Welcome
Welcome
 
Farrhat Arshad
Farrhat Arshad

Welcome to the October 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, Nichola Higgins considers the case of McGuigan, concerned with the notorious “hooded men” interrogation used in Northern Ireland.

 

We also look at:

  • CACD conviction appeals dealing with the admissibility of blood sample evidence in a s. 3A RTA 1988 prosecution, and the correct constitution of the tribunal in a RAF Court Martial;
  • CACD sentencing appeals dealing with the minimum term starting-point for youths convicted of murder and a reiteration of the principles that apply to the lifting of a reporting restriction made under s. 45(3) of the Youth Justice and Criminal Evidence Act 1999.
  • Hong Kong appeals dealing with Rape and the separate consideration of offences, and the correct framing of the indictment and particulars to be proven by the Prosecution in a conspiracy to defraud.

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

 

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

 

We hope that the bulletin is of interest to you. 

 

With best wishes,

 

Farrhat Arshad

DSC Criminal Appeals Unit


Welcome to the October 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, Nichola Higgins considers the case of McGuigan, concerned with the notorious “hooded men” interrogation used in Northern Ireland.

 

We also look at:

  • CACD conviction appeals dealing with the admissibility of blood sample evidence in a s. 3A RTA 1988 prosecution, and the correct constitution of the tribunal in a RAF Court Martial;
  • CACD sentencing appeals dealing with the minimum term starting-point for youths convicted of murder and a reiteration of the principles that apply to the lifting of a reporting restriction made under s. 45(3) of the Youth Justice and Criminal Evidence Act 1999.
  • Hong Kong appeals dealing with Rape and the separate consideration of offences, and the correct framing of the indictment and particulars to be proven by the Prosecution in a conspiracy to defraud.

 

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

 

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

 

We hope that the bulletin is of interest to you.

 

With best wishes,

 

Farrhat Arshad

DSC Criminal Appeals Unit

Feature Articles
Re McGuigan’s application for judicial review [2019] NICA 46  - The ‘hooded men’: State authorised torture on home ground
 
Nichola Higgins
Nichola Higgins

Nichola Higgins considers the case of McGuigan, concerned with the notorious “hooded men” interrogation used in Northern Ireland.


By Nichola Higgins

 

The internment operation commenced at 4 am on 9 August 1971 with the arrest of 350 people, twelve of whom would ultimately be taken to a secret interrogation centre at Ballykelly in Northern Ireland.

 

The Secretary of State for Defence and the Home Secretary discussed the proposed interrogation process on 9 and 10 August 1971 and the interrogation began on 11 August 1971 at 7pm; after the Director of Intelligence had spent one hour explaining the techniques to Brian Faulkner, then Prime Minister of Northern Ireland.

 

The interrogation took place over the course of the next week.  The techniques used included:

  1. Hooding; putting a dark coloured bag over the detainee’s heads for long periods of time;
  2. Wall-standing: a stress position that puts most of the body’s weight on the fingers;
  3. Subjection to a continuous loud noise;
  4. Deprivation of sleep;
  5. Deprivation of food and drink.

Detainees also alleged physical mistreatment including beatings and being thrown into walls or a concrete post.

 

The above was known by 1978. In addition it was known that the use of the techniques was unlawful and in breach of Article 3 of the European Convention on Human Rights, that the UK Government had accepted that they had been authorised at a senior level and that it chose not to co-operate fully with the investigation carried out by the European Commission and that the UK Government had made it clear that it did not intend to carry out any criminal investigation.  It took 41 years before the techniques applied to the “Hooded men” would be recognised as torture by this majority judgment of the Northern Ireland Court of Appeal delivered on 20 September 2019.

 

The matter arose out of an application for judicial review of the decision of the PSNI that there was no evidence to warrant any further investigation into the allegation that the UK Government had authorised and used torture in Northern Ireland.

Following initial events in the 70s, an enquiry took place and a separate report as well as a case brought by the Irish Government against the UK Government in the European Court of Human Rights (the first time one state had taken a case there against another state) in which the ECHR found that the techniques amounted to inhuman and degrading treatment - but not torture.  The position was reviewed in Selmouni v France (1999) 29 EHRR 403, however the earlier ruling has been deployed to justify aggressive interrogation techniques.

