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Paul Taylor
Paul Taylor

Welcome to the July edition of our Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure 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. 

 

In this edition, Emma Goodall analyses the CACD’s approach to indictment errors as a potential ground of appeal. I look at recent decisions including those dealing with jury irregularities, post-Jogee appeals, inappropriate judicial behaviour during a trial, the impact of a sentence on the children of the offender, and dangerousness in extended sentences. Tim Moloney QC sets out a detailed summary of the recent NICA decision on the incompatibility of the NI abortion laws and the ECHR.


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.

 

As ever we take your privacy seriously - if you wish to unsubscribe please use the link at the bottom of this e-mail.  We never share your details with other organisations.

 

We hope that the articles are of interest to you.  And we would very much like to hear your feedback on the bulletin - do please call or e-mail.   

 

Paul Taylor

Head of the DSC Criminal Appeals Unit


Welcome to the July edition of our Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure 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. 

 

In this edition Emma Goodall analyses the CACD’s approach to indictment errors as a potential ground of appeal. I look at recent decisions including those dealing with jury irregularities, post-Jogee appeals, inappropriate judicial behaviour during a trial, the impact of a sentence on the children of the offender, and dangerousness in extended sentences. Tim Moloney QC sets out a detailed summary of the recent NICA decision on the incompatibility of the NI abortion laws and the ECHR.


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.

 

As ever we take your privacy seriously - if you wish to unsubscribe please use the link at the bottom of this e-mail.  We never share your details with other organisations.

 

We hope that the articles are of interest to you.  And we would very much like to hear your feedback on the bulletin - do please call or e-mail.   

 

Paul Taylor

Head of the DSC Criminal Appeals Unit

Feature Articles
Indictment Errors – Substance over Form
 

Emma Goodall discusses a case where errors in the indictment went unnoticed during the trial process.


R v Walker: R v Coatman [2017] EWCA Crim 392 is the latest in a line of exasperated judgments from the Court of Appeal addressing defective indictments where drafting errors went unnoticed during the trial process[1]. Although the authority demonstrates the Court’s continued resistance to technical and procedural grounds of appeal, it does provide a useful example of substance over form.

 

In separate proceedings, Mr Walker and Mr Coatman were charged and convicted with offences of gross indecency. The counts on the indictment were defective as the statement of offence erroneously pleaded an offence contrary to section 13 of the Sexual Offences Act 1956 (SOA 1956), which was time-barred.

 

The Court extracted five general principles from the authorities:

 

i.        The test for the Court remains one of safety of the conviction
ii.        There is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect. Procedural and technical points should be taken at the time of trial.

iii.       The question for the Court is whether the error in the indictment is a purely technical defect or whether the count itself is fundamentally flawed because it breaches rule 10.2 CrimPR 2015 in that it fails to identify sufficiently the legislation allegedly contravened.

iv.       The assessment of defects are a particularly fact sensitive issue.

v.       It is necessary to discern the true intention of the draftsman and the effect of the error upon the conduct of the trial.

 

In applying these principles a distinction was drawn between the merits of the two appeals.

 

In the case of Mr Coatman the CPS had intended to charge the offence of gross indecency, contrary to section 1 of the Indecency with Children Act 1960 (IWCA 1960) however the police charged offences, contrary to section 13 SOA 1956. This was replicated in the indictment and court record. Both offences were in error. The age of the complainant precluded a charge under Section 1 IWCA 1960 and a charge under section 13 SOA 1956 was time barred. The conduct alleged in fact amounted to an assault and should have been charged as an indecent assault, contrary to section 15 SOA 1956.

 

The prosecution, although conceding there were serious errors, invited the Court to take a purposive approach by directing the correction of the indictment and the court record to reflect an indecent assault conviction. That was a step too far for the Court of Appeal who held that this was not a mere technicality but a fundamental flaw which amounted to a serious error in substance. However the Court, recognising that if it quashed the convictions, it could not order either a re-trial, or substitute the conviction for section 15 SOA 1956 pursuant to section 3 of the Criminal Appeal Act 1968, instead declared the proceedings to be a nullity and encouraged the prosecution to make an application for a voluntary bill of indictment to institute fresh proceedings for offences of indecent assault.


