CRIMINAL EVIDENCE

A well-known celebrity had his conviction for a historic offence of indecent assault quashed where fresh evidence undermined the credibility of one of the key prosecution witnesses. However, the court upheld the offender’s convictions for another 11 counts of indecent assault.

[2017] EWCA Crim 1849

Twelve allegations of contempt of court were proved to the criminal standard where video surveillance evidence showed that a personal injury claimant had consistently lied in his particulars of claim, witness statements and interviews with medical and social care experts to falsely represent the extent of his continuing symptoms after he sustained injuries in a car accident.

[2017] EWHC 2772 (QB)

When deciding whether it was in the interests of justice to refer sentences imposed on offenders who had given assistance to prosecuting authorities back to the sentencing court pursuant to the Serious Organised Crime and Police Act 2005 s.74, consideration of the interests of justice involved an open-ended deliberation. Section 74(3) did not impose any constraints on how the prosecutor should approach the question.

[2017] UKSC 63

A conviction for kidnap was unsafe where the judge had failed to properly assess the reliability of the hearsay evidence of an absent witnesses.

[2017] EWCA Crim 1461

A conviction for murder was not rendered unsafe by fresh evidence from three witnesses. The jury had been satisfied that the defendant was solely and exclusively responsible for the activities involving identity theft and fraud against the deceased, and that the connection between those activities and the victim’s death established him as the only possible perpetrator of the murder. The evidence of the new witnesses could not have disrupted that conclusion and there was no possibility of a different outcome if the fresh evidence had been heard by any jury.

[2017] EWCA Crim 1414

Where it was asserted in any murder trial that both self-defence and loss of control arose, a rigorous evaluation of the evidence would be required before the issue of loss of control could be left to the jury.

[2017] EWCA Crim 1359

The court refused an application under the Criminal Justice Act 2003 s.76 to quash an individual’s acquittal for murder in light of new DNA evidence. Although the evidence was strong, the individual was detained in a high security psychiatric hospital and only had weeks left to live due to terminal cancer, such that a retrial would not be in the interests of justice.

[2017] EWCA Crim 1333

A conviction for two counts of penetrative sexual activity with a child under 16 was safe, notwithstanding the effect of the procedure under the Youth Justice and Criminal Evidence Act 1999 s.28 on the defence’s ability to cross-examination the victim.

[2017] EWCA Crim 1321

In refusing conjoined applications for permission to appeal against convictions for murder, the court considered a number of issues including the adequacy of joint enterprise directions in the light of R. v Jogee (Ameen Hassan) [2016] UKSC 8, the procedures for trials of young defendants in the Crown Court, and the compatibility of mandatory sentences of detention at Her Majesty’s pleasure with ECHR art.3 and art.5

[2017] EWCA Crim 1228

A conviction for sexual assault was quashed where evidence which supported the accused’s belief that his former wife had encouraged her sister to fabricate the allegations had not been before the jury. The fact that the accused’s former wife had not been called as a prosecution witness was irrelevant; the jury should have had opportunity to test that evidence.

A judge’s intervention and direction to the jury during defence counsel’s closing speech did not affect the safety of a defendant’s conviction. She ought to have put to counsel what she intended to say before she said it, and if she intended to criticise him in front of the jury, she ought to have raised that with him first. Overall, however, the summing-up was thorough and fair.

[2017] EWCA Crim 1174

The requirement for a defendant in a criminal trial to serve a defence statement was consistent with the Constitution of St Lucia and the right to a fair trial.

[2017] UKPC 26

Where four men had attacked another man by punching him and stamping on him, convictions against two of them for causing grievous bodily harm with intent under the Offences Against the Person Act 1861 s.18 were quashed and substituted with convictions for causing grievous bodily harm under s.20, as medical evidence not adduced until after trial strongly suggested that a blow from one of the others had caused the victim’s brain injury. The further evidence was demonstrably credible, it had been positively agreed and was highly relevant.