 

Thereafter, all went quiet until August 2013 when researchers happened across archive material relating to the Ireland v UK case which had been authorised for release in 2003.  The documentation disclosed correspondence which implicated Lord Carrington (Secretary of State for Defence in 1971) and suggested that the UK Government had withheld evidence from the Strasbourg institutions that the effects of “deep interrogation” were more prolonged and serious than first thought.

 

Following this, Gerry Kelly MLA tabled a question for the Chief Constable of the PSNI asking what action had been taken following assertion in official documents that Lord Carrington had authorised such methods in Northern Ireland.  The response was “The PSNI will assess any allegation or emerging evidence of criminal behaviour, from whatever quarter, with a view to substantiating such an allegation and identifying sufficient evidence to justify a prosecution and bring people to court". It was the nature of the review that ultimately led to the application.

 

Article 2 of the ECHR also requires some form of effective official investigation when individuals have been killed as a result of the use of force.  Post Geraldine Finucane’s Application [2019] UKSC 7, this duty is detached which means that the duty can arise even if the death occurred before the entry into force of the Human Rights Act in October 2000. 

 

Ultimately, the majority judgment denied the existence of a right to a new investigation compliant with Articles 2 of the Convention on the basis that the test established in Brecknell v UK (2008) 46 EHRR 42 (which requires a temporal connection, a genuine connection and new information which casts a new light on circumstances) was not satisfied. The new information did not substantially change the picture that was public knowledge since 1978. 

 

However, they did find that the assurance of the Chief Constable of the PSNI was a clear and unambiguous undertaking which gave rise to a legitimate expectation of a criminal investigation. That expectation was not met by the limited investigation that had been conducted by a research assistant. The scope of the investigation to date was therefore irrational. 

 

The case is significant for three reasons:

 

First, the confirmation that torture was used and authorised by the UK Government is clearly significant.  It is an example of the ECHR as a living instrument, even if it is toothless with regard to inadequate past investigations. In addition, the retrospective categorisation of the interrogation methods may pave the way for other victims of torture to seek redress and for their abusers to be held to account.

 

Secondly, the case is an example of the delicate balancing exercise at the heart of the intersection between the need for legal certainty, new material and the duty to investigate; where the latter means, as it surely must, the duty to conduct a full and independent investigation.  

 

Thirdly, the final paragraph, serves as a judicial warning for our times: “It is, of course, entirely appropriate in a modern democracy that civil servants should protect the political reputation of their Ministers but there is a real danger that the rule of law is undermined if that extends to protecting Ministers from investigation in respect of criminal offences possibly committed by them”.

 

This judgment was followed four days later by the Supreme Court decision in Miller 2.  A sober reminder of the importance of an independent judiciary.

 

You can read the summary of the judgement here.

 

If you would like to discuss this case with Nichola Higgins, please email here.

 

Appeal against Sentence – England and Wales
 
Isabella Forshall QC
Isabella Forshall QC

Isabella Forshall QC and Farrhat Arshad comment on CACD sentencing appeals dealing with the minimum term starting-point for youths convicted of murder and a reiteration of the principles that apply to the lifting of a reporting restriction made under s. 45(3) of the Youth Justice and Criminal Evidence Act 1999.


Murder – attempted murder – minimum terms – personality order - brain development in young adults and effect on impulse control - alcohol

 

R v Kai Nazir

 

[2019] EWCA Crim 1403

 

By Isabella Forshall QC

 

 

[This is an important case on the CACD’s approach to sentencing young adults. Ed.]

 

Kai Nazir was 19 years old when, with drink taken, on the verdicts of the jury, he first attempted to murder one young man by stabbing him to the upper abdomen, and then murdered another young man who confronted him shortly later about what he had done, by stabbing him twelve times.  He had brought a knife with him to the scene.

 

Psychiatric and psychological reports noted, and the trial judge accepted, a developing and long-standing disorder of personality. However the appellant’s drunkenness was said by the doctors and accepted by the Judge to have played the primary role in the offence.