Mr Walker fell on the other side of the line. He was originally charged with a valid offence contrary to section 1 IWCA 1960. The only error was in the statement of offence on the indictment which alleged a contravention contrary to Section 13 SOA 1956. The court record showed convictions pursuant to section 1 IWCA 1960. The trial was conducted on the basis that the appellant was accused of gross indecency with a child and the jury directed accordingly. In such circumstances, the Court of Appeal were satisfied that the error was one of form not substance and the appeal was dismissed.


There is an unedifying post script to this judgment where the prosecution provide apologies and assurances that steps have been put in place to prevent these particular errors being repeated. Although the prosecution are prepared to resource appeals, as in this case, through the instruction of Queens Counsel, insufficient attention is being paid at first instance. Just in the last twelve months I have experienced a number of glaringly defective indictments including time-barred offences and the indicting of a defendant from the age of nine. What is clear is that it is incumbent upon the defence to highlight these defects in order to avoid uncertain litigation on appeal.



[1] Recent examples include Rv Forbes [2016] EWCA 1388 ; R v  AD [2016] EWCA Crim 454 ; R v Boateng [2016]; R v Silverwood and Chapman [2015] EWCA Crim 2401; R v Clarke [2015] EWCA Crim 350; R v White [2014] EWCA Crim 714; R v Stocker [2013] EWCA Crim 1993


If you'd like to learn more about Emma Goodall please visit our website or if you have questions about any of these cases please do get in touch here

New Case Law
Appeals against conviction
Case commentaries by Paul Taylor


Seeking to re-open an appeal after a final determination

R. v Hockey (Terence John)


CACD: [2017] EWCA Crim 742

The CACD gave guidance on the procedure to be followed for making an application to re-open a criminal appeal where there had been a final determination based on the implicit jurisdiction identified in R. v Yasain (Mohammed Abdullah) [2015] EWCA Crim 1277, [2016] Q.B. 146.

Commentary: The general rule is that there is only “one appeal” before the CACD. Once there has been a final determination the only way back is via a reference by the Criminal Cases Review Commission. However, the CACD has an inherent jurisdiction to allow an appeal to be re-opened in exceptional cases and has done so in the past. This case set out a list of procedural requirements when making such an application pending the amendment of the Criminal Procedure Rules. The Northern Ireland experience has been similar to that in England and Wales (see Brown, Skinner and others [2016] NICA 40 where there was an unsuccessful attempt to re-open appeals against conviction following the Supreme Court decision in Jogee; but cf. R v Walsh [2007] NICA 4)

 

Post Jogee appeals and Jury irregularities

 

R. v Lansana (Stephen)


CACD: [2017] EWCA Crim 740

L applied, out of time, to amend his grounds of appeal against his conviction for murder to include a post Jogee ground in relation to the joint enterprise directions at trial in 2015. He also sought to renew his application for leave in relation to a juror irregularity at trial: during the trial a white juror had been arrested and cautioned for a racially aggravated public order offence. It was argued that because of the racial element in the trial (both applicants were black, the victims were of Lithuanian nationals) the whole jury should be discharged. The judge conducted a voire dire before discharging the juror involved. She declined to discharge the entire jury.

The CACD:

(i)              Refused permission to amend the grounds to include the joint enterprise ground on the basis that in light of the facts and the jury’s findings the pre-Jogee misdirection would not have made any difference.

(ii)            The Judge was in the best position to assess the juror issue and had dealt with it appropriately.

Commentary: When considering post Jogee appeals, and whether a “new law/Jogee” direction would have made a difference, the CACD will analyse what factual findings can be inferred from the jury’s verdict. In this case the CACD was emphatic in its findings: “the jury clearly concluded...” and certain evidence “could only lead the jury to conclude”. Whilst this follows the approach in Johnson, Green, Garwood and others [2016] EWCA Crim 1613, it may not always sit comfortably with the warnings given by Lord Bingham in Pendleton [2002] 1 WLR 72, paras 16 and 19.

