Sexual Offences Prevention Order changed to Sexual Harm Prevention Order– wrong order issued by Court – defendant wrongly breached and convicted at trial before mistake realised. Conviction quashed on appeal.
R v David Michael Garrity
 EWCA Crim 788
By Maryam Mir
The appellant (“DG”) was granted leave to appeal out of time in circumstances where he had been wrongly convicted of breaching his Sexual Harm Prevention Order.
DG was convicted in 2010 for making and possessing indecent images of children contrary to s.1 of the Protection of Children Act 1978 and s.160 of the Criminal Justice Act 1988. He was sentenced to two years imprisonment and a Sexual Offences Prevention Order of indefinite duration was imposed.
In 2017, DG pleaded guilty to, again, making indecent photographs of children and breaching the Sexual Offences Prevention Order, contrary to section 103I(1)(a) of the Sexual Offences Act 2003. He was, again, sentenced to two years imprisonment. The judge replaced the existing Sexual Offences Prevention Order with a Sexual Harm Prevention Order, also of indefinite duration.
Unfortunately, when the Sexual Harm Prevention Order was processed and sent out by the Crown Court, it was based upon an earlier draft and purported to prohibit the applicant more extensively from certain acts than the order the judge had made.
In 2018, having been released from prison into a hostel accommodation, DG was found to be in possession of an MP3 player and a mobile phone. He had not notified his police offender manager about these and was reported to the police. When questioned in interview he stated that he did not appreciate that the two electronic items were covered by the terms of the Sexual Harm Prevention Order and in any event, he was unaware of the identity of his police offender manager. On the basis of the order sent out by the Crown Court, he was charged with two breaches as a result. The actual order made by the judge in 2017 had not prohibited him from possessing these items. DG went through a trial, where the error was not realised. His defence, the same as he had said in interview, meant the only issue for the jury to determine was whether he had a reasonable excuse. He was duly convicted.
Subsequently the mistake was realised and the correct order issued. Emphasising the need for diligence from all parties and quashing the conviction, the court ruled it is the order made in court by the judge which is the lawful order (see R v Watkins  1 Cr App R (S) 6). The appellant ought not to have been convicted of the two offences of breaching the Sexual Harm Prevention Order.
Paragraphs 17-21 of the judgment deal with justifications for orders of an indefinite nature and sentencing. Relevant considerations to the duration of the order being indefinite are the existence of previous relevant convictions and breaches of previous orders.
This case highlights the importance for all parties to ensure that the wording of any order made by the judge is properly reflected in the terms provided by the court when issuing the order; it must not be taken for granted that they will be the same. The mistake of the court in issuing the wrong order led to a series of further errors that went unnoticed until after the appellant was wrongfully convicted.
Whilst the court in this case stated that the duration of the order was justified, relevant considerations on which submissions can be made about indefinite orders being oppressive include the existence (or lack thereof) of relevant convictions and breaches to previous orders.
Rape- sexist WhatsApp messages- reasonable belief in consent- inconsistent verdicts;
Alex Hepburn v R
 EWCA Crim 820
By Farrhat Arshad
AH appealed against his conviction on one count of Rape (oral). He had been acquitted of another count of Rape (vaginal - occurring immediately after the first count) against the same complainant arising out of the same incident.
The appeal was brought on two grounds: (1) That WhatsApp messages showing AH’s sexist attitudes to women and revealing the existence of a game between those on the WhatsApp group to have sex with as many women as possible before a certain date should not have gone before the jury as they were irrelevant and prejudicial. It was further argued that cross-examination on the messages was unfair and the judge’s warning to the jury not to judge the appellant’s morals and attitudes towards women was inadequate; (2) The acquittal on the vaginal Rape was inconsistent with the conviction of oral rape as consent was the issue in respect of both counts.
In upholding the conviction the CACD (Lord Burnett of Maldon, LCJ, Murray J. and Sweeney J.) held that the WhatsApp messages were relevant and were admissible pursuant to both gateway 101(1)(c), important explanatory evidence, and gateway 101(1)(d), important matter in issue. The CACD disagreed that the judge did not properly consider the prejudice to AH. The warning the judge had given the jury that AH was on trial for Rape not sexism was adequate.