 

The trial Judge took a starting point of 30 years to reflect the totality of the offending and those matters which he considered aggravated the offences.  From this he subtracted four years to reflect the appellant’s youth and developing personality disorder, thus arriving at a minimum term of 26 years.

 

The CACD found that the 26 year term was manifestly excessive and reduced it to 23 years. The Court accepted the Judge’s view that drunkenness played a primary role in the offending and that the personality disorder was less important than the youth and immaturity of the appellant in weighing culpability, but found nevertheless that the trial Judge had made insufficient allowance in passing sentence for the youth of the appellant and his psychological difficulties. In the course of the appeal, the Court invited the submission of and considered materials respecting brain development in young adults and its effect on impulse control and hence culpability.

 

The Appellant will now be 43 when he can first apply to the Parole Board for release on life licence where formerly he would have been 47.  The discount to reflect his frailties substituted by the Court of Appeal is of the order of a quarter of the starting point.

 

 

 

Minimum term for 16 year old – murder; 12 year starting-point - aggravating features.

 

Prohibition on identification of youths - s45 Youth Justice and Criminal Evidence Act 1999.

 

R v Ayman Aziz

 

[2019] EWCA Crim 1568

 

By Farrhat Arshad

 

 

[A detailed analysis of the CACD’s approach to the minimum terms for 16 year olds and a judicial review of a prohibition on identification. Ed]

 

A, aged 16, had been convicted of the rape and murder of a 14 year old girl.  He sought to appeal against the minimum term imposed for those offences. 

 

He also sought to judicially review the removal of an order prohibiting his identification in any publication, made under section 45(3) of the Youth Justice and Criminal Evidence Act 1999.

 

The deceased and A were friends.  A had arranged to meet the deceased in a park.  The next morning the deceased’s body was found on a park bench.  Anal intercourse had taken place prior to her death.  The post-mortem examination revealed the deceased had been subjected to a sustained and ferocious attack to the head, involving a large number of blows.  Some of the injuries were consistent with the use of a weapon like a hammer. A accepted that he had met the deceased in the park on the night she died and said that they had engaged in consensual sexual activity. He denied that he had assaulted her and said that she was alive and well when he had left her in the park. Examination of A’s devices revealed that he had deleted messages and researched how to delete his Facebook account.  He was convicted after trial.

 

Following conviction, reports were obtained, including reports from two psychiatrists and a pre-sentence report.  Both psychiatrists described symptoms of psychosis and paranoia, and they agreed that A met the criteria for a diagnosis of paranoid schizophrenia. Neither psychiatrist could say what part A’s mental health had played in the offences.   The judge imposed the mandatory sentence of detention at Her Majesty's pleasure for murder, pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000. He specified a minimum term of 19 years. A sentence of 10 years' detention was passed for the rape, to be served concurrently.

 

A appealed against the minimum term on 3 grounds: (i) the judge paid insufficient regard to the intention of Parliament in setting the statutory starting point for those aged under 18 at 12 years, regardless of the nature of the offence. To have purposive effect, the 12 year starting point must exert a substantial "drag" on aggravating features; (ii) The judge's approach to the appellant’s mental health focussed too much on whether it was causative of the offending and too little on the overall mitigation which his mental disorder afforded him; (iii) the judge paid too much attention to the appellant’s chronological age, and insufficient to his developmental immaturity. His emotional and educational deprivation should have received greater recognition, and more weight in sentencing.

 

The CACD (Lord Burnett of Maldon, LCJ, Warby J. and Edis J.) refused the appeal against sentence.  In the present case, the overall increase, after balancing aggravating and mitigating factors, had been from 12 to 19 years. The CACD did not consider that to be arguably wrong.  There was a range of specific aggravating factors: The murder was carried out with a weapon brought to the scene for the purpose; there was sexual motivation, and the additional offence of rape; there was a sadistic element to the offending; and the victim was subjected to mental and physical suffering over a prolonged period. It was legitimate to keep in mind that the sadistic and sexual elements of this offending would have led to a starting point for someone aged 21 or more of a whole life term (under paragraph 4(2)(b) of Schedule 21) and, for one aged 18 to 21, a starting point of 30 years (paragraph 5(2)(e) and/or (h)). The judge did not overlook the statutory starting point. Although the sentence was a substantial one, the Court did not consider it arguable that the sentence "floated free" of the starting point required by paragraph 12 of Schedule 21. (At paragraph 26 of the judgment). 

