By Paul Taylor
Private prosecution - Appeal against a terminating ruling – order for costs
D Ltd v A and others
CACD:  EWCA Crim 1604
CACD allowed the appeal of D Ltd and reversed the trial judge’s ruling ordering a stay of a private prosecution. D Ltd applied for costs against the defendants or out of central funds. CACD rejected argument that it should be from central funds and set out a number of factors which reduced significantly the costs awarded against the defendants, including: in a private prosecution it was not necessary for costs to correspond precisely with a public prosecution, but there should not be a significant disparity between the two.
Jury’s improper consideration of ABE transcripts
R v R
CACD:  EWCA Crim 1487
CACD allowed an appeal where ABE transcripts were mistakenly left in the jury room, and judge allowed the jury to retain them without giving a sufficient warning that they should not give disproportionate weight to the transcript. The CACD stated whilst it is material if the defence have consented to the jury having access to a transcript, it is not determinative of the ultimate question: whether the conviction is unsafe. Moreover, in this case the defence had not agreed to the jury having the transcripts in advance of retirement, but were dealing with the position after the transcripts had been made available by mistake.
Commentary: The CACD’s general approach to grounds asserting errors where trial counsel agreed to the impugned direction or approach, (or failed to object), is that it may be informative on the question of potential impact on the safety question. The Court will often investigate the basis for trial counsel’s stance, and in particular whether it was prompted by tactical considerations. However, trial counsel’s stance is rarely determinative of the safety question. As to the impact of trial counsel’s acquiescence in sentencing matters, see R v Reynolds and others CACD:  EWCA Crim 1455 in this month’s sentencing case summaries.
Inviting “support” for a proscribed organisation
R v Choudhary and another
CACD:  EWCA Crim 1606
There had been an appeal against a preparatory ruling as to the meaning of “support” in section 12(1) Terrorism Act 2000. The CACD had upheld the judge’s ruling -  EWCA Crim 61 - but certified two questions of law for the Supreme Court. However, the Supreme Court refused leave. The applicants were then tried and convicted and sought leave to appeal against the convictions. The CACD refused leave, partly on the bases that the grounds invited the Court to substitute its view of the facts for that of the jury, and/or to go behind the previous CACD decision.
Admissibility of absent witness’ evidence – directions on hearsay
R v Kiziltan
CACD:  EWCA Crim 1461
The trial judge had admitted the hearsay evidence of the main prosecution witness when he failed to attend the trial. The CACD quashed the conviction for kidnapping because the judge had failed to adequately remind the jury of the evidence about why the witness had not attended. This was important in the context of the defence case of collusion. The error was exacerbated by the judge’s failure to give the reasons for his initial decision to allow the hearsay evidence to be admitted until after the summing up, which meant that counsel were unable to tailor their closing speeches to the ruling.
CASE SUMMARIES: ENGLAND AND WALES
APPEALS AGAINST SENTENCE
Prosecution appeal – confiscation order - value of benefit – provisions for enforcement
R v Reynolds and others
CACD:  EWCA Crim 1455
CPS appealed to the CACD against the valuation of benefit and the provisions as to enforcement of a confiscation order. The proceedings arose out of corruption in public sector contracting. The CACD reviewed the legal framework (POCA, Waya, Harvey). It held that the Judge’s rulings contained errors of law and could not stand, even though “at least some of his conclusions were acquiesced in by all concerned.”
Diminished responsibility – Hospital orders – Custody for Life – Conflicting medical evidence
R v Mehmet Bala
CACD:  EWCA Crim 1460
In 2006 B had deliberately pushed a stranger in front of an underground train. B was charged with murder, but the Crown accepted a plea to manslaughter on the basis of diminished responsibility. At the sentencing stage, the judge was presented with conflicting medical evidence as to the diagnosis and the appropriateness of a hospital order. [The dispute was whether B was suffering from paranoid schizophrenia or a personality disorder, whether the latter was treatable, and whether the symptoms of psychosis had been a significant cause of B’s offending behaviour.] The psychiatrist at Broadmoor Hospital did not support a hospital order and so did not offer a bed.
