CRIMINAL LAW

The defence of insanity was available to a defendant who was charged with harassment under the Protection from Harassment Act 1997 s.2(1).

[2017] EWHC 2855 (Admin)

The court reduced, from 11 years to 10 years’ imprisonment, the sentences imposed on the parents of a 17-week-old child following their convictions for causing or allowing her death. Although there were numerous aggravating features, including an attempt to cover up the circumstances of her death, insufficient weight had been given to the finding that the parents had had constructive, rather than actual, knowledge of the significant risk of serious harm to their child.

[2017] EWCA Crim 1686

The subjective element of the test for dishonesty in R. v Ghosh (Deb Baran) [1982] Q.B. 1053 did not correctly represent the law and directions based on it should no longer be given. When dishonesty was in question, the fact-finding tribunal had first to ascertain the actual state of the individual’s knowledge or belief as to the facts. The question whether the conduct was honest or dishonest was then to be determined by applying the objective standards of ordinary decent people.

[2017] UKSC 67

A judge had been entitled to find that an announcement by the CPS that a person charged with “making” indecent photographs of children did not carry the defamatory meaning that the person was accused of having been present at the scene of abuse. The Court of Appeal should proceed cautiously before substituting its own views on meaning in a defamation case, and should only do so when it was satisfied that the judge was wrong.

[2017] EWCA Civ 1529

A two-storey flat above a restaurant required licensing as a house in multiple occupation because the ground-floor restaurant was to be taken into account in calculating the number of storeys under the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 art.3(3).

The prohibition on assisting suicide in the Suicide Act 1961 s.2 did not unlawfully breach the ECHR art.8 rights of a terminally ill person with a serious wasting disease who wished to commit suicide so as to be able to exercise control over the time of his death.

[2017] EWHC 2447 (Admin)

A person committed the offence of detaining a child pursuant to the Child Abduction Act 1984 s.2(1)(b) by allowing a child to enter and remain in his home even though she had willingly knocked on his door and had asked to come in. The fact that the child was willing was no defence as the Act was intended to protect children from risky situations.

The Crown Court had not erred in dismissing an individual’s appeal against her conviction for common assault. It had been appropriate to find that she had appreciated that she would make contact with an enforcement officer when she lunged towards him to grab papers that he was holding, and to infer recklessness.

The court determined that the interpretation in R. (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) of the Criminal Justice and Immigration Act 2008 s.76(5A) on self-defence in householder cases was correct. The court also gave guidance on summing up in such cases.

[2017] EWCA Crim 1391

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 definition of “dwelling” in the Public Order Act 1986 s.8, for the purposes of the exception in s.5(2), would generally not include a domestic garden to the front or rear of a dwelling-house. A person who had shouted a racially aggravated comment from her garden at a person in the neighbouring garden had therefore not been “inside a dwelling” at the time and had committed a public order offence under the Crime and Disorder Act 1998 s.31.

[2017] EWHC 2244 (Admin)

Offences under the Trade Marks Act 1994 s.92(1) applied not only to counterfeit goods but also to “grey goods”, namely goods manufactured with the permission of the trade mark proprietor, but not authorised for sale.

[2017] UKSC 58

An optometrist was not guilty of the gross negligence manslaughter of a young boy where she had breached her statutory duty of care to examine the internal structure of his eyes as part of a routine eye examination and consequently failed to identify an abnormality on the optic nerve which ultimately led to his death. That was not enough to found a case of gross negligence manslaughter as there had not been a “serious and obvious risk of death” at the time of the breach.

[2017] EWCA Crim 1168

Convictions for wilfully obstructing free passage along a highway without lawful authority or excuse contrary to the Highways Act 1980 s.137(1) were quashed where the prosecution had failed to establish where the boundary to a highway lay so that they had not proved that protesters were obstructing the highway.

[2017] EWHC 1955 (QB)

Permission to apply for judicial review of a magistrates’ court’s refusal to issue a summons for the private prosecution of politicians for the crime of aggression through their participation in the 2003 Iraq war was not granted. There was no prospect of the Supreme Court holding that the decision in R. v Jones (Margaret) [2006] UKHL 16, that the crime of aggression had not been incorporated or assimilated into domestic criminal law, was wrong. It was for Parliament, and not the courts, to make such conduct criminal under domestic law and Parliament had deliberately chosen not to do so.

[2017] EWHC 1969 (Admin)

The words “or otherwise” in the Domestic Violence, Crime and Victims Act 2004 s.5(6) envisaged a third category of potentially vulnerable adults who were not suffering from an illness, disability or old age. In relation to the third category, the causes of vulnerability might be physical or psychological or they might arise from the victim’s circumstances.