 

As to grounds (ii) and (iii), those factors had been properly taken into account as shown by the five year reduction for mitigating features.

 

As for the issue of identification of the appellant in publications:  Prior to trial the judge had made an order under section 45(3) of the Youth Justice and Criminal Evidence Act 1999, prohibiting the identification of the then defendant.  After his conviction, the Express and Star Newspaper submitted written representations, inviting the judge to consider lifting the reporting restriction. The newspaper identified relevant principles and authorities.  The judge granted the newspaper's application and made what the statute calls an "excepting direction". Its effect was to discharge the section 45(3) direction in its entirety. He gave his reasons in writing.  The appellant sought to judicially review that direction and the direction was stayed in the meantime.

 

The CACD discussed the issue of jurisdiction (at paras 51 to 57 of the judgment) but did not come to a definitive conclusion on the issue, not having heard argument on the point, stating (at para 57), “It may become necessary to revisit whether decisions in the Crown Court in this area are properly subject to judicial review, and the relationship between the various provisions to which we have referred conferring power of the Court of Appeal Criminal Division. In the circumstances, not having granted leave to appeal, we reconstitute ourselves as a Divisional Court and deal with this issue in the judicial review.”

 

At paragraph 36 of the judgment, the Court stated:

 

Decisions under these provisions call for the exercise of judgment, requiring the court to balance the competing claims of privacy, a child's welfare and open justice: Markham [75], [83-84]…. ...When considering a challenge to a decision on such an issue, the court (whether by way of appeal or judicial review) will respect the trial judge's assessment of the weight to be given to particular factors, interfering only where an error of principle is identified or the decision is plainly wrong. It is for that reason that this Court emphasised in Markham at [84] that, ‘for the future, submissions in this area of the law should focus on the facts of the particular case relevant to the exercise of the court's judgment, rather than the siren calls of abstract principles that have already informed the approach which the courts adopt.’”

 

In considering the lifting of the restriction, the Court repeated the principles that had been set out in R v Markham and Edwards [2017] EWCA Crim 739 on this issue (at paragraph 40 of the judgment):

 

“In Markham, at [76] to [87], this Court reviewed the principles in the context of a child defendant, an excepting direction under section 45, Article 3 of the UN Convention on the Rights of a Child, and other relevant international instruments concerning the administration of juvenile justice. Key features include the following:

 

(1) The general approach to be taken is that reports of proceedings should not be restricted unless there are reasons to do so which outweigh the legitimate interests of the public in receiving fair and accurate reports of criminal proceedings and knowing the identity of those in the community who have been guilty of criminal conduct and may, therefore, present a danger or threat to the community in which they live: R v Leicester Crown Court ex p S (A Minor [1993] 1 WLR 111, 156 (Watkins LJ); Markham [80].

 

(2) The fact that the person before the court is a child or young person will normally be a good reason for restricting reports of the proceedings in the way permitted by the legislation; and it will only be in rare cases that a direction under section 45(3) will not be given or, having been given, will be discharged: ibid.

 

(3) Very great weight must be given to the welfare of such a child or young person. Power to dispense with anonymity must be exercised with very great care, caution and circumspection; the court must be clear in its mind why it is in the public interest to dispense with the restrictions, which will very rarely be the case: McKerry v Teesdale and Wear Valley Justices (2000) 164 JP 355 [2001] EMLR 5, Markham [81].

 

(4) It is not the case, however, that the welfare of the child or young person will always trump other considerations. Even in the youth court, where the regime requires that proceedings should be held in private, with the public excluded, the court has power to lift restrictions. When a juvenile is tried on indictment in the Crown Court there is a strong presumption that justice takes place in open and the press may report the proceedings, as made clear by the House of Lords in Re S; Markham [82].”

