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Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

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

 

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

 

The featured article focuses on a current appeal topic. In this edition Patrick O’Connor QC looks at the CACD’s approach to disputed bad character issues.

 

In this edition we also look at:

  • CACD conviction appeals: SOPO and SHPO; inconsistent verdicts, consent, multiple hearsay “confession” evidence; disclosure of electronic records held by prosecution witnesses; guilty pleas as a result of judicial pressure; Victim of Human Trafficking;
  • CACD sentence appeals: Drugs offences involving test purchase operations;
  • A recent health and safety appeal: Meaning of “Exempt facility”;
  • Caribbean appeals: ECSC decision on USI, corroboration warning, and judicial interventions; Judicial Committee of the Privy Council decision on Antigua money laundering legislation.

 

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.

 

I hope you and your families are keeping safe and well.

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


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

 

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

 

The featured article focuses on a current appeal topic. In this edition Patrick O’Connor QC looks at the CACD’s approach to disputed bad character issues.

 

In this edition we also look at:

  • CACD conviction appeals: SOPO and SHPO; inconsistent verdicts, consent, multiple hearsay “confession” evidence; disclosure of electronic records held by prosecution witnesses; guilty pleas as a result of judicial pressure; Victim of Human Trafficking;
  • CACD sentence appeals: Drugs offences involving test purchase operations;
  • A recent health and safety appeal: Meaning of “Exempt facility”;
  • Caribbean appeals: ECSC decision on USI, corroboration warning, and judicial interventions; Judicial Committee of the Privy Council decision on Antigua money laundering legislation.

 

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.

 

I hope you and your families are keeping safe and well.

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
The Court of Appeal’s approach to disputed ‘bad character’ issues
 
Patrick O'Connor QC
Patrick O'Connor QC

Patrick O'Connor QC looks at the CACD’s approach to disputed bad character issues.


 

By Patrick O’Connor QC

 

Fichardo [2020] EWCA Crim 667 is the latest in a long line of authorities addressing the criteria for leave to cross-examine a witness upon ‘bad character’ material, where the factual foundation is not agreed. Commonly, at the time of the application,  the witness may never have been asked about the material before, or may have already disputed it.

 

The statutory test under S. 100 (1) of the CJA, 2003, is the well-trodden territory of ‘non-defendant’ ‘bad character’ evidence in S. 100 (1) (b): “has substantial probative value in relation to a matter which (i) is a matter in issue in the proceedings and (ii) is of substantial importance in the context of the case as a whole.” Where the witness’ credibility is to be challenged in relation to significant evidence implicating the accused, there should be no difficulty over the relevance of a previous false allegation to “a matter in issue in the proceedings…” and ‘of substantial importance in the context of the case as a whole.”: see R v BT and MH [2002] 1 Cr App R 22 at paras. 25- 27.

 

The  common theme of the case- law is that the material must enable the jury to ‘reach a conclusion’ about its disputed factual basis. In relation to previous false allegations by the witness, the many authorities to this effect include:

 

R v AM [2009] EWCA Crim 618 at paras. 21- 22, Dyson LJ said :  ”The difficulty lies in what constitutes a proper evidential foundation. In our view it is less than a strong foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false. In Garaxo at para. 14, the court considered that there was a proper evidential basis if there was material such that, depending on the answers given by the complainant in cross-examination, the jury could have been satisfied that the previous complaint was untrue..”.

 

R v Brewster [2010] EWCA Crim 1194, at para. 22:  “It seems to us that the trial judge's task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief.”

 

R v Withers [2010] EWCA Crim 3238 at paragraph 5 ‘..does not have to be clear evidence….but… some material capable of leading to the conclusion of falsity.”

 

There is however a very surprising lacuna on a fundamental aspect of this test. What exactly does ‘reach a conclusion’ mean? The approach of the Trial Judge on leave is going to much affected by the standard potentially to be applied by the jury. How are the jury to be directed? What, if any, is the standard of proof on the party challenging the witness? Surprisingly there is no authority on this issue. Routinely therefore, the issue is not argued, and clear directions are not given.

 

The uncertainty has been compounded by the Crown Court Compendium, which has vacillated in its most recent two editions. Two different approaches have been proposed. The current Crown Court Compendium, December, 2019, at page 12/28, does not contain any draft jury direction upon standard of proof about disputed issues, but suggests:

 

"7. Identify the evidence of bad character.

8. Identify the issue/s to which the evidence is potentially relevant.

9. The jury should be directed that it is for them to decide the extent to which, if any, the evidence of bad character of the non- defendant assists them in resolving the potential issue/s.

10. Depending on the nature and extent of the convictions or other evidence of bad character, there may need to be a direction as to the effect on the credibility of the person if he/she was a witness. “

 

The 2016 edition of the Compendium, contained an additional model direction on the standard of proof, with a very low threshold where the material is adduced by the Defence:

 

“8. Where the evidence is disputed, the jury must decide:  

(1) if the evidence is adduced by the prosecution whether they are sure it is true:

(2) If the evidence is adduced by the Defence, whether it may be true:”

 

It seems that this issue has not been addressed in a considered way, and is certainly not being treated consistently in criminal trials. This article is an attempt at clarification and will focus upon alleged previous false allegations, as ‘bad character’ material. However, the same principles should apply to all disputed ‘bad character’ material.

 

It is questionable in principle whether the jury need to be sure of falsity, for the previous allegation to be taken into account. A basic confusion between the ultimate standard of proof of guilt, and the proper approach of a jury to ancillary issues of fact should be avoided. It is perfectly rational for a jury to conclude that a prior allegation was probably false, and thus undermining of the witness’ current credibility. That would be clearly “reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief.” : see Brewster above.

