liability for joint enterprise.

 

CCRC referred D’s conviction for murder to the CACD on the basis of the change of law set out in Jogee [2016] UKSC 8 and the clarification in Johnson [2016] EWCA Crim 1613.

The offences were alleged to have arisen from a dispute between rival groups. D and Thomas were very close friends. The prosecution argued that Thomas had a motive to harm the deceased by way of revenge for earlier incidents.

The deceased was in his car when another car driven by Thomas drew alongside. D was in the front seat passenger. A shot was fired through the open front passenger window of Thomas’ car. The bullet went straight into the side of the deceased’s head. He died the following day.

 

Following the shooting, D disposed of his mobile phones, his clothing/footwear. D telephoned and met up with Thomas, resigned from his job and obtained and partially completed a passport application.

The prosecution case was that the shooting was an execution. D and Thomas were acting together and whoever was the gunman, both men in the car were fully involved in the criminal enterprise to shoot and kill the deceased. D’s defence was that Thomas had offered him a lift and then stopped and shot the deceased. He had no knowledge of the gun or T’s intentions.

The CCRC carried out a detailed analysis of the factual matrix and the inferences that could be drawn from the jury’s verdict. However, the CACD concluded that D “joined a criminal enterprise which encompassed the use of the loaded gun with the requisite intent for murder should the occasion to do so arise.” “We are not satisfied that Daley has shown a strong case that the change in the law would in fact have made a difference to the jury’s verdict.”

 

 

Sexual offences – hearsay – discharging the jury – inadvertent admission of inadmissible evidence

 

R v C

 

[2019] EWCA Crim 623

 

This is an important case on the admission of hearsay evidence of a deceased complainant and the approach that the CACD will take to the failure to discharge a jury at trial, following them hearing inadmissible material.

 

C was convicted of 13 counts of sexual activity with a child. The appeal raised two points:

  1. The application of the hearsay provisions in chapter 2 of Part 11 of the Criminal Justice Act 2003 (‘CJA 2003’)
  2. The circumstances in which a Jury note may give rise to a decision to discharge them from returning verdicts.

 

The charges arose out of allegations of sexual abuse by the appellant against his two step-daughters, G and C when they were young teenagers. These allegations came to light when both girls disclosed what had happened to their mother. They then provided a more detailed account to a specially trained police officer in ABE interviews. After providing her ABE account, G committed suicide. She left a suicide note: “…I can’t do this any more, the stress from the current situation is too much to handle and 24/7 I feel so guilty because of what happened … Make sure that bastard rotts (sic) in hell for what he has done to me and [C] …” The note was adduced at trial as an admission.

 

It was argued that the suicide note amounted to inadmissible hearsay:

  1. Although G was dead and her evidence was potentially admissible as hearsay under s.116(2)(a) CJA 2003, her death was caused by the very person in support of whose case it was sought to give the statement in evidence, and therefore was rendered inadmissible by the operation of s.116(5)(a).
  2. In any event, the ABE evidence did not meet the test for admissibility in s.114 of the CJA 2003 and should be excluded on the proper application of s.78 PACE 1984’.

 

CACD: Both arguments were rejected.

  1. “While, the hearsay provisions of chapter 2 have been described by this Court as ‘labyrinthine’, …and ‘needlessly complicated’, , we are clear in our view that s.116(5) did not apply. [20-28]
  2. In admitting the evidence, the Recorder had “considered both the risk of the unreliability of the evidence and the extent to which it could be tested and assessed…” “In such cases, this Court will only interfere with such an exercise of judgment if it concludes that a decision was reached which was outside the band of legitimate decisions available to the Judge, see for example, Finch [2007] 1 WLR 1645 at [23]. ..It is plain that the Recorder was aware of the charged nature of the note and the likely effect on the Jury of its contents. It was for this reason that he gave a warning to keep ‘cool heads.’ Some judges might have admitted the ABE evidence but excluded the suicide note; but that is not a reason for interfering with the Recorder’s decision following a careful and measured ruling. [36 and 37]

 

Application to discharge the jury

A question from the jury came just before speeches. It asked for details of a text message which had been referred to by witness which stated “We've been here before … broke the family’. Question: Please can you confirm the wording of the text message and explain what was meant by ‘We've been here before and it almost broke the family’. On investigation, it this turned out to be an unrelated previous allegation of sexual assault. An application was made to discharge the jury.