Having considered these principles the Court upheld the trial judge’s decision: 

 

“The judge was well aware of the need to have regard to the welfare of the offender. He had adjourned sentence for the express purpose of obtaining psychiatric reports, and a pre-sentence report. His ruling on the Express and Star's application began by referring to these reports. We see no basis for the assertion that he failed to have regard to the contents of those documents. On the contrary, his ruling contained an evaluation of the psychiatric evidence, its impact on culpability, and the risks of harm to the appellant. We have carefully reviewed the material that was before the Judge. His approach to the evidence cannot be faulted. The reality is that the majority of the evidence of threats or actual harm amounted to self-reporting by an individual diagnosed as suffering from paranoid delusions. Neither the experts nor the authors of the pre-sentence report were able to provide cogent evidence that identification of Aziz would cause or risk significant harm to his health or wellbeing.

The justification for identifying the perpetrator of a serious crime could be thought weaker if his offending resulted from, or his culpability was significantly reduced by, paranoid schizophrenia. The judge was right to assess whether the evidence suggested this was so, and to give the mental illness less weight because it did not. That did not involve disregarding that same factor when it came to the issue of welfare. In our judgment, these four grounds of appeal amount, in reality, to a complaint about the way in which the judge struck the balance. The arguments advanced on behalf of Aziz naturally focus on one side of the balance, namely his interests. The judge was concerned also with the public interest. In our judgment there was no legal error in his approach.”  (At paragraphs 46 and 47).

 

The Court further held that the trial judge was right to proceed on the basis that the Order prohibiting publication of the appellant’s identity only lasted until he was aged 18, after which it fell away.  The only application that could be made in anticipation of the appellant’s majority was for what might be called a "Venables" or "Mary Bell" Order: an injunction against all the world grounded in a compelling need to protect a notorious criminal against vigilante action that threatens his personal safety or wellbeing: Venables v News Group Newspapers Ltd [2001] Fam 430; X, a woman formerly known as Mary Bell v O'Brien [2003] EMLR 37.  The Court emphasised that such orders were exceptional - RXG v Ministry of Justice [2019] EWHC 2026 (QB) at [32] to [35].  The judge was justified in proceeding on the assumption that anonymity would soon fall away. He was entitled to take the view that continued anonymity was not warranted, in order to allow what could only be a relatively short period of treatment and assessment. (At paragraph 50).

 

 

If you'd like to speak to Isabella Forshall QC or Farrhat Arshad about these cases, please click here for Isabella and here for Farrhat.

 

Hong Kong Case Summaries
 
Richard Thomas
Richard Thomas

Richard Thomas looks at Hong Kong appeals dealing with Rape and the separate consideration of offences, and the correct framing of the indictment and particulars to be proven by the Prosecution in a conspiracy to defraud.


By Richard Thomas

 

Court of Final Appeal

 

Rape – Directions on Separate Consideration of Counts

 

HKSAR v C.T.

 

[2019] HKCFA 26 FACC No. 25 of 2018 on appeal from CACC No. 221 of 2016

 

 

The appellant was charged with five counts of raping a girl, X, contrary to section 118(1) of the Crimes Ordinance (Cap. 200). The prosecution’s case was that the appellant raped X on five occasions in a rental premise. In relation to the fifth count, his defence was one of alibi. The trial judge observed in her directions to the jury that this was a word-against-word case where the evidence basically consisted of the oral evidence of X against that of the appellant. The appellant was convicted on counts 1 to 4 and acquitted of count 5.

 

In dismissing his appeal, the Court of Appeal rejected the appellant’s submissions that his acquittal on count 5 rendered his conviction on counts 1 to 4 unsafe and unsatisfactory.

 

‘Markuleski’ Direction

 

The first issue before the Court of Final Appeal was whether the standard direction to the jury – that they should consider each count separately, and may accept part of a witness’ evidence and not the other parts of the same witness’s evidence (the ‘separate offences direction’) – should be qualified in cases of sexual offences where the only direct evidence of the commission of the offences came from the complainant.