In preparing for such appeals it is vital to set out what can and cannot safely be inferred from the jury’s verdict. It is submitted that where the Supreme Court has found that the previous law upon which a defendant was convicted was wrong, it is only in the most compelling cases that such conclusions should be inferred.


 

Removal of reporting restrictions for young offenders

R. v Markham (Stan Lucas)

(Also known as: R. v Edwards (Kim Rose))


[2017] EWCA Crim 739


M and E, both 14 years old, carried out the brutal murder of E’s mother and younger sister. The removal of reporting restrictions was a reasonable and proportionate measure because:

(i)              The facts of the case and sentencing remarks could not properly be understood without identifying that the appellants had murdered E's mother and sister.

(ii)            There was no new material to justify the conclusion that lifting anonymity would cause harm to either appellant or adversely affect their future rehabilitation.

(iii)          Notwithstanding that the appellants were now 15, the lifting of reporting restrictions was in accordance with law, pursued a legitimate aim, and was a reasonable and proportionate measure, properly balancing the appellants' welfare against ECHR art.10 rights and the interests of the public.


 

Judge’s behaviour during the trial

R. v M


CACD: 30 June 2017

M appealed against his conviction for attempted rape. At trial at one point in the cross-examination of M, the judge had intervened and then began a fresh, second extensive cross-examination of M. On appeal M argued that the judge's second cross-examination of him demonstrated bias.

The CACD dismissed the appeal despite finding that the submission regarding the judge's second cross-examination had real substance, and that the judge had "descended into the arena". It had been inappropriate: his critical tone had gone far beyond clarification. However, the question was whether the Judge’s actions undermined the safety of the conviction. The CACD concluded that it did not because M's evidence had been underwhelming and had crumbled under scrutiny.

Commentary: The CACD has quashed convictions on the basis of the trial judge’s inappropriate conduct, for example where the defendant has been prevented from presenting his case effectively, or where s/he belittles counsel in the eyes of the jury and indicates a pre-conceived belief in guilt. Each case will be fact specific. The ultimate question is always whether the Judge’s behaviour renders the verdict unsafe in light of all the other evidence. The CACD has refused to intervene in cases where the judge asked a defence witness “would you know the truth if it sat up and bit you?”, and in another where the judge accepted that he had nodded off on occasion during the trial and was woken by his own snores.


If you have questions about any of these cases please do get in touch with Paul Taylor

Appeals against sentence

Sentencing commentaries by Paul Taylor




Impact on children of the offender

R. v Bozkurt (Safak Sinem) (Attorney General's Reference (2017))

CACD: 22 June 2017

 

B was a prison officer who admitted smuggling drugs and mobile phones into a young offender institution in return for payment. She was the sole carer for two dependent children. She was initially given a suspended sentence. The Attorney General referred the sentence to the CACD on the basis that it was unduly lenient. The CACD held that whilst the sentencing court had to take into account the interests of B's children as a primary consideration, under both the common law and ECHR art.8, the legitimate aims of sentencing and the gravity of the impact of B's offending meant that an immediate term of imprisonment should have been imposed.

Commentary: See also R. v Shahadat (Zaydene) [2017] EWCA Crim 822 as to the supply of drugs in prison by a non-prison employee and R. v Markham (Stan Lucas) (Also known as: R. v Edwards (Kim Rose)) [2017] EWCA Crim 739 regarding the judge’s sentencing duties where the defendants are children.


 

Extended sentences and dangerousness

R. v Chiriac (Dumitru)

CACD: 22 June 2017

 

Two offenders had been found guilty of rape. Where neither offender had exhibited any pattern of sexual offending and there was no evidence that they continued to pose a significant risk the judge had erred in imposing extended sentences of 18 years' imprisonment. However, a determinate sentence of 13 years' imprisonment was not manifestly excessive.

Commentary: The Court noted that there whilst there are cases in which the offence itself indicates that the offender poses a significant risk – even when he is of good character – this was not one of them. [For examples of such offences see Attorney General’s Reference (R v Terry Smith) [2017] EWCA Crim 252; Attorney General’s Reference No 5 of 2011 (Troninas) [2012] 1 Cr App R (S) 20 – thanks to David Rhodes for identifying these authorities].