 

The jury may approach any prosecution case, especially those based upon circumstantial evidence, by putting together strands of evidence, and they need not be sure about any individual strand. However, they may conclude putting together those strands that they are satisfied of guilt so that they are sure: see Myers v R [2016] AC 314 at para. 46. If a conviction may be safely reached by such a route, then it would be anomalous for there to be a higher hurdle for the consideration of evidence: or that a jury should be directed to put aside such a possibility, unless they were sure about it.

 

It is contrary to basic principle for a burden of proof to the criminal standard to be put upon the defence: R v Carr- Briant  [1943] KB 607 at 610- 612. It is exceptionally rare for such a burden to be put even upon the prosecution on ancillary evidential issues. Perhaps the best, but rare, example arises in Mushtaq [2005] 1 WLR 1513, where the jury must be directed only to take account of a confession if they are sure that it was ‘voluntary’ in accordance with the usual formulation. That rule arose of necessity out of the strong exclusionary rule in relation to ‘confession’ evidence in S. 76 of PACE, 1984: see Lord Roger at paras. 46- 47.

 

There is no mention of such a burden in S. 100 (1)(3) of the CJA, 2003, Act, which Parliament would have mentioned if intending such a strong filter. S. 109(2) of the Act also imports a very low-level filter. There is no mention of such a burden either in Phipson on Evidence, 19th ed., 2018, paras. 22-23 to 22- 39, or in Cross and Tapper on Evidence, 13th ed., 2018, Chapters VII to VIII:

 

There is one little noticed obiter dictum to the contrary. Judge LCJ in Dizaei [2013] 1 WLR 2257, at para. 37, said ” …. If, in the context under discussion, the judge correctly directs the jury that they must not consider the alleged bad character evidence unless they are sure that it is true….. two trials would be simultaneously in progress before the same jury.” There is no other authority for this proposition. There is no sign that the Court had been assisted by submissions directed to this point. The natural answer to the ‘simultaneous trials’ mischief, is precisely that the jury do not have to be sure to the criminal standard about the falsity of the previous allegation.

 

In Fichardo, the above arguments were advanced upon this question. It was not thought to be consistent with existing authority, to submit that the jury could act upon a mere possibility that the prior allegation was false. That could not sensibly be ‘reaching a conclusion’ and anyway would be unlikely to amount to ‘substantial probative value’ within S. 100(1)(b), CJA, 2003. The 2016 Crown Court Compendium is therefore probably wrong. Even though it did not strictly arise for determination, a favourable provisional view was expressed, at para. 30: “Secondly, in relation to the phrase "the jury could have been satisfied", we have received submissions as to how, at a later stage of the trial, the judge should direct the jury about the burden of proof in relation to bad character evidence of this nature. It is not necessary for us to decide that issue, but we express the provisional view that if the complainant denies having made the suggested false allegation, the jury should be directed that the burden is on the defendant to prove on the balance of probabilities that the allegation was made and was false.

 

It remains to be seen if this helpful obiter dictum will be authoritatively confirmed. For that to happen, the issue must be raised by defence lawyers upon the leave application and before the summing-up. A substantive appellate ruling may then be required, and the current uncertainty removed. The parallel direction, suggested in the 2016 Compendium, but not in the 2019 edition, that the jury should be sure to the criminal standard about disputed prosecution ‘bad character’ evidence, remains wholly unexplored.

 

Postscript. These issues arise frequently, but most controversially in relation to alleged previous ‘false allegations’ by the complainant of a sexual offence.  However, the test should remain the same whether the witness is the complainant or not: whatever the offence charged: and whatever the subject of the alleged previous ‘false allegation’. So, there does not necessarily need to be convergence between the offence tried and the subject matter of any false prior allegation. Credibility can be damaged by a prior significant lie on any issue. The relevance may however be elevated, where there is some similarity between them.

 

The only special feature for a prior sexual allegation may emerge from S. 41(1) of the YJCE Act 1999, with its more restrictive regime. However, provided that the focus remains upon the credibility of the complainant, questioning about a prior false sexual allegation by the complainant does not fall within questioning about ‘any sexual behaviour of the complainant’: see R v BT and MH [2002] 1 Cr App R 22 at paras. 31- 35, which includes a ‘Pepper v Hart’ exercise. The Trial Judge in Fichardo made this basic error, and may not be alone.

 

 

If you'd like to speak to Patrick O'Connor QC about this article, please click here.

Appeals against Conviction; England and Wales
 
Maryam Mir
Maryam Mir

Maryam Mir looks at R v David Michael Garrity, a defendant wrongly convicted of breaching a SHPO.

Farrhat Arshad looks at the latest appeals involving inconsistent verdicts, consent, and multiple hearsay “confession” evidence.

Paul Taylor QC reviews CACD guidance on disclosure of electronic records held by prosecution witnesses.

 


 

Sexual Offences Prevention Order changed to Sexual Harm Prevention Order– wrong order issued by Court – defendant wrongly breached and convicted at trial before mistake realised. Conviction quashed on appeal.

 

R v David Michael Garrity

[2020] EWCA Crim 788

 

By Maryam Mir

 

The appellant (“DG”) was granted leave to appeal out of time in circumstances where he had been wrongly convicted of breaching his Sexual Harm Prevention Order.

 

DG was convicted in 2010 for making and possessing indecent images of children contrary to s.1 of the Protection of Children Act 1978 and s.160 of the Criminal Justice Act 1988. He was sentenced to two years imprisonment and a Sexual Offences Prevention Order of indefinite duration was imposed.

