Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC
Welcome to the May edition of our monthly Criminal Appeals Bulletin. 
 
The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 
 
The featured article focuses on a current appeal topic. In this edition Emma Goodall looks at the lessons that can be learnt from the recent Australian judgement quashing the convictions of George Pell.
 
In this edition we also look at:
 
- CACD conviction appeals: Richard Thomas analyses the landmark decision in Booth and Barton which addressed the test for “dishonesty” and the use of precedent in the CACD; 
 
- CACD sentence appeals: GBH sentencing guidelines, Covid-19 in prisons as a mitigating factor; and  Maryam Mir looks at sentencing guidelines and sexual offences where the proposed victim is a police officer; 
 
- Financial Crime Appeals: Joel Bennathan QC asks “When is a conviction not a conviction?” in the context of POCA.
 
- Northern Ireland: I review a DPP’s appeal involving historic terrorist offences, and SOCPA;
 
- Caribbean: Edward Fitzgerald QC comments on his recent appeal from The Bahamas to the Privy Council involving an unrepresented defendant in a capital trial, and the level of sentencing for murder. I look at an ECSC judgement based on grounds criticising trial counsel and the interpretation of Preddy.
 

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

 

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

 

We are living through challenging times. I hope you and your families keep safe and well.

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


Welcome to the May edition of our monthly Criminal Appeals Bulletin. 
 
The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 
 
The featured article focuses on a current appeal topic. In this edition Emma Goodall looks at the lessons that can be learnt from the recent Australian judgement quashing the convictions of George Pell.
 
In this edition we also look at:
 
- CACD conviction appeals: Richard Thomas analyses the landmark decision in Booth and Barton which addressed the test for “dishonesty” and the use of precedent in the CACD; 
 
- CACD sentence appeals: GBH sentencing guidelines, Covid-19 in prisons as a mitigating factor; and Maryam Mir looks at sentencing guidelines and sexual offences where the proposed victim is a police officer; 
 
- Financial Crime Appeals: Joel Bennathan QC asks “When is a conviction not a conviction?” in the context of POCA.
 
- Northern Ireland: I review a DPP’s appeal involving historic terrorist offences, and SOCPA;
 
- Caribbean: Edward Fitzgerald QC comments on his recent appeal from The Bahamas to the Privy Council involving an unrepresented defendant in a capital trial, and the level of sentencing for murder. I look at an ECSC judgement based on grounds criticising trial counsel and the interpretation of Preddy.

 

 

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

 

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

 

We are living through challenging times. I hope you and your families keep safe and well.

 

With best wishes,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
Lessons to be learnt - Pell v The Queen [2020] HCA 12
 
Emma Goodall
Emma Goodall

Emma Goodall looks at the lessons that can be learnt from the recent Australian judgement quashing the convictions of George Pell.


By Emma Goodall

 

On 7 April 2020, a seven-judge High Court of Australia (HCA) unanimously upheld the appeal of Cardinal George Pell against his convictions for historic sexual offences. The test applied by the Court was whether there was "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”. To practitioners in England and Wales, that formulation looks surprisingly purposive.  We have become inured to the proposition that when assessing the safety of a conviction, it is not for Appellate Courts to substitute their own view of the evidence for that of the jury’s. 
 
In a fact-specific judgment, the Pell appeal principally focused on the evidence referred to as “opportunity witnesses” – that is, multiple witnesses the prosecution were obliged to call at trial, but whose evidence of Mass and the Cathedral layout was incompatible with the allegations as described by the complainant. The Prosecution applied pre-trial, under procedures prescribed by State legislation, to cross-examine their own ‘unfavourable’ witnesses. The HCA observed that by granting the application, the trial Judge implicitly acknowledged that the evidence, if accepted, “excluded the realistic possibility of the offending having occurred as A [the Complainant] described it”. At trial, the prosecution pursued limited cross-examination of these witnesses, failing to challenge material aspects of their evidence or to impugn their reliability. 
 