[2017] EWCA Crim 1072

The claimant, who had been the subject of research by the Extremism Analysis Unit, had not made out his challenge to the lawfulness of the Prevent Duty Guidance for England and Wales and the Higher Education Prevent Duty Guidance, which were aimed at preventing people from being drawn into terrorism. Further, the collection, storage and dissemination by the Extremism Analysis Unit of his data had not breached his privacy rights under ECHR art.8.

[2017] EWHC 1930 (Admin)

The court refused permission to amend grounds of appeal out of time to include a ground relating to joint enterprise, where the application was made by an offender convicted of murder before the decisions in R. v Jogee (Ameen Hassan) [2016] UKSC 8 and R. v Johnson (Lewis) [2016] EWCA Crim 1613. Substantial injustice had not been demonstrated sufficient for exceptional leave to be granted.

[2017] EWCA Crim 740

The Criminal Cases Review Commission had been justified in not referring the claimant’s conviction for murder to the Court of Appeal.

[2017] EWHC 1219 (Admin)

An extended sentence of 15 years, with a 12-year custodial portion, imposed concurrently for two counts of manslaughter on a driver who had led police on a high-speed chase before losing control of his vehicle and killing two people, was not unduly lenient.

A person suffering from schizophrenia who killed while intoxicated could rely on the defence of diminished responsibility if their condition was of such severity that, even without intoxication, it would have impaired their responsibility. They could also rely on the defence if the schizophrenia was coupled with drink or drug dependence which together substantially impaired responsibility.

[2017] EWCA Crim 647

The natural reading of the offence under the Air Navigation Order 2009 art.142(c) was that there had to be an intention to interfere with the cabin crew’s performance of their duties. It was not sufficient that there was an intentional act or omission which merely had the effect of causing an interference with the cabin crew’s performance of their duties.

[2017] EWCA Crim 717

A judge had erred in the manner in which he had imposed an extended determinate sentence on an offender who had pleaded guilty to numerous offences including sexual activity with a child, drug dealing and possession of a firearm. It was not permissible to reach a total custodial sentence and then impose a global extension period and the appeal was therefore allowed purely for the purpose of restructuring the sentence.

[2017] EWCA Crim 764

A fraud conviction was rendered unsafe by the judge’s conduct in questioning the defendant in a way that went beyond elucidation of the evidence to undermining the defence, and in muddling his directions to the jury so that it was left open to them to draw adverse inferences from the defendant’s silence without the safeguards required by the Criminal Justice and Public Order Act 1994 s.34.

[2017] EWCA Crim 632

A police officer who genuinely and reasonably believed that she was authorised by court order to arrest an individual for breaching an injunction, and who genuinely and reasonably believed that the individual was in breach of the injunction, was acting in the execution of her duty. Therefore, although the injunction and power of arrest had erroneously cited repealed statutory provisions, when the individual assaulted her he could be convicted of assaulting an officer in the execution of her duty.

A property which was normally let out to tenants and was fully furnished with all amenities connected, but which had been vacated two days before it was burgled, was classed as a “dwelling” for the purposes of the Theft Act 1968 s.9(3)(a) and not as a commercial property. The burglary was therefore a domestic one and attracted a higher maximum penalty than that applicable in any other case.

[2017] EWHC 841 (Admin)

A minibus driver who had failed to undergo periodic training and to obtain a certificate of professional competence pursuant to the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 had been rightly convicted of an offence, notwithstanding that he had obtained his licence before the Regulations came into effect. The Regulations properly transposed Directive 2003/59 into domestic law and did not unlawfully impose any retroactive condition on existing licence holders: any consequent interference with their rights was plainly lawful and proportionate.

[2017] EWHC 1019 (Admin)

The court construed the provisions of the Proceeds of Crime Act 2002 which related to the making of a production order.

[2017] EWHC 747 (Admin)

The phrase “fails to attend regularly” in the Education Act 1996 s.444(1) referred to a pupil’s failure to attend school “in accordance with the rules prescribed by the school”. Therefore a father who took his child on holiday during term-time without the school’s permission had been properly issued with a penalty notice, despite the child’s history of regular school attendance.

[2017] UKSC 28

Self-defence was capable in law of being invoked as a defence to a charge of dangerous driving, although it was likely to be a rare case in which it was capable of arising.

[2017] EWCA Crim 413

The Sexual Offences (Scotland) Act 2009 s.39(2)(a)(i), which prevented a person charged with a sexual offence against an older child from relying, in cases where he had “previously been charged by the police with a relevant sexual offence”, on the defence that he reasonably believed that the child had attained the age of 16, was incompatible with the ECHR art.8 rights of the appellant. It was also likely to give rise to breaches of art.8 in many other cases.

[2017] UKSC 25

A judge had not erred when explaining to the jury the meaning of “harassment” in relation to an allegation of stalking involving serious alarm or distress contrary to the Protection from Harassment Act 1997 s.4A.