As to Ground (2), the complainant maintained that she was asleep when AH penetrated her mouth with his penis. On her account she then awoke but believing AH was her boyfriend, JC, continued with the sexual activity which eventually led to count 2. It was argued on AH’s behalf that a jury question as to the reasonableness of genuine belief in consent meant that in going on to consider whether AH’s belief in consent was reasonable, the jury must have concluded the complainant was not asleep when count 1 began. The CACD rejected that analysis stating that there was a danger of over-analysing a jury’s note with a view to discerning a common view amongst its members and “a note may not illuminate with certainty where in a process of reasoning the jury has reached.” In this case it was entirely possible that some, or even all but one, of the members of the jury were sure that the complainant was asleep when the sexual activity started and as such there could not have been any genuine belief in consent as to count 1. However, even if one started from the premise that the complainant was awake at the outset, on the facts the jury could be sure she did not appreciate that it was the appellant with whom she was having sex at the beginning, and that he had no genuine and reasonable belief that she was consenting, but that things might have changed the longer the sexual contact went on and it was at least possible that by the time vaginal intercourse started the jury's conclusion about the appellant's belief and whether it was reasonable was different. The verdicts were not logically inconsistent. The conviction was safe.
Multiple hearsay “confession” evidence- Pros failure to comply with Criminal Procedure Rules- Historic allegations
Alec Smith v R
 EWCA Crim 777
By Farrhat Arshad
AS appealed against his conviction of indecent assault. The offence was said to have been committed some 48 years before trial. In her ABE interview the complainant alleged that AS, her then neighbour, had indecently assaulted her when babysitting one night when she was aged 8. She stated that as soon as her parents returned home she told them what had happened. She stated that shortly afterwards her mother told AS’s wife and her mother told the complainant that AS had admitted the touching. The Prosecution had not made an application to adduce this multiple hearsay evidence of a confession. The allegation of a confession was not edited out of the ABE and went before the jury. Further, evidence from the complainant’s sister that their mother had told her that AS had confessed was also allowed to go before the jury.
In quashing the conviction, the CACD (Irwin LJ, Holgate J and Linden J) agreed that the evidence given by the complainant of the “confession” by AS to his wife was multiple hearsay within the definition of s 121 (1) and (2) of the Criminal Justice Act 2003 and was not admissible pursuant to that section as AS’s former wife, to whom the confession was allegedly made, was a competent, compellable and available witness. The CACD denigrated the Prosecution’s failure to apply the Criminal Procedure Rules and make a written application to adduce the hearsay evidence, commenting that, “The Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem” (at para 50 of the judgment). The Defence failure to edit the multiple hearsay out of the ABE did not excuse the Prosecution failure – the notice requirement was not waived by Defence silence.
As the evidence had the capacity to act as confirmation of the guilt of the appellant and should not have been admitted the conviction was unsafe and would be quashed. The CACD further held that as it was 50 years since the alleged offence and as a non-custodial sentence had been passed, it was not in the interests of justice for there to be a re-trial.
Victim of Human Trafficking; Cannabis Production; s. 45 Modern Slavery Act 2015; Reversal of Competent Authority’s “Conclusive Decision”; Fresh Evidence
S v R
 EWCA Crim 765
By Farrhat Arshad
In 2017 S had pleaded guilty to production of a controlled drug of class B and was sentenced to 12 months’ imprisonment. He was a “gardener” at a grow house in Preston. At all material times S had maintained that he had been trafficked into the country and told he must work at the grow house to pay off his debt. At the time he entered his guilty plea, the “Competent Authority” had made a “Conclusive Decision” that he was not a victim of human trafficking. His solicitor had taken the view that this was conclusive on the issue and therefore he had no defence to the criminal charge. Subsequent to his conviction the applicant challenged the Competent Authority’s decision and made further representations. In December 2018 the Competent Authority reversed its earlier decision and found that the applicant was the victim of trafficking. He sought leave to appeal out of time and sought leave to adduce fresh evidence.
The CACD (Singh LJ, Holgate J. and HHJ Lucraft QC, Recorder of London) allowed the Appeal: R v Joseph  1 WLR 3153, set out the key principles for such cases. As per Joseph at para 40 a so-called “Conclusive decision” of the Competent Authority whilst a view to be borne in mind was not conclusive for the purposes of criminal proceedings (at para 20 of judgment). As per R v DS  EWCA Crim 285, the result of the enactment of the 2015 Act and the section 45 statutory defence was that it was no longer necessary for the courts to fill any perceived gaps by expanding the notion of abuse of process. The question whether the section 45 defence was made out, or more accurately whether the prosecution had proved that it was not made out was a question of fact for the jury to decide. Furthermore, it was apparent from the words of section 45 that the statutory defence does not arise automatically simply because a person was the victim of trafficking. In addition, there are other elements of the defence, for example the need for compulsion which is attributable to slavery or a relevant act of exploitation.