The language deployed by the HCA to describe their appellate function is familiar: “the performance by a criminal court of appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury”. The distinction the HCA drew between the jury’s function and their own is that their appellate analysis has no subjective element regarding the credibility of individual witnesses – it is based on the inherent logic, or illogic, of the evidence.  To this end, the unchallenged evidence of the Prosecution’s countervailing opportunity witnesses led the HCA to the conclusion that the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant's guilt. However,  the criticism has been levelled that in making that assessment the Court inevitably formed a view, contrary to that of the jury, regarding the credibility of the complaint and therefore of the complainant.
 
Were a similar factual matrix to occur at trial in this jurisdiction, with the countervailing evidence being called by the prosecution, the Court of Appeal may have to determine whether the trial judge erred in leaving the case to the jury.  As this is a matter of law, the Court can avoid having to overtly substitute its view of the evidence for that of the jury’s.  The effect, however, is the same – if a trial judge errs in leaving an untenable case to the jury, the jury must have erred in convicting the defendant. However if, as is often the position, the opportunity witnesses were called at trial by the defence, absent any error in law or procedure, a defendant’s only ground of appeal may be to rely on the exceptional application of the judicially deprecated “lurking doubt” test which “requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe.” . In that situation the difference of procedure and approach between the two jurisdictions is significant with our jurisprudence establishing a much higher hurdle to clear before a jury may be found to have fallen into error.

 

 

 

If you would like to speak to Emma Goodall about this article, please email here.

Financial Crime Appeals
 
Joel Bennathan QC
Joel Bennathan QC

Joel Bennathan QC asks “When is a conviction not a conviction?” in the context of POCA.


By Joel Bennathan QC

 

When is a conviction not a conviction?

 

In Dines and others [2020] EWCA Crim 552 the Court of Appeal had to address an appeal that arose under The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, a statutory instrument made under POCA that allows foreign jurisdictions to register confiscation orders in the UK so that assets can be frozen in the anticipation of their being used to satisfy the order of a foreign court. Perhaps the interest lies, for most lawyers, not so much in the mechanics of the POCA Order, but in the question with which the Court had to grapple, “what is and is not a conviction?” The Court needed to assess this as one of the reasons under the Code for refusing to register a foreign request is when there has been no “conviction”, but that is a question that can be less than straightforward when dealing with foreign courts with very different processes. 


In reaching its decision to dismiss the appeal, the Court considered the Italian Criminal litigation outcome of sentenza di patteggiamento; in essence [and Italian criminal procedure fans can read the case for themselves], a judgment passed by the court based on a negotiated outcome between prosecution and defence that involves the defendant not admitting guilt but signing away any right to challenge the evidence or any sentence passed at a later date. The Court compared this to the procedure used in Florida, nolo contendere, with which the Court of Appeal had to grapple in McGregor (1992) 95 Cr. App. R. 240, which was found not to amount to a conviction. The judgment is detailed and complex, but the main conclusions seem to be; first, that the word “conviction” has a variety of meanings even in domestic criminal law. Second, the language used by the foreign court will be central but not determinative, so if that court calls the outcome a “conviction”, that is important. Third, an outcome that could lead to a custodial sentence will almost certainly be a “conviction”, not least as a loss of liberty in the absence of a conviction would look like a clear violation of article 5 of the ECHR.


This may be an issue more commonly encountered when the Prosecution seek to adduce bad character by way of foreign convictions, but how ever it comes up, the question “when is a conviction not a conviction?” should the provoke the lawyer’s favourite answer, “it depends”.   

 

 

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

 

 

Appeals against Conviction; England and Wales
 
Richard Thomas
Richard Thomas

Richard Thomas analyses the landmark decision in Booth and Barton which addressed the test for “dishonesty” and the use of precedent in the CACD.