 

In 2017, DG pleaded guilty to, again, making indecent photographs of children and breaching the Sexual Offences Prevention Order, contrary to section 103I(1)(a) of the Sexual Offences Act 2003. He was, again, sentenced to two years imprisonment. The judge replaced the existing Sexual Offences Prevention Order with a Sexual Harm Prevention Order, also of indefinite duration.

 

Unfortunately, when the Sexual Harm Prevention Order was processed and sent out by the Crown Court, it was based upon an earlier draft and purported to prohibit the applicant more extensively from certain acts than the order the judge had made.

 

In 2018, having been released from prison into a hostel accommodation, DG was found to be in possession of an MP3 player and a mobile phone. He had not notified his police offender manager about these and was reported to the police. When questioned in interview he stated that he did not appreciate that the two electronic items were covered by the terms of the Sexual Harm Prevention Order and in any event, he was unaware of the identity of his police offender manager. On the basis of the order sent out by the Crown Court, he was charged with two breaches as a result. The actual order made by the judge in 2017 had not prohibited him from possessing these items. DG went through a trial, where the error was not realised. His defence, the same as he had said in interview, meant the only issue for the jury to determine was whether he had a reasonable excuse. He was duly convicted.

 

Subsequently the mistake was realised and the correct order issued. Emphasising the need for diligence from all parties and quashing the conviction, the court ruled it is the order made in court by the judge which is the lawful order (see R v Watkins [2015] 1 Cr App R (S) 6). The appellant ought not to have been convicted of the two offences of breaching the Sexual Harm Prevention Order.

 

Paragraphs 17-21 of the judgment deal with justifications for orders of an indefinite nature and sentencing. Relevant considerations to the duration of the order being indefinite are the existence of previous relevant convictions and breaches of previous orders.

 

Commentary:

This case highlights the importance for all parties to ensure that the wording of any order made by the judge is properly reflected in the terms provided by the court when issuing the order; it must not be taken for granted that they will be the same. The mistake of the court in issuing the wrong order led to a series of further errors that went unnoticed until after the appellant was wrongfully convicted.

 

Whilst the court in this case stated that the duration of the order was justified, relevant considerations on which submissions can be made about indefinite orders being oppressive include the existence (or lack thereof) of relevant convictions and breaches to previous orders.

 

 

Rape- sexist WhatsApp messages- reasonable belief in consent- inconsistent verdicts;

 

Alex Hepburn v R

[2020] EWCA Crim 820

 

By Farrhat Arshad

 

AH appealed against his conviction on one count of Rape (oral).  He had been acquitted of another count of Rape (vaginal - occurring immediately after the first count) against the same complainant arising out of the same incident. 

 

The appeal was brought on two grounds: (1) That WhatsApp messages showing AH’s sexist attitudes to women and revealing the existence of a game between those on the WhatsApp group to have sex with as many women as possible before a certain date should not have gone before the jury as they were irrelevant and prejudicial.  It was further argued that cross-examination on the messages was unfair and the judge’s warning to the jury not to judge the appellant’s morals and attitudes towards women was inadequate; (2) The acquittal on the vaginal Rape was inconsistent with the conviction of oral rape as consent was the issue in respect of both counts.

 

In upholding the conviction the CACD (Lord Burnett of Maldon, LCJ, Murray J. and Sweeney J.) held that the WhatsApp messages were relevant and were admissible pursuant to both gateway 101(1)(c), important explanatory evidence, and gateway 101(1)(d), important matter in issue.  The CACD disagreed that the judge did not properly consider the prejudice to AH.  The warning the judge had given the jury that AH was on trial for Rape not sexism was adequate.

 

As to Ground (2), the complainant maintained that she was asleep when AH penetrated her mouth with his penis.  On her account she then awoke but believing AH was her boyfriend, JC, continued with the sexual activity which eventually led to count 2. It was argued on AH’s behalf that a jury question as to the reasonableness of genuine belief in consent meant that in going on to consider whether AH’s belief in consent was reasonable, the jury must have concluded the complainant was not asleep when count 1 began. The CACD rejected that analysis stating that there was a danger of over-analysing a jury’s note with a view to discerning a common view amongst its members and “a note may not illuminate with certainty where in a process of reasoning the jury has reached.” In this case it was entirely possible that some, or even all but one, of the members of the jury were sure that the complainant was asleep when the sexual activity started and as such there could not have been any genuine belief in consent as to count 1.  However, even if one started from the premise that the complainant was awake at the outset, on the facts the jury could be sure she did not appreciate that it was the appellant with whom she was having sex at the beginning, and that he had no genuine and reasonable belief that she was consenting, but that things might have changed the longer the sexual contact went on and it was at least possible that by the time vaginal intercourse started the jury's conclusion about the appellant's belief and whether it was reasonable was different. The verdicts were not logically inconsistent. The conviction was safe.

 

Multiple hearsay “confession” evidence- Pros failure to comply with Criminal Procedure Rules-  Historic allegations

 

Alec Smith v R

[2020] EWCA Crim 777

 

By Farrhat Arshad

 

AS appealed against his conviction of indecent assault. The offence was said to have been committed some 48 years before trial.  In her ABE interview the complainant alleged that AS, her then neighbour, had indecently assaulted her when babysitting one  night when she was aged 8.  She stated that as soon as her parents returned home she told them what had happened.  She stated that shortly afterwards her mother told AS’s wife and her mother told the complainant that AS had admitted the touching. The Prosecution had not made an application to adduce this multiple hearsay evidence of a confession. The allegation of a confession was not edited out of the ABE and went before the jury. Further, evidence from the complainant’s sister that their mother had told her that AS had confessed was also allowed to go before the jury. 