The grounds of appeal contended that the sentence was wrong in principle and should have been a hospital order. B relied on fresh psychiatric evidence in support. The diagnosis was that he suffers from schizophrenia and a personality disorder, and did so at the time of the offence. One of the new psychiatrists “was asked to consider and report upon the extent to which the schizophrenia had caused the appellant to commit the offence.... he said that “although the appellant's mental disorder had not rendered him not guilty by the reason of insanity, he still was able to have a defence of diminished responsibility, a psychiatric defence.” He added, “It could be concluded that his offending was at least partly attributable to his mental disorder.” The CACD accepted this part of the evidence. However, the appeal was then rejected on the bases that:
- In R v Vowles  EWCA Crim 45, at paragraph 54, “the court described the situation in which a section 37/41 order is likely to be the correct disposal in a case where a life sentence is being considered. It is that 1) the mental disorder is treatable 2) once treated there is no evidence the offender would be in any way dangerous, and 3) the offending is entirely due to that mental disorder.”
- “In this case the new evidence does not demonstrate that the offending was entirely due to the mental disorder. We are quite satisfied, on the evidence available at the time and the more recent evidence, that the appellant's behaviour when committing the offence was affected by both mental illness and his personality disorder. On the face of it therefore this case did not come within the situation described as likely to lead to a section 37/41 order as described in Vowles.”
- “To that we would add the reminder in Vowles that consideration should be given to whether the powers of the Secretary of State under section 47 to transfer a prisoner for treatment would, taking into account all the other circumstances, be appropriate.”
- “We are satisfied therefore that even on the fresh evidence the judge could not have concluded, “ that hospital order was “the most suitable method of disposing of the case”
- “The real purpose of this appeal was to move the appellant from the release regime consequent upon a life sentence to the regime consequent on a hospital order. That is not a proper basis for an appeal if the original sentence was not wrong in principle. There are some, relatively few, cases where medical evidence obtained years after sentence convincingly demonstrates that the sentencing court proceeded on the wrong basis because of an error by an expert – see eg R v Ahmed  EWCA Crim 670. On analysis that is not this case. The sentence was not wrong in principle.
Commentary: The CACD’s approach to the substitution of hospital orders for prison sentences has changed fundamentally in recent years, and a number of previously accepted principles have been overturned. No longer is a hospital order seen as the appropriate disposal in homicide cases where there is some or even a significant connection between the offending and the mental disorder. The test now appears to require a finding almost akin to that of insanity. This is likely to result in imprisonment for many offenders for whom hospital is the humane disposal - and where they will be treated as patients rather than prisoners - and for whom imprisonment is clearly inappropriate. The Court’s recognition of the Secretary of State’s power to transfer such a prisoner administratively should not be seen as a substitute for a court passing an appropriate sentence in each case. In any event, transfers can be notoriously slow and the delay can often result in a decline in the offender’s mental health.
Moreover, where there is fresh medical evidence relating to a hospital order the question for the Court was not previously whether the original sentence was “wrong in principle”, but whether, in light of the new material, the Court considers “that the appellant should be sentenced differently for an offence for which he was dealt with by the court below” (section 11(3) Criminal Appeal Act 1968). As Scott-Baker LJ stated in Beatty  EWCA Crim 2359, “Plainly the subsection is sufficiently wide to permit the court to re-sentence the appellant on information placed before it which was not put before the sentencing judge.” It is submitted that the statutory test in section 11(3) remains the correct one in these cases.
The Court in Beatty also recognised the value of an appeal which resulted in a “regime change” without more when considering Technical Lifers; that being “the unequivocal placement of someone who is mentally disordered into a regime of expert medical care from which he can progress, if it becomes appropriate, into a less secure regime under proper supervision and safeguards”.
It is noteworthy that Beatty was not referred to in Vowles or Bala
Sexual Harm Prevention Order – Sexual Offences Prevention Order – Subsequent change in the law’s approach
R v McLellan ; R v Bingley
CACD:  EWCA Crim 1464
In McLellan the CACD considered whether a SHPO without limit of time was manifestly excessive (or disproportionate) and wrong in principle, and whether they should be limited to the statutory notification period. The Court made observations as to the correct approach to the correlation between the duration of SHPO’s and notification requirements.
In Bingley the CACD considered the interrelationship between the terms of a SOPO and the post-release IPP licence conditions.
