Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

Welcome to the September 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 James Wood QC considers whether abuse of process in historic sex cases is dead?

 

Also in this edition:

  • Katy Thorne QC looks at coercive control and the Sally Challen appeal;
  • Farrhat Arshad considers the latest CACD decision in an appeal against a wasted costs order

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,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


Welcome to the September 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 James Wood QC considers whether abuse of process in historic sex cases is dead?

 

Also in this edition:

  • Katy Thorne QC looks at coercive control and the Sally Challen appeal;
  • Farrhat Arshad considers the latest CACD decision in an appeal against a wasted costs order

 

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,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
Is abuse of process in historic sex abuse dead?
 
James Wood QC
James Wood QC

James Wood QC considers whether abuse of process in historic sex cases is dead?


By James Wood QC

 

 

In this article James Wood QC considers some of the policy reasons which apparently lie behind an increasing willingness  in the Court of Appeal to overturn decisions of trial judge’s to stay proceedings on grounds of delay and loss of evidence, and their reluctance to find convictions unsafe where trial judges have declined to grant a stay.

 

In July this year in PR v R [2019] EWCA Crim 1225, a Court led by Lord Justice Fulford (the new Vice-President of the CACD) declined to interfere with a trial judge’s decision to allow a case of historic sex abuse to proceed, even though the time periods of delay were significant, and the loss of material substantial. On reading his judgment, many considered that it most likely spelt the end of any realistic hope of the use of the abuse application to achieve a stay of proceedings on grounds of loss of historic material as a realistic or sustainable remedy.

 

The similar earlier ruling in May of this year  in R v SR [2019] EWCA Crim 887, rejecting arguments seeking to overturn the trial judge’s discretion to allow a trial to proceed, in what the court described as a “troubling” case of loss of historic investigative material, when coupled with an apparent willingness to overturn a trial judge’s discretion to stay proceedings when potentially relevant mobile phone evidence had been lost as one “that was not reasonably open to him” (per Sir Brian Leveson (P) in R v E [2018] EWCA 2426, could all be seen as tantamount to an abolition of the jurisdiction, save in the most exceptional of circumstances.

 

In the 70’s, 80’s and 90’s such stays on grounds of loss of material were prevalent and common place when complainants in sex abuse cases came forward late. Indeed the claim of the most minor of potential evidential disadvantage to the defence could often lead to a stay on grounds of trial unfairness, even if the consequence was to lead to a denial of justice to victims.  As we moved through the millennium, judicial attitudes started to change. In 2001 Brooke LJ’s judgment in  R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 23, was to be a turning point, ruling that circumstances in which a trial would “inevitably be unfair are likely to be few and far between”, and that the criminal trial was well able to cope with arguments about loss of evidence. This change of approach coincided with an increase in public understanding of the long term personal damage caused to the victims of  child sex abuse, and of the factors of fear, oppression, repression, inhibition and immaturity which can credibly lead complainants to only feel able to address deeply painful and personal memories of abuse in middle age and later life.  This, coupled with the obvious deterrent effect on potential abusers of children, of knowing that their child victims will grow to adulthood, and when free from oppression from abusers, will be able to speak, and be allowed to give compelling evidence of childhood abuse after many years, have undoubtedly contributed to a further loosening of the tests of trial fairness formerly applied, and a greater reliance upon protective directions to juries upon the potential disadvantages to the defence of significant delay in the trial process.

 

Whilst our common law jurisdiction has historically relied on staying proceedings on grounds of abuse of process, in other codified European jurisdictions historic sex cases and aged prosecutions were prevented by perhaps unduly short statutory limitation periods for prosecuting offences. It is of note that our courts are not isolated in responding to changing attitudes and the “Me Too” era of historic allegations, by removing obstacles to prosecution which might prevent victims being heard. EU states have also been changing their laws by lengthening the limitation periods which tended to prevent the trial of historic abuse cases. Germany, for instance has revised it 20 year statutory limitation on sex offences to only apply after the victim has reached the age of 30, in effect meaning victims can complain up to the age of 50. In 2013 the Netherlands removed all limitation periods for serious sexual offences which carry a minimum sentence of 8 years. Similar changes are occurring further east, with Poland recently moving legislation to remove any limitation period for child sex offences.[1] So in this sense, what is occurring in our courts has an international consistency as the “Me Too” disclosures gather force.