By Richard Thomas

 

Dishonesty – Precedent – Conspiracy to Defraud
 
R v David Barton & Rosemary Booth
[2020] EWCA Crim 2020
 
 
Mr Barton ran a luxury nursing home of which Ms Booth was the general manager. The residents enjoyed living at the home and were well treated and well looked after. The prosecution case was that Mr Barton, with the assistance of Ms Booth, befriended and ‘groomed’ some wealthy and vulnerable residents and then dishonestly exploited this friendship in order to enrich himself: he did so by obtaining large cash gifts and loans from the residents, becoming beneficiaries of their wills, and selling items to them, such as Rolls-Royce motor cars, at inflated prices. The residents who were the victims of these practices were willing to agree to the transactions and had the capacity to do so, but the prosecution case was they were highly vulnerable and isolated from advisers at the time when they did so. Mr Barton enriched himself to the tune of over £4 million. Both were convicted of conspiracy to defraud and Mr Barton to various other counts of theft, false accounting, and transferring criminal property.  They appealed against their convictions (and sentences, which will not be addressed here). 
 
This judgment of a five-judge Court of Appeal including the Lord Chief Justice, the President of the QBD and the Vice-President of the CACD brings clarity – if clarity was needed - to the test for dishonesty and in doing so confirms the common law approach to precedent has been altered. Those aspects of the judgment are straightforward. What is more problematic is the Court’s treatment of how, in conspiracy to defraud, the element of ‘unlawfulness’ is identified as part of a dishonest agreement. 
 
Dishonesty
In Ivey v Genting Casinos (UK) Ltd [2018] 1 AC 391, Lord Hughes explained why the law had taken a wrong turn in R v Ghosh [1982] QB 1053 and indicated that for the future the following two stage test should be followed: (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people? 
In the opening paragraph of Barton & Booth, the Lord Chief Justice states “[t]hese appeals provide an opportunity for the uncertainty which has followed the decision in Ivey to come to an end”. The approach in Ivey is correct and is to be preferred. Unsurprisingly, the Ivey test is here to stay. 
 
An offence of dishonesty can therefore be committed by a person who did not appreciate his or her actions were dishonest. But it is important to note that the first stage – i.e. establishing a defendant’s actual state of mind or knowledge as to the facts – does not require that the belief is reasonable, only that it is genuinely held. It is only to this ‘subjective’ knowledge or belief that the ‘objective’ test of dishonesty is applied. This will involve a consideration of the experience and intelligence of the accused. In R v AB & CD [2018] 1 WLR 3647, Lord Hughes took the same approach in finding that ‘reasonable grounds to suspect’ did not require actual suspicion: “But the accused’s state of mind is not, as it is in offences which are truly of strict liability, irrelevant. The requirement that there exist objectively assessed cause for suspicion focuses attention on what information the accused had. As the Crown agreed before this court, that requirement is satisfied when, on the information available to the accused, a reasonable person would (not might or could) suspect that the money might be used for terrorism. The state of mind of such a person is, whilst clearly less culpable than that of a person who knows that the money may be used for that purpose, not accurately described as in no way blameworthy”.
 
Precedent
The discussion on dishonesty in Ivey was strictly obiter because it was not necessary for the decision of the Court. A strict application of the doctrine of stare decisis required therefore the Court of Appeal to follow Ghosh and for the case to return to the Supreme Court. The Court concluded however that the ‘undoubted reality’ was that the Supreme Court in Ivey had altered the established common law approach to precedent in the criminal courts by stating that the test for dishonesty they identified, albeit strictly contained in obiter dicta, should be followed in preference to an otherwise binding authority. The Court did not consider the Supreme Court had gone beyond its powers in acting in that way.
 
Conspiracy to Defraud
An essential element of the offence is ‘unlawfulness’. Unlawfulness is a requirement separate to dishonesty but the Court held “There is no requirement of ‘unlawfulness’ or ‘aggravating feature’ over and above a dishonest agreement which includes an element of unlawfulness in its object or means”. The difficulty is that whilst the dishonesty in the case is obvious, neither the indictment nor the jury directions appeared to make clear the unlawfulness: the particulars of the indictment included “dishonestly exploiting their position” and directions to the jury made reference to “preying upon that vulnerability”. These expressions capture dishonesty, but not unlawfulness. The Court of Appeal’s dealt with this thorny issue as follows: “The trial concerned allegations that the appellants sought to persuade the victims, by way of extensive deceptions and lies, into parting with their property. In our judgment there can be no doubt that the jury understood that the prosecution needed to establish that there was a dishonest agreement on the part of the appellants, by deceit or lies, to prejudice the proprietary rights or interests of the victims by obtaining property to which they were not entitled”. That is problematic because if in neither the indictment nor in the directions they received reference was made to lies and deceit, how is it that the jury was able properly to assess what was required to be proved? 