The CACD considered the effect of post sentence authority on an appeal against sentence and “whether the subsequent guidance.. entitles or obliges this Court to extend time (by a decade or thereabouts) so as to re-open the decision to impose a SOPO, properly made at the time...In Bingley, we are asked to extend time to quash a decision, properly open to the Judge to make at the time, in the light of the changed direction subsequently taken by the law. ...As a matter of principle, considerations of finality tell against extending time so as to re-open decisions in cases such as this — and finality is a consideration of the first importance in criminal law, as it is in other branches of the law. Moreover, as a practical matter (and one not to be belittled), it is very relevant that a decision to extend time in the present application and now to hold that the SOPO should never have been made, will, in every likelihood, generate a significant number of similar applications in respect of historic SOPOs. The Courts have generally been wary of adopting such a course, as illustrated in the area of "joint enterprise" convictions where applicants have sought to rely on the retrospective effect of the Supreme Court decision in Jogee  UKSC 8;  2 WLR 681 . Thus, to justify an appeal brought out of time, "substantial injustice" must be shown: Jogee , at ; see further: R v Johnson (Lewis)  EWCA Crim 1613;  Crim L.R. 216 . So too, the demise of sentences of IPP has not resulted in this Court extending time for applications for leave to appeal where IPP was imposed in circumstances when it was properly open to the Judge to pass such a sentence: Roberts  EWCA Crim 71;  1 WLR 3249 , esp., at .
Where, however, substantial injustice can be demonstrated if a particular sentence is left in place, then considerations of finality and concerns as to "floodgates" may have to give way. Unless unavoidable, the law does not countenance substantial injustice. That said, if substantial injustice is found here, the question may then arise as to the appropriate remedy — and, in the present context, whether the answer is to give leave for an appeal to this Court or to indicate that the proper course is by way of an application to the Crown Court to discharge or vary the terms of the SOPO. 
Commentary: So called “change of law” appeals raise fundamental questions about the role of the CACD in relation to both convictions and sentences. In 2007 Professor Ormerod set out the battle lines of the debate in the following way: “…At a principled level, defendants convicted under one interpretation of the law will feel rightly aggrieved if they languish in prison when others who have committed identical acts are acquitted because the courts have subsequently adopted a more generous interpretation of the offence…” However, he also pointed out that “At a practical level, if every change in the law led to all the old convictions secured under it being open to appeal the criminal appeals system would grind to a halt….”  Crim LR 383. The reality is that the CACD’s approach veers between these two levels. See most recently Johnson and Garwood  4 WLR 104 for a restrictive interpretation of the already narrowly stated Jogee decision, and compare with Lord Bingham’s approach in Derek Bentley  1 Cr App R 21 in which the CACD reviewed the safety of a conviction recorded over 45 years earlier. Lord Bingham noted that “Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this….” [Paras 4 and 5]
Conspiracy to rob – local prevalence of type of offending as aggravating factor
R v Ali & El-Guarbouzi
CACD:  EWCA Crim 1594
The grounds of appeal contended that the judge incorrectly identified prevalence as a factor justifying an increase in sentence. The CACD stated that its task was to consider whether the sentences were manifestly excessive, and having analysed the aggravating features of the offences the Court stated that “strongly deterrent sentences” were called for, “regardless of any element of local prevalence.”
Commentary: This case provides a recent example of the CACD’s approach to sentence appeals in which it is argued that the sentencing judge erred by considering an irrelevant factor, or failing to consider a relevant one. The ultimate question for the Court is whether, irrespective of the alleged error, the resulting sentence was manifestly excessive, wrong in principle or unlawful.
Dangerousness – psychological harm – mobile phone texts
R v Wagstaff
CACD:  EWCA Crim 1601
W pleaded guilty to attempting to incite a child to engage in sexual activity. The CACD stated that whilst he had not yet committed a contact offence, the concern was that this may well be the next step. The Court rejected the argument that the kind of harm caused by sexual texting would not constitute serious psychological harm.
Attorney-General’s Reference – leave granted – Sentence left unaltered
CACD:  EWCA Crim 1570
The CACD granted leave to appeal against a sentence of imprisonment for causing death by dangerous driving. It was argued that the sentence of 6 years after a guilty plea was unduly lenient. The Court stated that the judge may have been somewhat generous in awarding full credit for a delayed guilty plea, and that “The figure demonstrates a degree of leniency in the sentence imposed.” However, “it is not of an order which could render the sentence unduly lenient”. The Court did not interfere with the sentence.
Commentary: The term “unduly lenient” (like “manifestly excessive”) is not always easy to discern. During the passage of the Criminal Justice Bill in 1988 Douglas Hurd, then Home Secretary, spoke of “manifestly over-lenient sentences”, suggesting a particularly high threshold before the CACD would interfere. In practice, the CACD appears to interfere when the sentence in question represented a substantial departure from the norms, or which fell short by a very substantial margin, and where a failure to increase the sentence would affect the public perception of the administration of justice.
If you have questions about any of these cases please do get in touch with Paul Taylor.