[2017] EWCA Crim 1325

Although it was not necessary to decide in the instant case, in terms of decisions made by the CPS under the Victim’s Right to Review scheme, the court was prepared to assume that a mistake of fact giving rise to unfairness, if made out, was capable of founding a claim for judicial review of a decision not to prosecute a suspect.

[2017] EWHC 1768 (Admin)

The court quashed a sentence of custody for life imposed in 2002 on a young offender for attempted murder. In the light of fresh psychiatric evidence, which confirmed that the offender had been suffering from a psychopathic disorder at the time of the offence, hospital and restriction orders were appropriate.

[2017] EWCA Crim 937

Justices had erred in admitting a complainant’s evidence by way of res gestae under the Criminal Justice Act 2003 s.118 where no inquiries had been made to find out why she had not appeared at court. It was not appropriate to proceed, on a first listed hearing, with an application to admit criminal evidence by way of res gestae without a proper inquiry.

A defendant considering bringing a criminal appeal in the State of Mauritius was entitled, on payment of the cost of providing it, to a copy of the digital record of the trial. If the appeal court was asked to listen to such a recording, it was fully entitled to insist that that request was justified by counsel on behalf of whichever party had made the request.

[2017] UKPC 16

In a criminal trial, a witness displaying signs of distress was not necessarily to be treated as a vulnerable witness. Requiring an advocate to prepare a list of questions for the court’s approval during cross-examination where a witness was distressed should be regarded as an exceptional course.

[2017] EWCA Crim 617

An offender who had pleaded guilty to conspiracy to commit fraud, but denied an offence of theft, had the theft conviction quashed where unbeknownst to him, the witness who had identified him had a previous fraud-related conviction. There was a real possibility that the jury would have reached a different verdict if they had known about the witness’ conviction.

[2017] EWCA Crim 751

The Privy Council dismissed a husband’s appeal against his conviction for the murder of his estranged wife. Evidence of the husband’s past violence towards her showed that he bore her ill-will and had the motive and inclination to attack her. The evidence did not go to his general credibility and was therefore admissible evidence in accordance with Makin v Attorney General of New South Wales [1894] A.C. 57.

[2017] UKPC 14

The court considered, for the first time, the circumstances in which litigation privilege and legal advice privilege could arise against a background of potential criminal litigation rather than civil litigation.

[2017] EWHC 1017 (QB)

Whilst a Magistrates’ court might in fact have applied the correct burden and standard of proof when reaching its decision to convict a minor of tampering with a motor vehicle contrary to the Road Traffic Act 1988 s.25, it had nevertheless created the impression by its remarks in open court that it might not have applied the correct standard of proof and the decision therefore had to be set aside.

[2017] EWHC 1162 (Admin)

In the trial of a man accused of assaulting his girlfriend where she later withdrew her complaint and refused to give evidence, a judge had been entitled to admit a statement by the girlfriend captured by a police officer’s body-worn video camera.

[2017] NICA 30

Where offenders had thrown sulphuric acid into their victim’s face, the trial judge had been correct to admit a text message sent by one of them containing a photo of the acid with the caption “this is the one face melter” as evidence of their intention to use the acid to cause the victim serious harm. The message was not hearsay because, although satisfying the Criminal Justice Act 2003 s.115(2), it did not satisfy s.115(3), as there was nothing to make the recipient believe that it would actually be used to melt a face.

[2017] EWCA Crim 533

A minimum term of 24 years imposed on an 18-year-old following his conviction for a gang-related murder would be reduced to 21 years to ensure that there was no unfair disparity between his sentence and the 17-year terms imposed on his two co-defendants, who were aged 17 and 16 at the time of the offence.

[2017] EWCA Crim 705

The risk of prejudice to a defendant following widely publicised remarks by the UK Prime Minister about corruption in Nigeria, made at the same time as a trial for corruption concerning the Nigerian mint, had been reduced to the absolute minimum by the judge’s careful jury directions. The fact that adverse publicity might risk prejudicing a fair trial was no reason for not proceeding with the trial if the trial judge had concluded that a fair trial was possible.