 

 

 

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

 

Appeals against Sentence; England and Wales
 
Maryam Mir
Maryam Mir

Maryam Mir looks at sentencing guidelines and sexual offences where the proposed victim is a police officer.


The impact of Covid 19 on prisoners – sentencing considerations – suspended sentences

 

R v Manning

[2020] EWCA Crim 557

 

Extracted from the CBA Newsletter dated 5th May 2020:

https://www.criminalbar.com/sentencing-hearings/

 

The LCJ gave an ex tempore judgment (30th April 2020) in an AG’s Ref (R. v Manning) and made the observations copied below. The judgment won’t be available for a few week; the extract to follow this text is not expected to change. 

 

41. We would mention one other factor of relevance.  We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency.  The impact of that emergency on prisons is well-known.  We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service.  The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence.  In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well.  Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be.  Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day.  They are unable to receive visits.  Both they and their families are likely to be anxious about the risk of the transmission of Covid-19. 

 

42.       Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended.  Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline.  That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to retain jurisdiction, rather than committing for sentence.

 

 

Interpretation of Sentencing guideline - GBH

 

Fa Xue v R

[2020] EWCA Crim 587

 

This judgement deals with two questions of interpretation of the Sentencing Council guideline, effective from 13 June 2011, for offences of causing grievous bodily harm (GBH) with intent to do GBH, or wounding with intent to do GBH. The CACD analysed the terms: "Serious in the context of the offence" and “Sustained or repeated assault".

 

 

Sexual offences, s14 (arranging and facilitating a child sex offence) –victim is undercover police officer – guidance on categorisation of harm within Sentencing Guidelines.

 

Privett, West, Smisson & Bounaiuto

[2020] EWCA Crim 396

 

By Maryam Mir

 

These four otherwise unrelated cases were listed together for the court to provide sentencing guidance for offences under section 14 Sexual Offences Act 2003 (arranging or facilitating the commission of a child sex offence, “s14 offence”) and in particular the correct approach to assessing harm. 

 

The common feature between them was that when the individual defendants arranged, via the internet, to commit a sexual offence with a child, they were unaware they were in contact with an undercover police officer posing as parent of the intended victim. All four were arrested upon arrival at a pre-arranged meeting place and found to be in possession of condoms, sexual toys and/or gifts for the intended victim. The existing tension within the relevant jurisprudence on the correct categorisation of harm within the Sentencing Guideline "Arranging or Facilitating a Child Sex Offence" was considered. 

 

All appellants accepted that culpability was unaffected by whether the intended victim was fictitious or not. Relying on R v Baker [2014] EWCA Crim 2752 and R v Bayliss [2012] EWCA Crim 269 and cases that followed that approach, the appellants argued that whenever there is a fictional child victim, sentencing will fall into the lowest category of harm under the guideline (category 3 “other sexual activity”), subject to upward adjustment to reflect any relevant factors in the case. 

The prosecution submitted that it would be wrong in principle to "pre-categorise" offences simply on the basis that a police officer pretended to be a child victim. Each case should be assessed on its own facts, and the court should adopt a flexible approach, determining the category of harm on the basis of the facts of the case. The wording of the s14 offence focussed on intention and belief. An analogous comparison was drawn to the Sentencing Guidelines for Attempted Murder, where in assessing harm the intention and foresight of the defendant must be taken into account and reflected in the sentence imposed. Whether a case falls into category 1A should depend on factors such as the degree of preparation, the length of time over which the offender had the crime in contemplation and the way in which he demonstrated his intention.  