Use of newspaper reports as basis for sentencing levels

R. v Sandhu (Amandeep)

CACD: 21 June 2017

 

Sentencing for breach of health and safety regulations. It was not appropriate to use newspaper reports in court as evidence of sentences for similar breaches as they were not full or authorised reports of the cases.


If you have questions about any of these cases please do get in touch with Paul Taylor

Northern Ireland Appeal Case summary July 2017

This section of the Appeals Bulletin looks at the recent activity of the Court of Appeal in Northern Ireland.   Case commentaries by Tim Moloney QC


AG for Northern Ireland and the Department of Justice v The Northern Ireland Human Rights Commission

[2017] NICA 42

 

 

 

The Court of Appeal dealt with an appeal from the High Court by the Attorney General and Department of Justice against an Order made by Horner J on 16 December 2015 when he declared that sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945 were incompatible with Article 8 of the European Convention on Human Rights (“ECHR”) insofar as it is an offence:

 

(i)       to procure a miscarriage at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality;

(ii)      to procure a miscarriage up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest.

 

The proceedings followed the submission by the Northern Ireland Human Rights Commission (‘the Commission’) to the Minister of Justice, of advices which suggested that the law in the aforementioned provisions might be contrary to Articles 3, 8 and 14 of the ECHR. The Commission recommended that the law in Northern Ireland should be amended to provide for termination of pregnancy on grounds of rape, sexual abuse (incest) and in cases of serious malformation of the foetus.

 

In August 2014 the Minister of Justice wrote to the Commission stating that he intended to present a consultation paper to alter the law on abortion so that women might choose to terminate their pregnancy in circumstances where a lethal abnormality of the foetus had been diagnosed.  The consultation would also seek views on how to address the issue of legalising abortion for pregnancies resulting from sexual crime. On 20 October 2014, the consultation document was issued. Shortly thereafter, on 7 November 2014, the Commission sent a pre-action letter to the Department of Justice. It stated that unless the Department brought forward legislation to allow for unlawful termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest, it would commence proceedings. The Department responded on 1 December 2014 indicating that in light of the ongoing consultation process any proceedings were premature and ill-founded.

 

The Commission issued its judicial review on 11 December 2014.  It sought the following relief:

 

(a)      A declaration pursuant to section 6 and section 4 of the Human Rights Act 1998, that sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with Articles 3, 8 and 14 of the ECHR as they relate to access to termination of pregnancy services for women in cases of serious malformation of the foetus or pregnancy as a result of rape or incest;

 

(b)      A declaration that, notwithstanding the provisions of sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest;

 

(c)      Further and in the alternative, a declaration that the rights of women in Northern Ireland, with a diagnosis of serious malformation of the foetus or who are pregnant as a result of rape or incest, under Articles 3, 8 and 14 ECHR are breached by sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945.

 

Upon appeal from the order of Horner J, the Attorney General and the Department Justice took a preliminary point that the Commission had no standing to pursue the application. The Court unanimously rejected that argument and held that the Commission did have the requisite standing [see paras. 7 to 46].

 

In reaching its decision, the Court carried out an extensive review of the domestic and Strasbourg jurisprudence. The Court also received evidence from various sources as to the adverse effects on women of the operation of the current legal framework. It unanimously agreed that it must allow the appeal in relation to the relevant findings of Horner J in that:

 

(i)              the failure to provide exceptions to the law prohibiting abortion in respect of lethal foetal abnormalities at any time and pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother was not contrary to Article 8 of the Convention; and,

 

(ii)             Sections 58 and 59 of the Offences Against the Person Act 1861 and Section 25 of the Criminal Justice Act (NI) 1945 are not incompatible with Article 8 of the Convention.

 

Indeed, giving the leading judgment of the Court, Morgan LCJ said [76]:

 

“In light of the wide margin of appreciation recognised by the European jurisprudence and the decisive vote within the Assembly I do not consider that it is open to the courts to derive a right to abortion from the Convention. I would not, therefore, make a declaration of incompatibility and would allow the appeal on that issue”.