Convictions for wounding with intent, assault occasioning actual bodily harm, having an offensive weapon and criminal damage were upheld. The judge had not erred in her summing up and the appellant had not been prejudiced by an agreed admission placed before the jury.

[2017] EWCA Crim 491

The court quashed an entry and search warrant issued by a lay magistrate which had not been issued in compliance with the Police and Criminal Evidence (Northern Ireland) Order 1989 art.10(3)(c). The court also declared that the entry and search, and consequent seizures, carried out by HMRC under the authority of the warrant did not comply with art.17(6)(b) and were unlawful.

[2017] NIQB 37

The court made recommendations as to the proper approach to be taken by single judges faced with an application for permission to appeal against conviction based on fresh evidence.

[2017] EWCA Crim 466

The court interpreted Home office guidance entitled “Crime Recording General Rules” on determining whether and when a reported incident should be recorded as a crime. It determined that in the circumstances of the case, a reasonable decision-maker taking account of all the relevant factors would have concluded, beyond reasonable doubt, that an individual had not committed a crime.

[2017] EWHC 646 (Admin)

The court refused an application made by various media organisations for disclosure of video recordings taken by a marine during the killing of a wounded insurgent in Afghanistan. The balance of the principles of open justice and the rights of the media under ECHR art.10 against the circumstances militating against disclosure lay against disclosure.

[2017] EWCA Crim 326

A panel of Parole Commissioners considering a prisoner’s suitability for release from prison had not erred in failing to hear oral evidence from a psychologist who had provided favourable written reports about the prisoner. Although the panel had the power within the Parole Commissioners’ Rules (Northern Ireland) 2009 to call such a witness, there was no compelling reason why it was necessary to do so.

[2017] NIQB 34

In a trial relating to historic offences of indecent assault, the judge had rightly allowed a witness, who had witnessed the alleged offences, to give evidence that she has also been inappropriately sexually touched by the appellant. The judge correctly directed the jury that her evidence did not go to propensity, but that it was potentially relevant to an important matter in issue.

The board considered the law applicable to mentally impaired persons who had been convicted of offences which carried a mandatory death sentence. Where an offender suffered from significant mental impairment, including severe learning difficulties, such that it would be unconstitutional to carry out the death sentence, the judicial exercise of the prerogative of mercy was capable of providing proper constitutional protection.

[2017] UKPC 6

An offender’s convictions for possession of an explosive substance in suspicious circumstances and possession of ammunition in suspicious circumstances were safe, and there was no basis for interfering with the five-year custodial sentence imposed in respect of those offences.

[2017] NICA 40

In determining that it was not in the interests of justice for an offender’s case to be referred to the High Court of Justiciary on the basis of Cadder (Peter) v HM Advocate [2010] UKSC 43, the Scottish Criminal Cases Review Commission had not erred in taking into account the fact that the offender had not disputed the truth of an admission made in his police interview, had not challenged the fairness of the interview or its use at trial, and had made use of the interview at trial.

[2017] UKSC 20

The risk that a jury considering a charge of sexual assault had been deprived of evidence relevant to its deliberations, including a refusal to allow the defendant to adduce character witness evidence, rendered the conviction unsafe. The court considered the law relating to character evidence, and the distinction between evidence as to a defendant’s general reputation and evidence of specific acts or individual opinions regarding the defendant.

[2017] NICA 19

A marine’s conviction for the murder of a wounded insurgent would be replaced by a verdict of manslaughter by reason of diminished responsibility. At the time of the killing, the marine had been suffering from an adjustment disorder which substantially impaired his ability to form a rational judgment and exercise self-control.