 

In determining that the correct approach was not to pre-categorise, the court decided, at para 67: 

 

“…we consider that for a section 14 offence, the position under the Guideline is clear: the judge should, first, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”), and, second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).

 

Para 72:

“This may lead to the result that a defendant who arranges the rape of a fictional 6-year-old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. In our view, there is nothing necessarily wrong in principle with that result. The sentence should be commensurate with the applicable starting point and range, and in cases where the child is a fiction this will usually involve some reduction (as in Bayliss) to reflect the lack of harm.”

 

Commentary:

The CACD recognised that aspects of the decision in Baker insofar as they apply to section 10 offences may well need to be revisited in light of this judgment, but in the current instance restricted this decision to section 14 offences. None of the sentences were found to be manifestly excessive and the categorisation of 1A was upheld. The Sentencing Council was invited to consider whether clarification of the relevant Guideline was necessary. 

 

 

If you would like to speak to Mayram Mir about this case, please email here.

Caribbean Case Summary
 
Edward Fitzgerald QC
Edward Fitzgerald QC

Edward Fitzgerald QC comments on his recent appeal from The Bahamas to the Privy Council involving an unrepresented defendant in a capital trial, and the level of sentencing for murder.  Paul Taylor QC looks at an ECSC judgement based on grounds criticising trial counsel and the interpretation of Preddy.


The Judicial Committee of the Privy Council
On appeal from the Court of Appeal of the Commonwealth of The Bahamas
 
By Edward Fitzgerald QC
 
Capital murder trial – unrepresented defendant – right to representation - appeal – sentenced without Court inviting legal submissions
 
Bain v The Queen
[2020] UKPC 10
 
This was an appeal to the Privy Council from the Court of Appeal of the Bahamas.
 
Mr Bain had been charged with murder. He conducted his capital trial on his own, without legal representation after the Judge permitted his counsel to withdraw. The Judge had told Mr Bain that he could only get his own set of papers if his counsel withdrew and he represented himself; so he dispensed with his counsel’s services with some encouragement from the Judge and counsel himself.   After conducting his own trial and cross-examining the key witness pretty ineffectively, Mr Bain was convicted of murder and was sentenced to life imprisonment rather though the Judge could have imposed the death penalty. The Court of Appeal accepted that the trial judge had mismanaged the withdrawal of counsel but applied the proviso. The Court of Appeal then “reduced” the life sentence to 55 years imprisonment – without inviting counsel to address them on the length of sentence if the life sentence was set aside. Mr. Bain appealed to the Privy Council [“The Board”] against his conviction and sentence.
 
The Board emphasised the importance of representation by counsel in a murder trial, particularly one where capital punishment was at stake. The Board started from the principle that there was no absolute right to legal representation in all cases. But they drew on the cases of Robinson; Dunkley; and Mitchell to lay down a protocol to be followed where counsel sought to withdraw in such a case; and set out a series of factors that must be taken into account before permitting such withdrawal. Applying those principles, the Board found that the Judge had been too ready to permit counsel to withdraw; had failed to emphasise to the Appellant the magnitude of the step of dispensing with counsel; had failed to adjourn to see if alternative representation could be provided; and had not sufficiently considered the prejudice to the Appellant if he was left unrepresented. They found that the Appellant was seriously prejudiced by the lack of legal representation, and that this was not a case for applying the proviso since the evidence might have turned out differently had he been properly represented.  They quashed the conviction and remitted the issue of whether there should be a retrial to the Bahamian Court of Appeal.
 
On the issue of sentence, the Privy Council went on to observe obiter that the Court of Appeal should have invited submissions on the length of any fixed term alternative sentence before substituting a sentence as long as 55 years for the life sentence. They further referred to the great range of fixed term sentences for murder in the Bahamas, which could be anywhere between 30 and 60 years.
 
Edward Fitzgerald QC represented Mr. Bain. Edward worked with the Death Penalty Project, in-house counsel Amanda Clift-Matthews and local counsel Martin Lundy II of Callenders & Co, Bahamas. 
 