 

In quashing the conviction, the CACD (Irwin LJ, Holgate J and Linden J) agreed that the evidence given by the complainant of the “confession” by AS to his wife was multiple hearsay within the definition of s 121 (1) and (2) of the Criminal Justice Act 2003 and was not admissible pursuant to that section as AS’s former wife, to whom the confession was allegedly made, was a competent, compellable and available witness.  The CACD denigrated the Prosecution’s failure to apply the Criminal Procedure Rules and make a written application to adduce the hearsay evidence, commenting that, “The Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem” (at para 50 of the judgment).  The Defence failure to edit the multiple hearsay out of the ABE did not excuse the Prosecution failure – the notice requirement was not waived by Defence silence. 

 

As the evidence had the capacity to act as confirmation of the guilt of the appellant and should not have been admitted the conviction was unsafe and would be quashed.  The CACD further held that as it was 50 years since the alleged offence and as a non-custodial sentence had been passed, it was not in the interests of justice for there to be a re-trial.

 

 

Victim of Human Trafficking; Cannabis Production; s. 45 Modern Slavery Act 2015; Reversal of Competent Authority’s “Conclusive Decision”; Fresh Evidence

 

S v R

[2020] EWCA Crim 765

 

By Farrhat Arshad

 

In 2017 S had pleaded guilty to production of a controlled drug of class B and was sentenced to 12 months’ imprisonment.  He was a “gardener” at a grow house in Preston.  At all material times S had maintained that he had been trafficked into the country and told  he must work at the grow house to pay off his debt.  At the time he entered his guilty plea, the “Competent Authority” had made a “Conclusive Decision” that he was not a victim of human trafficking.  His solicitor had taken the view that this was conclusive on the issue and therefore he had no defence to the criminal charge.  Subsequent to his conviction the applicant challenged the Competent Authority’s decision and made further representations.  In December 2018 the Competent Authority reversed its earlier decision and found that the applicant was the victim of trafficking.  He sought leave to appeal out of time and sought leave to adduce fresh evidence.

 

The CACD (Singh LJ,  Holgate J. and HHJ Lucraft QC, Recorder of London) allowed the Appeal: R v Joseph [2017] 1 WLR 3153, set out the key principles for such cases.  As per Joseph at para 40 a so-called “Conclusive decision” of the Competent Authority whilst a view to be borne in mind was not conclusive for the purposes of criminal proceedings (at para 20 of judgment).  As per R v DS [2020] EWCA Crim 285, the result of the enactment of the 2015 Act and the section 45 statutory defence was that it was no longer necessary for the courts to fill any perceived gaps by expanding the notion of abuse of process. The question whether the section 45 defence was made out, or more accurately whether the prosecution had proved that it was not made out was a question of fact for the jury to decide.  Furthermore, it was apparent from the words of section 45 that the statutory defence does not arise automatically simply because a person was the victim of trafficking. In addition, there are other elements of the defence, for example the need for compulsion which is attributable to slavery or a relevant act of exploitation.

 

As for setting aside pleas of guilty, R v Asiedu [2015] 2 Cr App R 8, re-affirmed the principles on which a defendant may be permitted to go behind a plea of guilty.  The Court emphasised that the trial process was not a “tactical game”: A defendant who has admitted facts which constitute an offence by an unambiguous and deliberately intended plea of guilty cannot ordinarily appeal against conviction.  Leaving aside pleas which are equivocal or unintended, there are two principal exceptions to this: (1) the plea was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury; (2) Even if on the admitted or assumed facts the defendant was guilty, there was a legal obstacle to his being tried for the offence. This would apply where his prosecution would be stayed on the ground that it was offensive to justice to bring him to trial.  However, although Asiedu set out the main exceptions, it was clear from earlier authority that the jurisdiction was a more general one, derived ultimately from section 2(1) of the 1968 Act, whether the conviction was safe.  

 

There were conflicting witness statements from the applicant’s trial solicitor such that it was not clear whether the applicant fully appreciated that he could mount his defence under section 45 before a jury notwithstanding the negative view of the Competent Authority.  The CACD held that in the “highly unusual circumstances” of the case this was one of those “most exceptional” cases where the applicant’s guilty plea would not be allowed to stand.  The conviction was quashed.

 

Commentary:

The CACD was at pains to point out that the case was “highly unusual” and “most exceptional” but it has to be said that the issues which arose are likely to readily arise in trafficking cases where the decision of the Competent Authority is reversed or post-dates the criminal proceedings.  Another interesting aspect of this case is the anonymity order purportedly made pursuant to s. 11 of the Contempt of Court Act 1981.  That section allows a court to give directions prohibiting the publication of a name or matter that was withheld from the public in proceedings before the court (where the court had power to make such an order within the proceedings).  It is not clear that the applicant’s name was withheld from the public in proceedings before the CACD (or the lower Court) and if it was withheld in the proceedings before the CACD or lower court pursuant to what power.  Section 11 does not confer a standalone power to order anonymity.

 

 

Retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses

 

R v Carl Bater-James and Sultan Mohammed

[2020] EWCA Crim 790

 

By Paul Taylor QC

 

The CACD considered various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. These issues frequently arise in the context of sexual offences as regards material stored on complainants’ mobile telephones, but they occur in a wide range of other circumstances. The CACD set out four issues of principle, initially in the form of a series of questions.

 

  1. The First Issue: Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications. When does it become necessary to attempt to review a witness’s digitally stored communications? When is it necessary to disclose digital communications to which the investigators have access?