 

It must be said, though, that the protections provided by the abuse jurisdiction in historic cases have not totally evaporated, and the trial process itself  can provide some protections if defence advocates take the opportunity to fully deploy the fact of the potential material which has been lost, and its potential impact on the trial, in order to raise doubt. In PR v R [2019] EWCA Crim 1225 1 Fulford LJ  reviewed the authorities (at paras 67-70) before citing Treacy LJ in R v RD [2013] EWCA Crim 1592 at para 71. He stated

 

“It is clear that imposing a stay in situations of missing records is not a step that will be taken lightly; it will only occur when the trial process, including the judge’s directions, is unable adequately to deal with the prejudice caused to the defence by the absence of the materials that have been lost. The court should not engage in speculation as to what evidence might have become unavailable but instead it should focus on any “missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case” (per Treacy LJ [67] above).”

 

It remains difficult, in the current climate, to imagine almost any circumstances where the trial process will not be able to cope with lost material. That being so, it remains unlikely the Court of Appeal will interfere when a trial judge rejects submissions seeking a stay, or where contentions are made that missing material renders historic convictions unsafe[2].

 

Even if successful at first instance, the Court of Appeal has shown a willingness to allow prosecution appeals where trial judges or justices have concluded that a stay should be granted. [3]

 

Advocates confronted with historic cases, whilst not abandoning abuse arguments, would be well advised to concentrate on fully and extensively deploying the extent of the lost material in front of the jury, and find ways of illustrating the impact that material might have had on the trial process. If this were done effectively, no doubt using hearsay provisions, then a jury will be more likely to give due weight to the arguments, and if trial judges seek to limit the scope of the exploration during the trial process, it may be the Court of Appeal will be more sympathetic, particularly as the directions of trial judges on delay are now required to invite the jury to consider the unfairness presented to the defence by the loss of material. Such a direction should be tailored so that juries understand that the evidence of what has gone missing, is clearly evidence in the proceedings which can properly be considered by them, in determining whether guilt has been established beyond reasonable doubt.



[1] https://www.dw.com/en/child-sex-abuse-how-long-do-the-statutes-of-limitations-run-in-the-eu/a-43659400

[2] See also R v Allan [2017 EWCA Crim 2396 where much of an initial investigation had gone missing).

 

[3] See for example DPP v Fell [2013] EWHC 562 (Admin).

 

If you would like to discuss this case with James Wood QC, please email here.

 

Sally Challen appeal
[2019] EWCA Crim 916
 
Katy Thorne QC
Katy Thorne QC

Katy Thorne QC looks at coercive control and the Sally Challen appeal.


By Katy Thorne QC

 

 

It was pretty difficult to miss the Sally Challen case in the news earlier this year. Her success was, of course important for her and her legal team.  But the case is also important for practitioners for two reasons. Firstly, because it continues the current trend of the criminal justice system towards a more nuanced approach when dealing with certain types of criminal behaviour. Secondly because it reinforces for appeal lawyers, the important role that a publicity campaign can play when trying to change the law. 

 

Sally Challen was convicted of murder in 2011, having killed her husband by striking him multiple times with a hammer she had brought with her to the scene, concealed in her handbag. The defence she ran at trial was one of diminished responsibility based on her depression.  Her conviction was quashed in March 2019, after the Court of Appeal heard fresh evidence from a psychiatrist who was of the opinion that the defendant was suffering from two previously undiagnosed mental disorders at the time of the killing, this evidence not having been available at trial.  

 

The Court, presided over by Lady Justice Hallett, decided that there was evidence of an abusive relationship and that, importantly, coercive control was capable of being relevant to the defences of provocation and of diminished responsibility. In Challen’s particular case the Court declined to make a finding of fact whether in fact the relationship rendered Ms Challen herself the victim of coercive control or whether, if she was such a victim, that impacted upon her responsibility for her actions (diminished responsibility) or upon her ability to exercise self-control (provocation). However, the Court did conclude that because neither the evidence of the two mental disorders nor the impact of the abusive relationship on such a person was available at trial, the conviction was unsafe.  The court ordered a retrial, but the CPS accepted that a diminished responsibility defence was likely to succeed and therefore accepted the plea to manslaughter on that basis. 

 

Thus, a legal rubicon was crossed, coercive control was accepted as being at least relevant to the defences of provocation and diminished responsibility.  Whether that particular constellation of circumstances will reappear in other cases remains to be seen, the Court expressed the view that it was an unusual case, but the Court of Appeal has, in the judgment, acknowledged the role that coercive control may play in a defence to murder. 

 

The result of the Challen case may be an alignment of the partial defences to murder with the recent introduction of the offence of coercive controlling behaviour in an intimate relationship (s76 Serious Crime Act 2015) and is perhaps part of a trend towards a more sophisticated analysis of human behaviour in the criminal justice system.  The reduced ability of some people to resist the will of others is increasingly recognised in relation to, for example, the sexual grooming of children, but has developed recently with prosecuting authorities reassessing their assumptions about the behaviour of complainants and suspects in complex situations such as child sex abuse rings and drug supply conspiracies.  Similarly, it has caused those who are victims of human trafficking or modern slavery to be treated as such as opposed to being prosecuted.  This trend is to be welcomed and it is sincerely hoped that the more nuanced analysis will prevent miscarriages of justice in the future.