As for setting aside pleas of guilty, R v Asiedu  2 Cr App R 8, re-affirmed the principles on which a defendant may be permitted to go behind a plea of guilty. The Court emphasised that the trial process was not a “tactical game”: A defendant who has admitted facts which constitute an offence by an unambiguous and deliberately intended plea of guilty cannot ordinarily appeal against conviction. Leaving aside pleas which are equivocal or unintended, there are two principal exceptions to this: (1) the plea was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury; (2) Even if on the admitted or assumed facts the defendant was guilty, there was a legal obstacle to his being tried for the offence. This would apply where his prosecution would be stayed on the ground that it was offensive to justice to bring him to trial. However, although Asiedu set out the main exceptions, it was clear from earlier authority that the jurisdiction was a more general one, derived ultimately from section 2(1) of the 1968 Act, whether the conviction was safe.
There were conflicting witness statements from the applicant’s trial solicitor such that it was not clear whether the applicant fully appreciated that he could mount his defence under section 45 before a jury notwithstanding the negative view of the Competent Authority. The CACD held that in the “highly unusual circumstances” of the case this was one of those “most exceptional” cases where the applicant’s guilty plea would not be allowed to stand. The conviction was quashed.
The CACD was at pains to point out that the case was “highly unusual” and “most exceptional” but it has to be said that the issues which arose are likely to readily arise in trafficking cases where the decision of the Competent Authority is reversed or post-dates the criminal proceedings. Another interesting aspect of this case is the anonymity order purportedly made pursuant to s. 11 of the Contempt of Court Act 1981. That section allows a court to give directions prohibiting the publication of a name or matter that was withheld from the public in proceedings before the court (where the court had power to make such an order within the proceedings). It is not clear that the applicant’s name was withheld from the public in proceedings before the CACD (or the lower Court) and if it was withheld in the proceedings before the CACD or lower court pursuant to what power. Section 11 does not confer a standalone power to order anonymity.
Retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses
R v Carl Bater-James and Sultan Mohammed
 EWCA Crim 790
By Paul Taylor QC
The CACD considered various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. These issues frequently arise in the context of sexual offences as regards material stored on complainants’ mobile telephones, but they occur in a wide range of other circumstances. The CACD set out four issues of principle, initially in the form of a series of questions.
- The First Issue: Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications. When does it become necessary to attempt to review a witness’s digitally stored communications? When is it necessary to disclose digital communications to which the investigators have access?
67. There is no obligation on investigators to seek to review a witness’s digital material without good cause. The request to inspect digital material, in every case, must have a proper basis, usually that there are reasonable grounds to believe that it may reveal material relevant to the investigation or the likely issues at trial (“a reasonable line of inquiry”).
70. It is not a “reasonable” line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context…
75. We stress, therefore, that mobile telephones or other devices should not be obtained as a matter of routine by investigators from witnesses…
77. …a ‘reasonable line of enquiry’ will depend on the facts of, and the issues in, the individual case, including any potential defence. …if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device…
- The Second Issue: When it is necessary, how should the review of the witness’s electronic communications be conducted?
78. …there may be a number of ways this can be achieved without the witness having to surrender their electronic device. …it may be possible to obtain all the relevant communications from the suspect’s own mobile telephone or other devices without the need to inspect or download digital items held by the complainant. The investigator, furthermore, can potentially review the relevant social media posts of the complainant without looking at the individual’s mobile telephone, provided he or she is willing to provide a password.
79… an important question is whether a review of a discrete part of the digital record will suffice. ..putting focussed questions to the witness together with viewing any relevant digitally recorded information, and taking screen shots or making some other suitable record, may meet the needs of the case…
82. If detailed examination of a copy (a “digital download” or “digital device extraction”) of the device is necessary.. it may well be necessary to use search terms rather than an individual “page-by-page” inspection. It is wholly unexceptional for an individual’s personal content on messaging platforms such as WhatsApp to take up thousands or tens of thousands of pages of a mobile telephone download.
- The Third Issue: What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
It is necessary that the complainant is kept informed as to the use that is proposed to be made of the mobile telephone or other device and its contents, depending on the extent to which the witness wishes to be provided with updates.
- The Fourth Issue: What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of “downloading” the contents (in reality, copying) or permitting an officer to view parts of the device (including, inter alia, copying some material, for instance by taking “screen shots”)? Similarly, what are the consequences if the complainant deletes relevant material?
93. If a witness does not provide the investigator access to their mobile telephone or other device, it is important to look carefully at the reasons for this stance…If the witness maintains his or her opposition, the court may need to consider, if an application is made by the defendant, whether the proceedings should be stayed on the basis that it will be impossible to give the accused a fair trial (Warren v A-G for Jersey  UKPC 10;  1 AC 22 (at )). A highly relevant or determinative consideration will be the adequacy of the trial process, and whether it will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. This situation is analogous to the cases in which there is a complaint that the prosecution failed to secure relevant evidence or evidence has been lost.