67. There is no obligation on investigators to seek to review a witness’s digital material without good cause. The request to inspect digital material, in every case, must have a proper basis, usually that there are reasonable grounds to believe that it may reveal material relevant to the investigation or the likely issues at trial (“a reasonable line of inquiry”).

70. It is not a “reasonable” line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context…

75. We stress, therefore, that mobile telephones or other devices should not be obtained as a matter of routine by investigators from witnesses…

77. …a ‘reasonable line of enquiry’ will depend on the facts of, and the issues in, the individual case, including any potential defence. …if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device…

  1. The Second Issue: When it is necessary, how should the review of the witness’s electronic communications be conducted?

78. …there may be a number of ways this can be achieved without the witness having to surrender their electronic device. …it may be possible to obtain all the relevant communications from the suspect’s own mobile telephone or other devices without the need to inspect or download digital items held by the complainant. The investigator, furthermore, can potentially review the relevant social media posts of the complainant without looking at the individual’s mobile telephone, provided he or she is willing to provide a password.

79… an important question is whether a review of a discrete part of the digital record will suffice. ..putting focussed questions to the witness together with viewing any relevant digitally recorded information, and taking screen shots or making some other suitable record, may meet the needs of the case…

82. If detailed examination of a copy (a “digital download” or “digital device extraction”) of the device is necessary.. it may well be necessary to use search terms rather than an individual “page-by-page” inspection. It is wholly unexceptional for an individual’s personal content on messaging platforms such as WhatsApp to take up thousands or tens of thousands of pages of a mobile telephone download.

 

  1. The Third Issue: What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?

It is necessary that the complainant is kept informed as to the use that is proposed to be made of the mobile telephone or other device and its contents, depending on the extent to which the witness wishes to be provided with updates.

  1. The Fourth Issue: What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of “downloading” the contents (in reality, copying) or permitting an officer to view parts of the device (including, inter alia, copying some material, for instance by taking “screen shots”)? Similarly, what are the consequences if the complainant deletes relevant material?

93. If a witness does not provide the investigator access to their mobile telephone or other device, it is important to look carefully at the reasons for this stance…If the witness maintains his or her opposition, the court may need to consider, if an application is made by the defendant, whether the proceedings should be stayed on the basis that it will be impossible to give the accused a fair trial (Warren v A-G for Jersey [2011] UKPC 10; [2011] 1 AC 22 (at [22])). A highly relevant or determinative consideration will be the adequacy of the trial process, and whether it will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. This situation is analogous to the cases in which there is a complaint that the prosecution failed to secure relevant evidence or evidence has been lost.

95. An application can be made for a witness summons for the mobile telephone or other device to be produced. The witness in these circumstances will have the opportunity to make representations, to enable the court to assess his or her Article 8 rights under the European Convention on Human Rights (see R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin); [2006] 2 Cr App R 34; …

97. If a prosecution witness deletes messages or other relevant items on their mobile telephone, their reasons for doing so, the timing of any such deletion, whether it followed any warning not to do so and (insofar as it can be ascertained) the nature of the material deleted will need to be considered carefully. Each case will turn on its own facts and particularly the assessment of the material that has been removed.

99….The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence.

 

Commentary:

Whilst the CACD guidance is primarily applicable to trial, it will be essential to have regard to it when seeking to appeal against a conviction. At that stage the questions that may arise include: Was this material available at trial but not disclosed? (If not, why not?) Is the material available now or has it been destroyed? If it is available, is the prosecution under an obligation to obtain and disclose the material post trial? This latter question may prompt a knee jerk refusal from the prosecution based on the Supreme Court decision in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 2 Cr. App. R. 22. The Supreme Court held that the prosecution’s duty of disclosure post conviction is far more limited than pre-conviction; prosecutors were obliged to disclose any relevant material which was not already known to the defendant and which might assist him in the proceedings, but such disclosure did not involve a re-performance of the entire disclosure exercise. There was no indefinitely continuing duty on police or prosecutors to respond to whatever enquiries the defendant might make for access to case materials to allow re-investigation.

 

Consequently, when seeking disclosure of electronic material held by prosecution witnesses at the appellate stage it will be wise to address each of the four issues in any request to the prosecution or application to the CACD.

 

 

Appealing against conviction based on guilty pleas – pleas obtained by judicial pressure – unrepresented defendant

 

R v Inkster

[2020] EWCA Crim 796

 

By Paul Taylor QC

 

I pleaded guilty to three counts of breach of a non-molestation order.

 

The matter had initially been set down for trial. I was unrepresented. Following the luncheon adjournment on the first day he changed his pleas to guilty.

 

The primary ground in this appeal was that the appellant’s decision to change his pleas was not a voluntary choice. The pressure placed upon the appellant by the judge, which was the result of incorrect advice given by the judge, resulted in the appellant having no choice but to plead guilty. His freedom of choice having been so narrowed or removed, the pleas of guilty which the appellant subsequently entered are a nullity and should be set aside.

 

“31. We accept the respondent’s submission that the appellant is an intelligent and articulate man who had an understanding of the court process and engaged with it. That said, he is not a lawyer. He was without legal representation and in an unfamiliar environment. The appellant believed he had a defence but was being told by the trial judge, who he reasonably believed knew and understood the relevant law, that he did not have a defence and should not be pleading not guilty. The difficulty which the appellant was experiencing is captured in his first response set out at [14] above: “I don’t quite understand … the very complexity of it, … but my interpretation of reasonable excuse is that I have made every effort to comply with this to try and find solutions through the courts, the legal process …”. Compounding his difficulty was the fact that the judge ignored the defence of reasonable excuse upon which he knew the appellant intended to rely.”