 
By Paul Taylor QC
 
Appeal against conviction – Theft – s.242, s.248(b) Criminal Code of Anguilla – Principles of R v Preddy - no case submission – Ineffective assistance of counsel at trial
 
Joseph Brice v the Queen
Eastern Caribbean Supreme Court
In the Court of Appeal Anguilla
Axahcrap2016/0001
 
JB was a director of a licensed trust management company – PITCO - which was responsible for the management of an international business corporation – Regency - in accordance to the terms of a Management Agreement. Regency had substantial monies to its credit, in a bank account held at Fortis Bank and on which JB had signing rights. JB managed the bank account based on written instructions sent to him by LBA, an accounting firm in South Africa on behalf of Regency. When JB provided trust management services to Regency, he was remunerated based on written instructions from LR.
 
Needing money for his personal use, JB sent an email to LR requesting that LR ask the principals of Regency to loan him the sum of US$950,000.00 for 8 weeks. By the time LR read the email, JB had already instructed Fortis Bank to debit Regency’s account and credit his account in the sum of US$950,000.00. Upon reading the email, LR contacted JB and indicated that there was no approval for the withdrawal of the monies and requested that JB immediately return the monies that he had withdrawn from Regency’s account. JB failed to do so and continued to use the monies for his own use. As a result, Regency and LR made reports to the police. 
 
JB was charged and tried for money laundering and the theft of the sum of US$950,000.00 contrary to section 242 as provided by section 248(b) Criminal Code of Anguilla (the “Criminal Code”) and was convicted and sentenced. JB successfully appealed to the Court of Appeal which ordered him to be retried. On his retrial, the indictment charged him with several counts of breaches of the Proceeds of Criminal Conduct Act and theft. The judge directed the jury to acquit him of all charges under the Proceeds of Criminal Conduct Act and he was tried only on the count of theft. During his retrial, his counsel made a no case submission relying on R v Preddy – but presented in a sub-optimum way - and the submission was overruled. He was convicted and sentenced.
 
JB appealed against his conviction. He complained that:
 
(a) Counsel at the retrial did not competently represent him;
 
(b) The judge erred in failing to uphold his no case submission. 
 
(c) The cumulative effect of both breaches undermines the safety of his conviction. 
 
Held: allowing the appeal and quashing the conviction:
 
1. The no case submission
(a) Money in a bank account represents a credit balance. A credit balance represents a debt owed by a bank to an account holder. Property in the form of credit balance is the customer’s right, as creditor, to recover the debt from the bank. In circumstances that are analogous to the acts of the appeal, the charge of stealing the credit balance shall be proffered as distinct from a charge of theft of the actual sum of money in order for it to be sustainable. Failure to do so is fatal. 
 
(b) In these circumstances, JB was charged and tried for theft of the sum of US$950,000.00 as distinct from theft of the credit balance in accordance with the Preddy and Hilton decisions. The evidence that the Crown led was incapable of establishing a prima facie case that JB had stolen the money. If at all, the charge, based on Preddy, ought to have been in relation to theft of the credit balance. 
 
(c) Accordingly, the judge should have upheld the no case submission in light of this evidential difficulty since no evidence had been led to substantiate an essential element of the offence for which JB had been tried, namely the actus reus of theft of US$950,000.00, had not been proven. 
 
2. Criticism of trial counsel
(a) The general rule is that not every deviation of counsel from standards of professional conduct during the conduct of the trial will result in a conviction being quashed on appeal. If the appellate court is of the view that, notwithstanding counsel’s default, the trial was not affected and the verdict would have inevitably been the same, the conviction may stand. 
 
(b) However where counsel’s conduct was so egregious, the court may take the view that there has been a denial of due process, thereby undermining the safety of the conviction. [Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.]
 