95. An application can be made for a witness summons for the mobile telephone or other device to be produced. The witness in these circumstances will have the opportunity to make representations, to enable the court to assess his or her Article 8 rights under the European Convention on Human Rights (see R (B) v Crown Court at Stafford  EWHC 1645 (Admin);  2 Cr App R 34; …
97. If a prosecution witness deletes messages or other relevant items on their mobile telephone, their reasons for doing so, the timing of any such deletion, whether it followed any warning not to do so and (insofar as it can be ascertained) the nature of the material deleted will need to be considered carefully. Each case will turn on its own facts and particularly the assessment of the material that has been removed.
99….The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence.
Whilst the CACD guidance is primarily applicable to trial, it will be essential to have regard to it when seeking to appeal against a conviction. At that stage the questions that may arise include: Was this material available at trial but not disclosed? (If not, why not?) Is the material available now or has it been destroyed? If it is available, is the prosecution under an obligation to obtain and disclose the material post trial? This latter question may prompt a knee jerk refusal from the prosecution based on the Supreme Court decision in R (Nunn) v Chief Constable of Suffolk Constabulary  2 Cr. App. R. 22. The Supreme Court held that the prosecution’s duty of disclosure post conviction is far more limited than pre-conviction; prosecutors were obliged to disclose any relevant material which was not already known to the defendant and which might assist him in the proceedings, but such disclosure did not involve a re-performance of the entire disclosure exercise. There was no indefinitely continuing duty on police or prosecutors to respond to whatever enquiries the defendant might make for access to case materials to allow re-investigation.
Consequently, when seeking disclosure of electronic material held by prosecution witnesses at the appellate stage it will be wise to address each of the four issues in any request to the prosecution or application to the CACD.
Appealing against conviction based on guilty pleas – pleas obtained by judicial pressure – unrepresented defendant
R v Inkster
 EWCA Crim 796
By Paul Taylor QC
I pleaded guilty to three counts of breach of a non-molestation order.
The matter had initially been set down for trial. I was unrepresented. Following the luncheon adjournment on the first day he changed his pleas to guilty.
The primary ground in this appeal was that the appellant’s decision to change his pleas was not a voluntary choice. The pressure placed upon the appellant by the judge, which was the result of incorrect advice given by the judge, resulted in the appellant having no choice but to plead guilty. His freedom of choice having been so narrowed or removed, the pleas of guilty which the appellant subsequently entered are a nullity and should be set aside.
“31. We accept the respondent’s submission that the appellant is an intelligent and articulate man who had an understanding of the court process and engaged with it. That said, he is not a lawyer. He was without legal representation and in an unfamiliar environment. The appellant believed he had a defence but was being told by the trial judge, who he reasonably believed knew and understood the relevant law, that he did not have a defence and should not be pleading not guilty. The difficulty which the appellant was experiencing is captured in his first response set out at  above: “I don’t quite understand … the very complexity of it, … but my interpretation of reasonable excuse is that I have made every effort to comply with this to try and find solutions through the courts, the legal process …”. Compounding his difficulty was the fact that the judge ignored the defence of reasonable excuse upon which he knew the appellant intended to rely.”
34. Having carefully considered the transcript of the proceedings we have concluded that the judge’s interventions did place pressure upon this unrepresented appellant to plead guilty to the three counts contained in the indictment…As a result, the appellant wrongly believed that he had no defence to the three counts and would be found guilty. It follows, and we so find, that the guilty pleas which he subsequently entered do not represent a true acknowledgement of guilt.
35. We are satisfied that the judge’s uninvited interventions and the consequent impact upon the unrepresented appellant did create inappropriate pressure upon and improperly narrowed the proper ambit of the appellant’s freedom of choice. Accordingly, we find that the pleas of guilty entered to counts 1, 2 and 4 are a nullity. We direct that each plea is set aside and the convictions based upon the pleas are annulled.”
The appeal was allowed.
As to the question whether a guilty plea in such circumstances is a nullity or unsafe see the commentary by Paul Taylor in Criminal Law Review on R v McCarthy by clicking here and for commentary on R v Stromberg, please click here.
The CACD in Inkster went for both options: it found the guilty pleas to be a nullity and also that the convictions were unsafe.
If you would like to speak to Maryam Mir, Farrhat Arshad or Paul Taylor QC about these cases, please click here for Maryam, here for Farrhat and here for Paul.