34. Having carefully considered the transcript of the proceedings we have concluded that the judge’s interventions did place pressure upon this unrepresented appellant to plead guilty to the three counts contained in the indictment…As a result, the appellant wrongly believed that he had no defence to the three counts and would be found guilty. It follows, and we so find, that the guilty pleas which he subsequently entered do not represent a true acknowledgement of guilt.

35. We are satisfied that the judge’s uninvited interventions and the consequent impact upon the unrepresented appellant did create inappropriate pressure upon and improperly narrowed the proper ambit of the appellant’s freedom of choice. Accordingly, we find that the pleas of guilty entered to counts 1, 2 and 4 are a nullity. We direct that each plea is set aside and the convictions based upon the pleas are annulled.”

The appeal was allowed.

 

Commentary:

As to the question whether a guilty plea in such circumstances is a nullity or unsafe see the commentary by Paul Taylor in Criminal Law Review on R v McCarthy by clicking here and for commentary on R v Stromberg, please click here.

 

The CACD in Inkster went for both options: it found the guilty pleas to be a nullity and also that the convictions were unsafe.

 

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

Appeals against Sentence; England and Wales
 
Rabah Kherbane
Rabah Kherbane

Rabah Kherbane reviews his recent sentencing appeal for drug offences involving test purchase operations.


Drugs supply guidelines – offer to supply –personal mitigation – totality – test purchase operations – undercover policing

 

Regina v Mustafa Omar

[2020] EWCA Crim 684

 

By Rabah Kherbane

 

MO was sentenced to seven years imprisonment for six offences of supplying Class A drugs to an undercover officer over a five-month period, and offering to supply 1kg of cocaine to the same officer. In addition, £30,000 cash was recovered from MO’s address.

 

On appeal, MO contended that there had not been any regard to totality in his case, after the imposition of a substantial consecutive sentence of 4 years and 6 months for the offer to supply offence. This was his first drugs supply conviction, and he had demonstrated significant remorse, as well as insight into his offending behaviour.

 

MO argued that his sentence was harsher than a third strike offender who had twice been convicted and sentenced for offences of Class A drugs trafficking, despite this being his first such conviction. A ‘third strike’ offender would have received a sentence of 5 years and 6 months following maximum credit applied to the seven-year prescribed minimum. Totality therefore should have, but did not, act to produce a just and appropriate sentence overall.

 

The CACD accepted these submissions and reduced the overall sentence to 5 years and 6 months, and confirmed (see paragraphs 9- 11, and 13- 16 of the judgment):

  1. That ‘offer to supply’ offences should attract a reduction on the guidelines to recognise that there was no actual supply; and
  2. Proper regard to totality means (a) taking into consideration the personal mitigation of the offender, and (b) when sentencing offences committed in a test purchase operation, taking into account that offending was a continuing part of dealings with the same undercover officer, rather than ‘wholly independent transactions.’

 

Commentary:

It is right that offences of offer to supply should attract an appreciably lower sentence when using the standard drugs supply sentencing guidelines. To prove an offence of ‘offer to supply’ the prosecution does not need to prove more than that a simple offer had taken place. The fact a defendant may have not had any intention to supply a controlled drug is irrelevant (Prior (Neil) [2004] Crim.L.R. 849).

 

Despite this, the application of the relevant guidelines has often varied, with some judges opting for standard starting points where the view is taken that the offender had the capacity to effect supply. In Omar, the sentencing judge made this finding on capacity to supply, but the correct approach was to start at the bottom of the relevant bracket in any case. This approach was confirmed by the CACD, to recognise no actual supply took place; greater reductions may be due if it can be shown the offer was not serious.

 

Secondly, the Court’s observation regarding totality taking on an important role where a number of offences have been committed during transactions with the same undercover officer is apt. Arguably, this recognises the realities of undercover operations where officers may continue engagement with the offender without arrest (despite securing sufficient evidence for a conviction), for intelligence gathering or operational purposes. Though this demonstrates a willingness by the offender to continue to supply Class A drugs, this is broadly already captured within the index offending, and so further occasions of supply with the same officer are incidental and it would be arbitrary to treat these without some moderation in totality.

 

Rabah represented Mr. Omar in the Court of Appeal.

 

If you'd like to speak to Rabah Kherbane about the case, please click here.

Health and Safety Appeals
 
Liam Walker
Liam Walker

Liam Walker reviews the meaning of “Exempt facility”.


In what circumstances is a facility exempt?

 

Mustafa and Breslin

[2020] EWCA Crim 597

 

By Liam Walker

 

The applicants submitted that the principle of legal certainty required the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675) to be interpreted as meaning that a facility would cease to be an ‘exempt facility’ only if deregistered under paragraph 8(1)(b) of Schedule 2. The Court rejected those submissions.

 

Facts

 

The applicants were the directors of a company that operated a facility for the storage and treatment of waste wood. Under regulation 8 of the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, such a facility had to be either a ‘regulated facility,’ which required an environmental permit, or an ‘exempt facility.’ The company did not apply for a permit and nor was any permit ever granted. The company registered the operation at the site as an ‘exempt facility.’ Under the Regulations, an ‘exempt facility’ is one which is allowed to store or treat up to 500 tonnes of waste wood over any seven-day period. This is known as the ‘T6 exemption.’