  1. The Recorder offered him the opportunity of reopening the defence case so that the appellant could, if he wished, deal with the issue raised.
  2. The Recorder ruled that there was an overwhelming interest in continuing the trial and he refused to discharge the Jury. Potential prejudice would be dealt with by way of a firm jury direction; and in the particular circumstances of the case it was appropriate to rely on the good sense of the Jury, and to approach the case on the basis that they would follow any direction that they had been given and would be given.

 

The CACD reviewed the authorities in this area: [64]:

 

“Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstance of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed…”

 

 

s.20 gbh – Botox injections – not medically qualified – whether fraud as to qualifications vitiated consent

 

R v Oxin Melin

 

[2019] EWCA (Crim) 557

 

M was convicted on two counts of causing grievous bodily harm contrary to s.20 Offences against the Person Act 1861, on two different female complainants. The Crown’s case was that M, who is not a doctor or medically qualified, administered what purported to be Botox injections for cosmetic purposes to three women, each on two occasions. Both suffered really serious harm following the second injection. The Crown’s case was that he lied about his medical qualifications and training and that each woman only consented to the treatment because she believed him to be medically qualified.

 

The defence case was that, even if false statements as to medical qualification were made, each complainant agreed to treatment before any such statements or representations were made and, in any event, each individual complainant did not rely on anything that was said by M as a basis for embarking upon or continuing with the treatment.

 

An unsuccessful submission of no case to answer was made at trial. The grounds of appeal repeated the submissions:

  1. A deception as to qualification is insufficient to vitiate consent and does not, as a matter of law, amount to a deception as to identity. Since there was also no evidence of any deception as to the nature, purpose or quality of the act, consent could not have been vitiated.
  2. The evidence taken at its highest was not sufficient for a jury properly directed to convict in this case.

The CACD considered the circumstances and authorities on when consent can be vitiated by fraud. Appeal dismissed.

 

 

Retraction by complainant – approach of the CACD

 

R v SB

 

[2019] EWCA Crim 565

 

Appeal against conviction based on fresh evidence. “In particular, the appellant has relied on a written statement from the complainant (made after conviction and sentence) retracting as false all her previous complaints of sexual abuse which had resulted in the conviction of the appellant at trial.”

 

The complainant, M, is the granddaughter of the appellant. She was described as “a fragile and troubled teenager, who was self-harming.” She saw a counsellor and made allegations against SB. The police were contacted. M repeated these allegations in more detail. There was a lengthy ABE interview. The CACD had the transcript and viewed the video recording.

 

Her ABE interview was played at trial, both in her presence and in court before the jury, as her evidence in chief. In supplemental oral evidence in chief she confirmed that what she had there said was true. She was then cross-examined. Whilst in some places her answers to questions were "I don't remember", her answers overall were to the clear effect that she maintained that what she had alleged had indeed occurred. She denied that she was not telling the truth and said that she was telling the truth.

Following the trial, one ground of appeal was lodged: M had given false evidence at trial. Reliance was placed on an unqualified retraction witness statement of M dated four weeks after sentence. The statement had been taken by a solicitor recommended by one of M's uncles, B. M was accompanied by another uncle, R. B and R are both sons of the appellant.

 

CACD heard evidence from M and others. “The latest evidence adduced on behalf of the appellant simply cannot, we have concluded, be accepted. The retraction is, we have concluded, demonstrably unreliable.”  Appeal dismissed.

 

 

 

By Farrhat Arshad

 

Forced Compulsory Labour (“FCL”) contrary t o s. 71 of Coroners and Justice Act 2009; directions of law on meaning of FCL;

 

R v Rooney and others [2019] EWCA Crim 681

 

The applicants, all members of the same family, had been convicted of a conspiracy to require a person to perform forced or compulsory labour.  It was argued that the judge had erred in directing the jury that deception, abuse of power or exploitation of vulnerability could in themselves amount to a “menace of penalty”. Whilst the CACD agreed with the appellants’ counsel that there would be circumstances of exploitation of workers which did not amount to the offence, e.g. paying very low wages or flouting health and safety requirements, the judge's directions did however make clear that more than that must be proved.

 

CACD held that a direction to a jury on a charge contrary to section 71(1)(b) of the Coroners and Justice Act 2009, must impress upon the jury the need for them to consider all the circumstances of the case in deciding whether all the ingredients of the offences have been proved.  This had been made explicit in s. 1 of the Modern Slavery Act 2015.  The Court was satisfied that this had been made clear to the jury in the present case.

 

 

If you would like to speak to Paul Taylor QC  or Farrhat Arshad about these cases, please email here for Paul or here for Farrhat.