 

The appellant’s contention was firstly that the trial judge should have indicated to the jury that any reasonable doubt they form concerning one aspect of the complainant's evidence must also be taken into account in assessing the overall credibility of the complainant and hence in relation to other counts (a ‘Markuleski direction’) and secondly that the trial judge should have given a more detailed direction to the jury that they may consider it very difficult to find the appellant guilty on counts 1 to 4 if they find him not guilty on count 5.

 

The Court held that a Markuleski direction was not always necessary or desirable as a counterweight to the separate offences direction. The direction should only be given when necessary, and only where a risk of unfairness to the accused had truly arisen. The overarching consideration was the conduct of a fair trial.

 

In the appellant’s case, the trial judge had already given a Markuleski direction during trial with particular reference to count 5, which trial counsel did not request to expand in the detailed terms suggested before the Court of Final Appeal. The Court therefore rejected the appellant’s submission that he was denied a fair trial.

 

Inconsistent verdicts on uncorroborated evidence

 

The second issue concerned the proper approach of an appellate court towards inconsistent verdicts where, although not logically inconsistent, the verdicts were based on the uncorroborated evidence of the complainant. The Court reaffirmed the previous position in Hong Kong that in order to successfully appeal on the grounds of “factual inconsistency”, the appellant had to show that no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict in question.

 

On the facts of this case, the Court held the absence of corroborated evidence could not of itself be decisive; there had been no undue delay in making the complaint; and that there had been an apparent difference in the quality of X’s evidence between counts 1 to 4 and count 5, as count 5 was contradicted by the alibi. The different verdicts were not inconsistent such as to necessitate intervention on appeal.

 

 

Conspiracy to Defraud

 

HKSAR

v

Chen Keen (alias Jack Chen), Hao May (formerly known as Wang May Yan, alias May Wang), Yee Wenjye (also known as Yu Wenjie, alias Eric Yee)

 

[2019] HKCFA 32, FACC Nos. 26, 27 & 28 of 2018 on appeal from CACC No.172 of 2016

 

 

The appellants were charged and convicted on two counts of conspiracy to defraud: a conspiracy to defraud the Stock Exchange of Hong Kong and a conspiracy to defraud China Jin Hui Mining Co Ltd (later known as Natural Dairy (NZ) Ltd), a company listed on the SEHK with the Stock Code No. 462.  The first appellant was also convicted on a further count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud. 

 

The facts are not straightforward. The first appellant was a director of ‘462’ while the second appellant was the ultimate beneficial owner of the companies that entered into an agreement to sell to 462 some farms in New Zealand. This was ‘the acquisition’.   Given the size of the Acquisition, 462 was required under the Listing Rules to make a public announcement and publish a circular approved by the SEHK.  In both of these documents, the first and second appellants claimed that they (including the companies controlled by them) were independent from each other and not connected to the acquisition.  The third appellant was brought in to handle the accounts of the farms.

 

The prosecution alleged they conspired together to cause SEHK to allow the publication of the announcement and circular and to cause 462 to approve the acquisition and its financing measures using dishonest means (‘the intended results’). 

The particulars of the indictment alleged the intended result were achieved by:

  1. The first and second appellants had dishonestly made false representations in relation to or concealed the connections between themselves and their interests otherwise in the Acquisition (“Particulars (a)-(c)”).
  2. All appellants had dishonestly made false representations in relation to or concealed the true financial position of the farms (“Particulars (d)-(e)”).

The trial judge instructed the jury that, in order to convict the appellants of conspiracy to defraud, the jury must be sure that in respect of each count, that the appellants had agreed to use dishonest means to bring about the intended results.  Of particular relevance, the jury was also reminded that:

  1. the dishonest means referred to in Particulars (a)-(c) concerned only the first and second appellants, while Particulars (d)-(e) covered all appellants.
  2. in relation to Particulars (a)-(c), the trial judge directed the jury that it is sufficient if they were satisfied that A1 and A2 were “working together” in the acquisition when deciding whether they had made misrepresentations or concealments regarding their connection and interest in the Acquisition.
  3. the prosecution do not need to prove all of these particulars, but it is sufficient that one or more of these are made out, and the jury is sure that at least two of the appellants knowingly and intentionally made these representations or concealed the truth.

The appellants were convicted at trial and the Court of Appeal dismissed their appeals.