 

Officers from the Environment Agency attended the facility on various occasions and found evidence of waste exceeding the 500 tonne limit. The Agency advised the company to reduce the amount stored at the facility or risk prosecution. The company was warned that non-compliance with an exemption renders the exemption invalid. The Environment Agency, after further visits and warnings, extended the deadline for compliance.  Eventually, on 12 March 2014, the Environment Agency removed the company from the register of exempt facilities. They notified the company that their T6 exemption had been removed from the public register and that the storage of waste wood at the site constituted an offence under regulation 38(1)(a). The Environment Agency charged the applicants and one other director with contravening regulation 41(1)(a) and (b): "by consenting or conniving in the commission of an offence by a body corporate" and "by neglecting in the commission of an offence by a body corporate" respectively.

 

At first instance in the Crown Court, the applicants succeeded in their application to dismiss on the basis that the T6 exemption had remained in place until it was removed from the public register. The Environment Agency successfully challenged the Crown Court’s decision and was granted permission to prefer a voluntarily bill of indictment on a single consolidated count of contravention of regulation 12(1)(a) of the Regulations, thereby committing the offence under regulation 38(1)(a) between 3 September and 6 December 2013. The applicants were convicted of that offence and appealed against conviction.

 

Appeal

 

The issue on appeal was whether the applicants’ facility had been an exempt facility or not. The applicants submitted that an exempt facility did not cease to be exempt until de-registration.

 

The Court of Appeal held that a waste operation will only be an ‘exempt facility’ if it fully meets the requirements of paragraph 3(1) of Schedule 2. The conditions for an operation to be an ‘exempt facility’ were set out in paragraph 3(1) of Schedule 2 to the Regulations:

  1. the operation satisfied the general and specific conditions specified in Part 1 of Schedule 3 to the Regulations for the relevant description of the operation;
  2. it was registered; and
  3. the type and quantity of waste, and method of disposal or recovery, were consistent with the relevant objectives of Directive (EC) 2008/98 – that it did not endanger human health or harm the environment.

If the facility does not meet the requirements of paragraph 3(1) of Schedule 2, it will be a ‘regulated facility.’ If, as a ‘regulated facility,’ it is operated without an environmental permit, there is a breach of regulation 12, and an offence under regulation 38 has been committed.

De-registration, under paragraph 8 of Schedule 2 to the Regulations, would render the facility no longer an exempt facility, because it would cease to satisfy the second requirement of paragraph 3(1). The Court held that a facility could also cease to be an exempt facility by failing to comply with one or both of the other two requirements, in para 3(1)(a) and (c).

 

The Court, at paragraph 79, observed that:

 

The concept of ‘legal certainty’ here is enshrined in the express requirements that have to be met if an operation is to be an ‘exempt waste operation’ and thus an ‘exempt facility.’ Whether an operation is an ‘exempt facility’ depends on the operator having registered the exemption and operating within its constraints. It is a matter of fact whether those requirements are satisfied at any given time. If they are not met, then for the duration of their not being met the operation has ceased to be, and is not, an ‘exempt facility.’

The Court of Appeal held that the prosecution was well founded and was not vitiated by any misconception or misapplication of the legislative provisions.

 

If you'd like to speak with Liam Walker about this case, please click here.

Caribbean Case Summaries
 
Paul Taylor QC
Paul Taylor QC

Paul Taylor QC reviews ECSC decision on USI, corroboration warning, and judicial interventions and Judicial Committee of the Privy Council decision on Antigua money laundering legislation.


By Paul Taylor QC

 

The Eastern Caribbean Supreme Court

The Court Of Appeal Commonwealth Of Dominica

 

Appeal against conviction and sentence

– Unlawful sexual intercourse with a person under 14 years – Corroboration warning – Section 28 Sexual Offences Act – Interruptions by trial judge- balanced and impartial summing up – good character direction - retrial

 

Fontaine v The State

DOMHCRAP2015/0007

 

F was convicted of unlawful sexual intercourse with VC (when she was aged 11). He was sentenced to 10 years’ imprisonment. He appealed against his conviction and sentence.

The issues in the appeal were:

  1. whether the judge erred by failing to assist the jury in determining what evidence amounts to corroboration in a sexual offence;
  2. whether the judge’s interruptions of defence counsel during closing arguments had the effect of stultifying or preventing her from fully and forcefully addressing the jury and/or prejudicing the jury’s mind against the appellant;
  3. whether the judge failed to give a balanced and impartial summary of the cases for both the prosecution and the defence;
  4. whether the judge, in giving the good character direction, failed to direct the jury fully on how to assess the elements of credibility and propensity;
  5. whether the verdict was unsafe and unsatisfactory;
  6. whether the sentence imposed was manifestly excessive.

 

Held: allowing the appeal, quashing the conviction.

  1. Corroboration warning: There was no requirement of corroboration in sexual offence cases in Dominica by virtue of both judicial authority and section 28 Sexual Offences Act. Accordingly, the trial judge was prohibited from giving a corroboration warning in the instant case, but was permitted to give the jury the direction in section 28 of the Act, which he did.

[Section 28 reads as follows: “Subject to section 32, where an accused is charged with an offence under this Act, corroboration is not required for a conviction and the Judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration, but may direct the jury as follows: ‘Testimony which you believe, given by one witness, is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of a single witness, you should carefully review all the testimony upon which the proof of the fact depends.’”]