 

This case will also remind appellate lawyers how a well organised media campaign goes hand in hand with success when trying to change the law.  Just for Kids have changed the landscape for children as witnesses and defendants; JENGbA was instrumental in pressurising the senior judiciary into rethinking joint enterprise; and Justice for Women and the Centre for Women’s Justice have played a pivotal role in changing the law for women who suffer sexual abuse or violence. Each organisation has pushed the boundaries in the law and managed to get public opinion behind each campaign and were assisted in their legal submissions by the impact of publicity.   The campaign for justice for Sally Challen is the latest example of how a change in the law becomes easier for the courts to swallow if there is support in the court of public opinion. 

 

 

If you would like to speak to Katy Thorne QC about this case, please email here.

 

Appeal against wasted costs order
 
Farrhat Arshad
Farrhat Arshad

Farrhat Arshad considers the latest CACD decision in an appeal against a wasted costs order.


By Farrhat Arshad

 

 

Wasted costs order made against counsel due to discharge of jury following Defence closing speech; judge failing to hear submissions from counsel before discharging the jury; appropriateness of adverse comments re section 28 YJCE Act 1999 restrictions in Defence closing speech

 

Le Brocq -v- Liverpool Crown Court

 

[2019] EWCA Crim 1398

 

 

The appellant barrister appealed against a wasted costs order made by a Crown Court judge pursuant to section 19A of the Prosecution of Offences Act 1985, following the discharge of the jury in a sexual offence case.

 

The judge had made the decision to discharge the jury after hearing Defence counsel’s closing speech.  In the judge’s view, the speech offended in two main ways: (i) by referring to the complainant as being in a sexual relationship counsel flouted the judge’s earlier ruling prohibiting any questions about that relationship being sexual, and (ii) it lambasted the procedure restricting the questioning of vulnerable and child witnesses, set out in section 28 Youth Justice and Criminal Evidence Act 1999, describing the restrictions as amounting to “a virtual emasculation of the Defence case”.  The judge found this conduct to fall within section 19A (3) (a) as, “improper, unreasonable or negligent act or omission.”

 

The CACD  allowed the appeal.  The Court held that the judge erred in finding that the evidence as to the complainant being in a sexual relationship was not before the jury.  The evidence was before the jury as the point had arisen in re-examination as the complainant’s explanation for admitted lies.  Whilst the judge had considered editing out those parts of the complainant’s evidence he had been persuaded by Prosecution counsel that the evidence should remain unedited as it was the complainant’s explanation for telling lies about that particular matter.  This evidence was therefore relevant evidence.  That being the case, the Defence were not then prohibited from mentioning the fact of the sexual relationship in the closing speech.  The Defence asserted that the relevance was that the relationship was an explanation for the 14 year old complainant’s knowledge of sexual matters.  Whilst the Court decried the particular way the point was put by counsel and what that potentially implied to the jury (one of the twin myths that section 41 was designed to avoid) it held that counsel had been entitled to mention the fact of the sexual relationship and its potential relevance.  Counsel’s conduct could not therefore be said to fall within section 19A as an improper, unreasonable or negligent act or omission.

 

As for the second of the judge’s complaints, the Court held that counsel’s attack on the section 28 safeguards should not have been made.  The judge was the guarantor of what was fair and once a decision had been made as to the appropriate parameters of fair questioning following a Ground Rules Hearing it was not open to counsel to suggest to a jury that the process was unfair.  It was not unreasonable for counsel to make the point that the Ground Rules procedure imposes some limitations on cross-examination which might otherwise have been proper, in the restrained way suggested in R v. Mahomud (Shuayb) [2019] EWCA Crim 667 (at paragraph 26) but in the present case counsel had gone beyond that.  However, the judge did not primarily base his decision to discharge the jury on this part of the closing speech, finding it “unreasonable and/or borderline improper”. The Court had no doubt that these inappropriate comments were capable of being ameliorated by a short, tailored direction.

 

In relation to the discharging of the jury, the Court was troubled by the judge’s failure to seek submissions from counsel, stating at paragraph 66: “We can think of no circumstances in which the judge should dispense with the need for canvassing the submissions of the parties before discharging the jury on account of something which has happened during the trial.”  In the event there was no need to discharge the jury and as such the wasted costs order should not have been made.

 

 

If you would like to speak to Farrhat Arshad about this case, please email here.