 

 

There was some disagreement, however, on the interpretation to be accorded to the meaning of ‘unlawful’ when procuring a miscarriage in sections 58 and 59 of the 1861 Act. It was agreed that the ratio of Bourne [1939] 1 KB 687 continued to define that term for the purposes of the proceedings.  In that case, the jury was directed that the burden rested on the Crown to satisfy them beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. They were further directed that the words "for the purpose of preserving the life of the mother" had to be understood in a reasonable sense so that if the doctor was of the opinion on reasonable grounds with adequate knowledge that the probable consequence of the continuation of the pregnancy would be to make the woman a physical or mental wreck, the jury were quite entitled to take the view that the doctor operated for the purpose of preserving the life of the mother. Morgan LCJ said that it was necessary for the term ‘physical or mental wreck’ to be considered in a more contemporary context. He observed:

 

[78]    The position of women in our society some 80 years after Bourne has altered beyond all recognition.  It was as a result of judicial intervention that women were protected from sexual abuse within marriage (R v R [1992] 1 AC 599).  Discrimination in employment and the provision of services required substantial legislative intervention.  The place of women within the professions and other areas of public life has changed enormously and is still evolving.  That is evident in both the judiciary and politics. All of these matters have accordingly altered the scope of the right to personal autonomy and development of women in this jurisdiction.

 

[79]    I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase "for the purpose of preserving the life of the mother" cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck.  I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT.  Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in paragraphs [16]-[31].  The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy.  In my opinion that requires the court to determine what is reasonably tolerable in today’s society.  That is not to be defined by the values of the 1930s.  I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test.  I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open.  That conclusion is not dependent upon the state of health of the foetus”.

 

 

Gillen LJ and Weatherup J disagreed with that approach. Gillen LJ said [92]:

 

“In summary, my view is that it is institutionally inappropriate and a reach too far for this court to change the effect of the relevant legislation and its interpretation in R v Bourne [1939]1 KB 687, which has stood the test of time in this jurisdiction, without legislative intervention.  If the law on abortion is to be changed, we should follow the precedent set by England when the position as interpreted in Bourne was altered by the 1967 Abortion Act as later amended by the Human Fertilisation and Embryology Act 1990.  In terms the permissive provisions of the 1967 legislation protected against an offence under Sections 58 and 59 of the 1861 Act by affording a circumscribed basis for termination after careful consideration by the legislature.  Such a change is not a task that should be taken up by this court.” 

 

And, Weatherup J stated [119]:

 

“I am unable to agree with Morgan LCJ that the legislation may be interpreted in a manner that admits of additional grounds for termination of pregnancy by redefining the meaning of “unlawful” in the Offences against the Person Act 1861”

 

 

The Commission submitted that if the Court was not to uphold the declaration of incompatibility, it should make a declaration that an abortion is lawful in particular circumstances. The Court rejected that submission. The Lord Chief Justice recognized that a  legislative solution might see a right to abortion available in many cases of sex crime or where there is no likelihood of foetal survival. But he took the view that the legislative process would require consultation and engagement in particular with medical practitioners and the police in cases involving distressed victims of rape.  He considered that the making of a declaration in the terms sought by the Commission would effectively amount to judicial legislation. Instead, he would prefer to see this matter determined by Government. But he sounded something of a warning shot in saying that if there is no provision made for a practical and effective method of securing rights for those entitled to them, the court may still have a role.


If you'd like to learn more about Tim Moloney QC please visit our website or if you have questions about any of these cases please do get in touch here

 

In Other News...
Expert Witnesses in Homicide Cases - Seminar video
 

Watch Siobhan Grey QC give a guide to instruct expert witnesses in homicide cases


On Thursday 22 June we hosted a seminar about Expert witnesses in Homicide Cases and recent developments in Psychiatry and Pathology. 


Watch the short video of the seminar here

If you have a question about the seminar or how we can help with issues you are facing in this area, email Maurice MacSweeney