 

Issues before the Court of Final Appeal

 

The appellants argued that, since Particulars (a)-(c) and Particulars (d)-(e) involved different dishonest means with different alleged co-conspirators, they are therefore two different conspiracies.  It is wrong for one count of conspiracy to defraud to contain more than one conspiracy and so the counts in the present case are improper in that they respectively include both Particulars (a)-(c) and Particulars (d)-(e). This was the ‘duplicity argument’.

 

The appellants also argued that it was wrong for the trial judge to direct the jury using the “working together” formulation instead of properly defining legal concepts such as “connected persons” or “connected transactions” to the jury. This was the ‘Misdirection Argument’.

 

The Duplicity Argument

An offence of conspiracy to defraud is the making of an agreement in which the co-conspirators agreed to use dishonest means intending to achieve the object of either injuring or imperiling the victim’s economic interests, or deflecting the victim from performing his duty. Hence, to find the co-conspirators guilty, the prosecution’s job is complete if he could prove that there is such an agreement to use some unspecified dishonest means to achieve the fraudulent object.

 

To prove agreement, the prosecution need to spell out facts and matters which they rely on in order to inform the accused of the case they have to meet. This is done through providing particulars in an indictment.  That said, not every fact specified in an indictment would necessarily have to be proven by the prosecution in order to secure a conviction (the example was given of overt acts only going to the background context). However, where the prosecution rely on the particulars as the very dishonest means agreed upon, these particulars, being an essential element of the offence of conspiracy to defraud, would have to be proven by the prosecution.

 

It is necessary therefore to determine whether the particulars in the present case are simply overt acts, or were they the very dishonest means agreed upon.  Having regard to the wording of the indictment, the written and oral directions of the trial judge, and how counsel had conducted the trial, the Court found that Particulars (a) to (e) were relied upon as the agreed dishonest means rather than merely overt acts.  As such, these particulars must be proven.

 

Having established that these particulars are all agreed dishonest means which have to be proven, and given how Particulars (a)-(c) and Particulars (d)-(e) encapsulate rather different dishonest means involving different co-conspirators, the counts containing both of these sets of particulars would thus essentially include two conspiracies each.  Furthermore, as mentioned above, the jury was directed that it is sufficient that “at least” two of the accused were part of a conspiracy.  Therefore, there is a risk that the jurors may have convicted the appellants without actually agreeing upon whether the dishonest means of the conspiracy was the one under Particulars (a)-(c) or that under Particulars (d)-(e), and who among the appellants were part of this conspiracy. There was therefore a risk that the jury had not arrived at a valid verdict against the same appellants based on an agreement to employ the same dishonest means, which meant that the prosecution may not have proven their alleged criminal agreement.  The convictions against all of the appellants were unsafe.

 

The Misdirection Argument

Given the conclusion, on the misdirection argument, the Court found it unnecessary and undesirable to deal with the issues arising from the Misdirection Argument.

 

The appeals were unanimously allowed, and the convictions of the appellants were quashed.  A re-trial was ordered, and the prosecution was given the choice to amend the present indictment or to issue a new one.

 

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

 

Appeals against conviction – England and Wales
 
Paul Mason
Paul Mason

Farrhat Arshad and Paul Mason comment on CACD conviction appeals dealing with the admissibility of blood sample evidence in a s. 3A RTA 1988 prosecution, and the correct constitution of the tribunal in a RAF Court Martial.


 

Whether a blood sample not taken in accordance with s. 7 of the RTA 1988 is automatically inadmissible in evidence - Murray v DPP-  s.78 PACE.

 

R v Twigg

 

[2019] EWCA Crim 1553

 

By Farrhat Arshad

 

 

T had been convicted of causing death by careless driving whilst over the specified limit for a drug, contrary to section 3A(1) Road Traffic Act 1988 ("the RTA 1988") and sentenced to five years’ imprisonment.  Whilst driving, he had collided with a 14 year old boy who was riding his scooter in the road.  T had not been using his headlights and had not stopped at the scene.  He had called the police shortly afterwards. Whilst at his home address, police had smelt cannabis and asked if he had been using any illegal drugs.  He had replied, “Not recently”.  At the police station,a blood sample was taken by a healthcare professional and subsequently analysed. Traces of cannabis were found which placed T in excess of the specified limit for that drug.