[2017] EWCA Crim 493

A man with motor neurone disease was refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961 s.2(1). Parliament had considered the issue following the Supreme Court decision in R. (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, and it remained institutionally inappropriate for a court to declare that s.2(1) was incompatible with ECHR art.8(1).

[2017] EWHC 640 (Admin)

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)

A guilty plea to the offence of possession of a false identity document with intent was overturned where the defendant, a refugee, had not been advised that he had a defence under the Immigration and Asylum Act 1999 s.31 which would probably have succeeded. In those circumstances, a clear injustice had been done at the time of his conviction.

[2017] EWCA Crim 486

The offence of providing a false document contrary to the Social Security Administration Act 1992 s.112 did not necessarily involve dishonesty.

[2017] EWHC 1139 (Admin)

A child conceived with a genetic disorder as a result of the incestuous rape of his mother was not eligible to claim criminal injuries compensation. He could not be the victim of a crime committed before he had been conceived, and it was not possible to assess compensation on the basis that he would otherwise have been born without disability.

[2017] EWCA Civ 139

An application to treat a notice of abandonment as a nullity was granted where the applicant’s counsel had told him that his appeal would have to be abandoned, and his solicitor had signed and submitted the abandonment notice despite the applicant’s objection; the mind of the applicant had not gone with the notice.

For the purposes of establishing the commission of an offence of conveying “list A” or “list B” articles into a prison contrary to the Prison Act 1952 s.40B(1)(a) and s.40C(1)(a), the Crown had to prove that the offender knew that he was conveying something prohibited into the prison, but it did not have to prove that he knew precisely what that item was.

[2017] EWCA Crim 189

Recklessness in the offence of assault would only be proved against a defendant if the magistrate or judge was satisfied that he actually foresaw a risk by taking a certain course of action but went on to take that risk.

The court set out the correct law in relation to the application of the slip rule under the Powers of Criminal Courts (Sentencing) Act 2000 s.155. After imposing a sentence on the basis of a factual error, a judge had been entitled to increase the sentence under the slip rule despite initially indicating that he would not do so. An indication by the Attorney General that he intended to refer the sentence to the Court of Appeal as unduly lenient was a relevant consideration.

[2017] EWCA Crim 226

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

The court considered the respective regulatory functions of the local authority and the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2010. Duality of regulation was not to be encouraged, and it determined that the Agency, and not the local authority, had jurisdiction over a company carrying on a massive operation recovering and processing multiple types of construction waste.

[2017] EWCA Crim 58

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

A magistrates’ court had been entitled to find that there was a case to answer against an individual accused of assaulting two security guards attempting to detain him. The court had found that the guards had acted under the Police and Criminal Evidence Act 1984 s.24A(1)(b) because they had had reasonable grounds for suspecting that he was committing an indictable offence; on the ordinary words of that section there was no requirement for an indictable offence actually to have occurred.

The Privy Council upheld a decision of the Court of Appeal of Trinidad and Tobago dismissing the appellant’s claim for malicious prosecution. Both the trial judge and the Court of Appeal had found on the evidence that the prosecutor had acted with reasonable cause and without malice in charging the appellant with the unlicensed possession of a firearm. There was nothing complex or exceptional about the case and there was no reason to interfere with those findings of fact.

[2017] UKPC 3

The court acceded to an application under the Senior Courts Act 1981 s.28A to amend an appeal by way of case stated where the case stated contained reasons for the conviction which differed from the reasons given by the magistrates in open court, in a contemporaneous note and in an earlier draft of the case stated. It was at least possible that the different formulations of the case stated could lead to different outcomes.

The court considered the approach to the defence of duress in respect of victims of human trafficking for the purposes of exploitation who had committed crimes prior to enactment of the Modern Slavery Act 2015.

[2017] EWCA Crim 36

A judge’s direction in a murder trial as to the meaning of “substantial” impairment within the Homicide Act 1957 s.2 as regards the defence of diminished responsibility had amply complied with the guidance given in R. v Golds (Mark Richard) [2016] UKSC 61; she had not elaborated unduly and the conviction was safe. The offender’s sentence of life imprisonment with a minimum term of 22 years, whilst severe, was not manifestly excessive.

A jury in a murder trial had been entitled to reject the defence of diminished responsibility under the Homicide Act 1957 s.2 for an accused with an autistic spectrum disorder who had strangled a fellow care home resident in order to have sex with her undisturbed. The judge’s misstatement in his summing up that that outcome was irrational, despite one expert’s evidence to the contrary, and that the jury should focus on the decision-making process of the accused to assess his ability to form a rational judgment, had been helpful rather than adverse to the accused. However, it was over-refined to separate the decision-making process from the outcome and could lead to undue glossing of s.2.