  1. Judicial interventions: A judge, in a criminal trial, ought to intervene in more than a perfunctory manner during a wholly inappropriate address to the jury by trial counsel, or should take steps to address counsel’s inappropriate address in his summation. In such instances, the essential question is whether or not the nature and extent of the interventions have resulted in the defendant’s trial becoming unfair. It is clear that the interruptions by the trial judge did nothing to stultify defence counsel and prevent her from fully and forcefully addressing the jury. However, there was potential for serious prejudice of the jurors when the trial judge interrupted defence counsel’s address to the jury to say that the appellant’s engagement in an extra-marital affair “goes to the very matter that is very much your concern, good character”. The prejudicing of the jury’s mind against the appellant was at the very least capable of causing a miscarriage of justice, and it cannot be said with any certainty that the verdict would have been the same had their minds not been prejudiced.
  2. Summarising the defence case: The posture adopted by the trial judge in failing to adequately summarise the evidence of the accused is not a good practice and ought not to be followed by judges in jury trials. Nonetheless, it is not every departure from good practice that renders a trial unfair. In this case, although the judge’s failure to at least summarise to the jury the key parts of the accused’s evidence, instead of picking parts and portions, sometimes with the aim of highlighting discrepancies in the evidence of both the prosecution and defence’s witnesses, was undesirable, it did not render the trial unfair so as to justify quashing the conviction for unlawful sexual intercourse.
  3. Good character direction: The standard good character direction has two limbs. The credibility limb speaks to the greater likelihood of a person of good character being truthful than one of bad character, and the propensity limb speaks to the greater unlikelihood of a person of good character committing a crime, especially one of the seriousness of the crime with which the appellant was charged. The trial judge gave a good character direction which included both limbs and how to treat with them. This was necessary since the appellant had no previous convictions and his extra-marital affair had no bearing on the verdict which the jury was charged to render. But the trial judge was not required to, and probably ought not to have included in his direction to the jury the fact that the appellant had twice lied to the court. Nonetheless, this did not amount to a misdirection, nor was it of sufficient significance to negate the value of the good character direction which the judge did give.
  4. Sentence: 10 years’ imprisonment was not so excessive as to merit appellate interference.
  5. Retrial: The Court considered whether there ought to be a retrial of the appellant. The incident leading to the arrest, charge, trial and conviction of the appellant occurred in 2012, when the VC was an 11 year-old child; she is now a young woman, 19 years old. The appellant himself would have been 49 at the date of the incident and is now 57 years old. Justice will probably not be served with respect to either of them if the events of that night in October 2012 have to be virtually relived by the parties and others around them. Witnesses may also be unavailable or unwilling to participate in a new trial likely to take place more than 8 years after the events or circumstances about which they testified at the previous trial. Granted, public interest is always best served by perpetrators of crime, particularly serious crimes like unlawful sexual intercourse with a child, being tried, convicted and punished for their crimes. However, public interest is also not well served by unfairness to accused persons, such as might be occasioned by delays in the trial process not caused by the accused persons themselves. So, to the extent that a new trial will result in a verdict having to be given by a jury over 5 years later than would have been the case if the trial judge had not fallen into error, swings the balance decidedly against a retrial. The balance is further swung against retrial by the fact that the appellant has spent in excess of 4 years and 9 months in prison between the date of his conviction on 14th July 2015 and the date of this judgment. Indeed, when one factors in that a ‘prison year’ in Dominica is equivalent to 8 months on the calendar, the appellant would effectively have served over 7 years in prison, that is, more than 70% of the sentence imposed by the trial judge. A new trial should not therefore be ordered.

 

Commentary:

For a recent example of an appellate courts approach to the impact of judicial interventions (in a civil trial setting) see the Supreme Court (UK) case of Serafin v Malkiewicz and others [2020] UKSC 23.

 

 

Judicial Committee of the Privy Council

On appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)

 

 

Money laundering legislation – civil forfeiture order – whether civil or criminal in nature – proportionate nature of order – “reading down” legislation to ensure constitutionally compliant

 

Williams v The Supervisory Authority (Antigua and Barbuda)

[2020] UKPC 15

 

 

This was an appeal to the Privy Council from the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda). It concerned the operation of the regime in Part IV of the Money Laundering (Prevention) Act 1996 (as amended) (“the MLPA”), headed “Freezing and Forfeiture of Assets in Relation to Money Laundering”, and in Part IVB of that Act, headed “Civil Forfeiture”. The Board considered whether the legal nature of the regime was civil or criminal, and whether it was inconsistent with the Antigua and Barbuda Constitution.

The MLPA enacts a range of measures to counter money laundering and to deprive persons of the proceeds of crime.

The Board held that:

  1. The claim for a civil forfeiture order does not involve charging the appellant with a criminal offence;
  2. There has been no violation of the appellant’s constitutional rights arising from the application of the combined regime in his case.

Proportionality of the civil forfeiture order

97. The making of the civil forfeiture order in the present case was a proportionate measure which did not violate the appellant’s constitutional rights. It is not necessary in this case for the Board to decide definitively whether in every possible case brought under the combined regime in the MLPA the award of a civil forfeiture order will be proportionate. As presently advised, the Board thinks it unlikely that many, if any, cases would arise in which the due application of the combined regime in accordance with its terms would be disproportionate and in breach of a defendant’s constitutional rights…. However, the Board notes that if a situation arose in which it would be disproportionate to make a civil forfeiture order, it would be open to the court, in applying section 20A(1), to hold that although the statute says that the Authority may apply for such an order, it would be inconsistent with the defendant’s constitutional rights under section 3(a) or (c) or section 9 to permit it to do so. Further, it would be possible to read an appropriate qualification into section 20A(2), so that it required the making of a civil forfeiture order “except in so far as such order would be disproportionate and thus breach section 3(a) or (c) or section 9 of the Constitution”: a similar qualification was read into the United Kingdom civil forfeiture legislation in the Waya case, at para 16. The same qualification can be read into section 19A(1A) in relation to the making of a freeze order.”

 

 

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