 

T sought to appeal against that conviction on the basis that the trial judge had erred in allowing into evidence the result of the blood test, which had not been taken in accordance with s. 7 RTA 1988, as the healthcare professional had not advised the constable that the suspect’s condition may be due to drugs, rather the constable had requested the blood sample be taken.  It was argued: (i) That the blood sample had not been lawfully obtained and was therefore automatically inadmissible as a matter of law; (ii) In the alternative, the judge should have exercised her discretion pursuant to section 78 PACE and excluded the evidence arising from the blood sample.

 

As to (i), the CACD (Singh LJ, Julian Knowles J. and Sir John Royce) held that the decision in Murray v DPP [1993] RTR 209 was not authority for the proposition that any breach of any of the procedures associated with the obtaining of specimens under s.7 RTA 1988 meant that a specimen is automatically rendered inadmissible in evidence in criminal proceedings.  In coming to this view, the CACD relied on Bodhaniya v Crown Prosecution Service [2013] EWHC 1743 (Admin); 178 JP 1TR 224, where Burnett J. (as he then was) stated:

 

"Section 7 of the Road Traffic Act 1988 does not in terms provide that a failure to comply with section 7(3) has the consequence that the results of the analysis of a blood sample cannot be given in evidence. That is why the appellant's advocate at trial and the district judge approached the matter through section 78 of the Police and Criminal Evidence Act 1984.  That is in contrast, for example, with the provisions of section 15(4) of the Road Traffic Offenders Act 1988.  That provides that the specimen of blood should be disregarded, unless it was taken with the consent of an accused and was taken by a medical practitioner or registered healthcare professional.

 

The general position in English law is that evidence obtained illegally remains admissible, even in criminal cases. That is why its exclusion is argued by reference to section 78 of the 1984 Act. In the overwhelming majority of cases it may be that a failure to comply with s.7(3) RTA 1988, before requiring an accused to provide a specimen of blood, will have the result that all evidence of that specimen will be excluded. But it is not necessarily so. The facts that this case, where on any view the constable concerned bent over backwards to try to assist the appellant in difficult circumstances, provides an example where exclusion under section 78 would not have been appropriate."

 

As to (ii), the CACD concluded that the trial judge’s approach to s.78 could not be criticised.  She was entitled to exercise the judgement which she did under s.78 PACE and to refuse to exclude the evidence of the blood sample for the reason that she gave, namely that the Appellant lied to the healthcare professional about whether he had been taking drugs. If he had not lied it was likely that the healthcare professional would have altered the opinion which she formed as to whether his condition might have been due to drugs.

 

 

Armed forces; Administration of justice; Criminal procedure

 

Gunn v Service Prosecuting Authority

 

[2019] EWCA Crim 1470

 

By Paul Mason

 

 

A Court Martial trying an RAF officer is properly constituted even if none of the Board of lay members were RAF personnel. 

 

An RAF officer appealed against his conviction for battery by a Board containing Army personnel only. The Appellant relied upon the Queens Regulations for the RAF (“the QR”). This delegated legislation set out that an RAF defendant would “ordinarily be tried by lay members of wholly his own service”.  Consequently, it was argued an Army-only Board was a breach of the QR, akin to a breach of the Criminal Procedure Rules.

 

However, the CACD concluded that “ordinarily” meant what it said. “Ordinarily” did not mean “invariably”, nor did it amount to a mandatory rule to be followed in all cases.  Consequently,  a Board not comprised from the same Service as the defendant was not invalidly constituted, nor did it lack jurisdiction.  In dismissing the appeal, the CACD made it clear that their decision was not intended to undermine the usual practice of a Service defendant being tried by lay members drawn from his own Service.

 

The Court did not deal with the more complex question of whether in multi-service cases, the Board should comprise “a mixture of Service personnel from different Services”, as provided in the QR. Further, whether a single service Board in such case would be invalidly constituted and lacked jurisdiction.

 

 

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