[2017] EWCA Crim 190

The bar in the Criminal Justice Act 1982 s.72 on defendants making unsworn statements did not preclude a defendant’s account of events being given by way of hearsay evidence under the Criminal Justice Act 2003 s.114 and s.116.

[2017] EWCA Crim 273

Where an offender was convicted at trial and there was only one possible interpretation of the jury’s verdict, the judge had to sentence on that basis. However, where there was more than one possible interpretation of the verdict, the judge had to make up his own mind, to the criminal standard, as to the factual basis on which to pass sentence. Only if he was not sure of any of the interpretations, was he obliged to pass sentence on the basis of the interpretation most favourable to the defendant.

[2017] EWCA Crim 128

A conviction for assault by penetration of a child was not rendered unsafe by fresh evidence in the form of an interview during which the complainant admitted that she had lied about the allegations which she had made against her mother’s partner. The fresh evidence was inherently unpersuasive and was inconsistent with the complainant’s oral evidence at the appeal, when she maintained that she had been sexually abused but had been put under enormous pressure to change her account by her mother.

[2017] EWCA Crim 84

A sentence of nine years’ imprisonment following a guilty plea for causing grievous bodily harm with intent was reduced to eight years where the offender had deliberately reversed a car over the victim’s legs, causing very serious injuries. The offender had lived a blameless life until shortly before the incident, accepted full responsibility for her actions and would miss seeing her son grow up whilst she was in custody.

[2017] EWCA Crim 260

Where there was insufficient data in a European arrest warrant to convert a foreign reading of alcohol in an individual’s blood to the English law equivalent, the UK certifying authority should provide that information instead of the judge performing the calculation. Although, at its highest, the doctrine of judicial notice suggested there was a discretion to receive further information to help establish a notorious fact, it did not extend to calculating blood viscosity as that was not a notorious fact.

[2017] EWHC 302 (Admin)

Convictions for robbery and murder were not rendered unsafe by the admission into evidence of a co-accused’s guilty plea. The Court of Appeal also considered the impact on the convictions of the decision in R. v Jogee (Ameen Hassan) [2016] UKSC 8 in relation to the issue of joint enterprise.

[2017] EWCA Crim 268

There was no evidential or legal principle which prevented a jury from considering a case which depended solely on the presence of the defendant’s DNA profile on an article left at the scene of a crime.

[2017] EWCA Crim 40

In a trial for conspiracy to burgle the house of a firearms licence-holder, the court had been correct to admit evidence of one defendant’s previous convictions as “important explanatory evidence” under the Criminal Justice Act 2003 s.101(c). The other evidence in the case raised serious questions which required explanation, and the bad character evidence showed that the defendant was a serious criminal who was operating with a gang to commit a series of burglaries in order to acquire the kit necessary to commit robberies.

[2017] EWCA Crim 42

A bind-over, or the conduct leading to it, would not necessarily deprive a defendant of his entitlement to an unqualified good character direction. However, the defendant would not be entitled to have a bind-over simply ignored when the judge was considering whether to treat him as a person of good character.

[2017] EWCA Crim 35

The court determined issues concerning the constitution of the court when ruling on disclosure under the Criminal Appeal Act 1968 s.23(1)(a) where the Crown contested disclosure on the basis of public interest immunity and where the documents had never been the subject of any ruling by the trial judge.

[2017] EWCA Crim 37

The court considered the hearsay provisions of the Criminal Justice Act 2003, including those under s.121 concerning multiple hearsay, and R. v Twist (Andrew Terence) [2011] EWCA Crim 1143, when refusing renewed applications for permission to appeal against conviction on the basis of inadmissible hearsay evidence. The trial judge had not erred in deciding that, whether or not there were arguable grounds for excluding the evidence, it was admissible in the interests of justice.

[2017] EWCA Crim 340

A conviction for murder was safe, as a purported confession to the murder, made by a person who had been mentally ill at the time and had since retracted it, was unreliable and incapable of belief.

[2017] EWCA Crim 31