(c) An appellate court must approach complaints about counsel’s incompetence, and its effect with a healthy skepticism. Where it has been demonstrated that counsel’s failures were of a fundamental nature, the court must proceed with great care before it concludes that the verdict would have inevitably been the same. Whilst not making a finding of incompetence against JB’s counsel, there is no doubt that the representation provided by his counsel could have been more helpful and enhanced. The complaints against counsel are serious and the applicable legal principles of Preddy should have been canvassed in more detail and with greater clarity in support of the no case submission. [Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.]
 
Commentary:
There are in effect two bases upon which an appellate court will quash a conviction based on a ground criticising the trial lawyers:
 
(a) Where the conduct of the trial lawyers amounted to errors or irregularities that had a detrimental impact on the trial. Such allegations require an identification of the errors and an analysis of the impact /effect of these on the trial. [Examples may include the inadequate preparation of the defence case, or a failure to properly advise a defendant on the need to give evidence.] [Day [2003] EWCA Crim 1060; Thakrar [2001] EWCA Crim 1096]
 
(b) Alternatively, “ … There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client.” Teeluck v The State [2004] UKPC 14 [Para 39]. "In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed.” Boodram [2002] 1 Cr App R 12 UKPC [para 35]

 

 

 

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

Northern Ireland Case Summary

Paul Taylor QC review a DPP’s appeal involving historic terrorist offences, and SOCPA


By Paul Taylor QC
 
DPP appeal – serious terrorist offences – historic – assisting the authorities – SOCPA - unduly lenient sentence - appropriate tariff
 
The Queen v Gary Haggarty
[2020] NICA 22
 
This is an important case in which the NICA sets out the step by step approach to sentencing.
 
This reference arose as a result of the imposition of an effective tariff of 6½ years for a wide range of serious terrorist offences committed by GH between 1991 and 2007. He was a member of the UVF.  He pleaded guilty to 202 counts including 5 murders, 5 attempted murders, one count of aiding and abetting murder, 23 counts of conspiracy to murder, various serious offences involving firearms, explosives and punishment beatings and 4 counts of directing terrorism.  In addition he has asked for 301 offences to be taken into account. 
 
The Director of Public Prosecutions submitted that the tariff is unduly lenient and should be increased. 
 
After arrest, GH had indicated a willingness to assist the authorities. He later entered into an agreement with a Specified Prosecutor pursuant to section 73 of SOCPA. In interviews he set out in detail his own involvement in the commission of over 500 offences.  He has also provided specific details of the identity and roles of others who participated in the offences.  Without those admissions there would not have been sufficient evidence to have sustained a prosecution against him. 
The NICA set out the sentencing principles that should apply:
 
(a) For the convictions for murder the court was obliged to pass a life sentence and fix a minimum term pursuant to Article 5(2) of the Life Sentences (Northern Ireland) Order 2001. The minimum term is usually referred to as the tariff.
 
(b) Guidance on the approach to the determination of the tariff was given by this court in R v McCandless and others [2004] NICA 1.  
 
Whole life tariffs
The sentencing judge referred to R v Hamilton [2008] NICA 27.  That was a case where this court quashed a whole life order and imposed in the alternative a tariff of 35 years. The sentencing judge identified three reasons for not imposing a whole life sentence in this case.  His final reason was that he was not aware of any terrorist offences in this jurisdiction in which a whole life tariff had been imposed.  “In our view the absence of any case justifying such tariff in the past ought not to prevent the imposition of a whole life tariff where it was appropriate.  In the absence of mitigating factors we are quite satisfied that this was a case for a whole life tariff.” 
Mitigating features
 
The NICA commented on the various mitigating features:
 
(a) GH had pleaded guilty and accepted responsibility for his crimes.  “We recognise that the weight to be given to this factor must vary with the circumstances.” 
 
(b) GH’s responsibility for many of the crimes could not have been established without his admissions and in a large number of cases was not known even on an intelligence basis.  “That is a factor which in our view gives greater weight to the plea in this instance.”
 
(c) The NICA agreed that the sentencing judge was entitled to have some regard to the fact that to impose a whole life sentence would defeat the objects of the SOCPA scheme which gives statutory recognition to the well-established principle of discounting the sentences of those defendants who provide assistance to the prosecuting authorities.  
 
(d) GH had acted as a covert human intelligence source allowing police to take prior action in approximately 44 potential incidents.  The NICA stated “The offender was of course remunerated in respect of his information and continued to operate at a high level within this terrorist organisation.  There is no doubt that his position within the organisation made useful information available to him which he passed to police but it is also clear that he felt at liberty to engage in serious terrorist activity during this period.” [The trial judge allowed 15% for the assistance given before he entered into the SOCPA agreement.  That is clearly a very significant discount but we cannot take issue with it as it reflects the potential saving of a number of lives.]
In terms of the appropriate starting point for the tariff the NICA stated that “in our view where a whole life term is moderated by mitigating factors the appropriate minimum term before taking into account mitigation will normally be 40 years.  That is the figure we consider appropriate in this case.”
 
The sentencing judge allowed a discount of 60% under the 2005 Act.  The NICA did not accept that it should have been higher. “Although the offender was willing to give evidence the assessment was that the test for prosecution would only be met where there was corroboration. That was material in assessing the discount.” 
 
The judge allowed a discount of 25% for the guilty pleas.  “We consider that was generous taking into account that the plea was part of the reason for not imposing a whole life term.  We cannot say, however, that it lay outside the boundary of what was properly within the discretion of the sentencer.” 
 
“We are satisfied, therefore, that the tariff of 6 ½ years was unduly lenient given the catalogue of infamy and murder of which he was guilty.  We substitute a tariff of 10 years.  That represents a very considerable discount from a 40 year starting point and provides a generous incentive for those who are prepared to assist in combating terrorist violence.”  

 

 

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In Other News...
CORONAVIRUS: GUIDANCE REGARDING APPEAL CASES

 

Supreme Court and Privy Council

The Registries of the Supreme Court and of the JCPC are now operating remotely and the building is closed until further notice. The following link deals with hearings, papers for hearings and filing, orders, time limits (and applications for extension), and urgent applications.

 

https://www.supremecourt.uk/news/registry-update.html

 

Court of Appeal (Criminal Division)

https://mailchi.mp/criminalbar.com/coaljf-205657?e=8228c4ff10

 

Further guidance from Vice President of Court of Appeal (Criminal Division) regarding hearings. Set out in letter to the Criminal Bar Association

 

Appeals to the Crown Court

The material below is extracted with grateful thanks from a Powerpoint prepared by HHJ Lana Wood, Harrow Crown Court, and the Table by HHJ Wood, HHJ Silas Reid and HHJ Jonathan Cooper.

 

An analysis of the legislative changes effected by the Coronavirus Act 2020 insofar as they affect the Crown Court

29 March 2020 edition

 

Wholly audio hearing is permissible if the following condition is met:

Condition A: The proceedings are preliminary or incidental to a criminal appeal to the Crown Court

 

Restrictions:

•The defendant may not take part in the proceedings through a live audio link for the purpose of giving evidence.

•A person (other than the defendant) may not take part in the proceedings through a live audio link for the purpose of giving evidence unless—

•(a) there are no suitable arrangements by means of which that person could give evidence through a live video link, and •(b) the parties agree to that person giving evidence through a live audio link.

 

Wholly video hearing is permissible if the following condition is met

 

Condition A: the proceedings are

 

(a)an appeal to the Crown Court which is an appeal only against sentence, (b)an appeal to the Crown Court arising out of a summary trial— (i) which is an appeal arising out of a summary trial which was itself conducted wholly as video proceedings, and (ii) which the parties agree may be conducted wholly as video proceedings, or (c)preliminary or incidental to any criminal appeal to the Crown Court.

 

Additional restrictions

The following restrictions apply to a wholly video, partial video or attended hearing:

•The defendant may not take part in the proceedings through a live audio link for the purpose of giving evidence.

•A person (other than the defendant) may not take part in the proceedings through a live audio link for the purpose of giving evidence unless— •(a) there are no suitable arrangements by means of which that person could give evidence through a live video link, and •(b) the parties agree to that person giving evidence through a live audio link.