CRIMINAL PROCEDURE

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

A district judge had been entitled to refuse to adjourn a part-heard trial on the basis of evidence from a GP which suggested that the defendants were suffering from stress, depression and insomnia following the suicide of a co-defendant. It had not been unreasonable or incorrect to conclude that the medical evidence did not demonstrate unfitness to stand trial.

Magistrates’ courts did not have a discretion to extend the time to state a case after expiration of the 21 days specified in the Magistrates’ Courts Act 1980 s.111(2).

[2017] EWHC 2869 (Admin)

A sentence of six years’ imprisonment for gross negligence manslaughter was appropriate where a restaurant owner had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts. Even after one customer had suffered a violent allergic reaction, he did not improve his systems, with the consequence that another customer died after suffering an allergic reaction.

[2017] EWCA Crim 1783

The appellant’s conviction for indecent assault was rendered unsafe by directions of the trial judge which were unduly favourable to the complainant.

[2017] EWCA Crim 1774

A magistrates’ court had erred in deciding to adjourn a trial for drink driving where the defendant was ready to proceed but where the prosecution had failed to warn a relevant witness who did not appear before the court as a result.

New proceedings based on fresh evidence, which fundamentally changed the nature of the case, were not an abuse of process because they were not a collateral attack on the earlier proceedings. Accordingly, there had not been an opportunity, let alone a full opportunity, for the claimants to run their case.

[2017] EWCA Civ 1665

The extradition of a UK national to Germany, to face trial for offences relating to his failure as an employer to pay employee social welfare contributions, was not barred under the Extradition Act 2003 s.12. The allegations were not encompassed within an earlier prosecution in Germany for tax-related offences so as to violate the double jeopardy principle.

[2017] EWHC 2602 (Admin)

As a Crown Court decision to remand a defendant in custody pending a sentence hearing was a matter relating to trial on indictment, the High Court’s jurisdiction to consider an application for permission to apply for judicial review of the decision was excluded by the Senior Courts Act 1981 s.29(3).

[2017] EWHC 2706 (Admin)

A sentence of four years’ imprisonment was appropriate in the case of a 25-year-old gang member who had pleaded guilty to firing an imitation firearm at rival gang members during a street fight. Although gang members had to understand that the use of imitation firearms would be severely punished, the offender’s lack of previous convictions made a longer sentence inappropriate.

[2017] EWCA Crim 1713

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 sexual harm prevention order should not be made for an indefinite period without careful consideration. All concerned in making such orders should be alert to the fact that the effect of an order of longer duration than the relevant statutory notification requirements had the effect of extending the operation of those requirements. Inadvertent extension of the requirements was to be avoided.

[2017] EWCA Crim 1464

The court rejected a number of procedural and substantive challenges to the validity of a search and seizure warrant issued under the Police and Criminal Evidence Act 1984 Sch.1. The judge’s failure to give reasons for issuing the warrant was unfortunate, but not fatal. That said, judges should view the giving of reasons as part of determining an application for the issue of a warrant, and the Criminal Procedure Rules Committee would be invited to consider whether the standard forms to be used on such applications should be amended to direct the giving of reasons.

[2017] EWHC 2402 (Admin)

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

A challenge to the Secretary of State for Justice’s decision not to recall to prison a Chinese national who had been convicted of stealing valuable confidential systems from his employer, and the Secretary of State for the Home Department’s decision to deport him before the expiry of his four-year sentence, raised serious issues of public importance. His deportation would be stayed pending a full hearing of the challenge.

A planning enforcement notice that had required the owner of a house to remove a two storey side extension and a single storey rear extension, when in fact the house had a single storey side extension and both a single and two storey rear extension, was hopelessly unclear and was a nullity. The notice could not have been saved by the Town and Country Planning Act 1990 s.176 as the amendments it required were too extensive and could not have been made without injustice to the owner.

A man who in 1994 had abandoned his appeal against conviction for belonging to a proscribed organisation and other offences was not entitled to an order that the abandonment be treated as a nullity. The abandonment of his appeal was the result of a deliberate and informed decision, and his mind went with the act of abandonment.

[2017] NICA 47

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)

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

The Court of Appeal urged greater vigilance by advocates involved in sentencing hearings before the Crown Court. Three convictions for shoplifting were quashed as they were summary-only offences valued at less than £200 and should not have been included in the indictment.

[2017] EWCA Crim 1233

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

In circumstances where the prosecution had appealed against the grant of bail pursuant to the Bail (Amendment) Act 1993 s.1, and through no fault of its own personal service had been impossible within the time limit prescribed by the Act, and where the respondent to the bail appeal had been given oral notice and was legally represented by lawyers aware of the written notice and of its terms, a failure to serve the written application was not a bar to a Crown Court having jurisdiction to determine the appeal.

[2017] EWHC 2101 (Admin)

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

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 Court of Appeal approved the decision in Secretary of State for the Home Department v Tuncel [2012] EWHC 402 (Admin). In deciding whether to make a forfeiture order under the Proceeds of Crime Act 2002 s.298, the only question for consideration by the court was whether the conditions in s.298(2) were satisfied. It was irrelevant to consider the lawfulness of the seizure and detention of cash under s.294 and s.295.

[2017] EWCA Civ 1161

Five individuals could not be extradited to Rwanda to face charges arising from the 1994 genocide. There was a real risk of a flagrant denial of justice, in violation of their ECHR art.6 right to a fair trial, because even if the rest of the Rwandan criminal justice system had been adequate, arrangements for their defence in Rwandan trials were clearly inadequate to protect against the concerns regarding judicial independence and the protection and availability of defence witnesses.

[2017] EWHC 1912 (Admin)

The court gave guidance on the correct approach to making a compliance order with a travel restriction component under the Proceeds of Crime Act 2002 s.13A.

[2017] EWCA Crim 1267

The prosecution’s failure to disclose a local authority report following a fatal collision on a pedestrian crossing did not render unsafe a conviction for causing death by careless driving when unfit through drink, because the report could have had no real impact on the issue for the jury which was whether the appellant was unfit through drink.

[2017] EWCA Crim 1331

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

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)

An applicant’s formal notice of abandonment of his application for permission to appeal against conviction was not to be treated as a nullity. The suggestion that he might not have received legal advice on the effect of abandonment on any future appeal did not provide grounds for treating the withdrawal of the application as not amounting to a deliberate decision.

[2017] EWCA Crim 1302

The judge’s summing-up, in a trial of three defendants on a charge of conspiracy to commit fraud by false representation, was not unfair.

[2017] EWCA Crim 1007

A trial judge had erred in certifying a case as being fit for appeal under the Criminal Appeal Act 1968 s.1(2)(b) where a juror had, following discharge of the jury, made a complaint about the jury deliberations. The judge should have passed the case to the Registrar as required by the Criminal Practice Directions 2015 VI Trial 26M.46 – Jury Irregularity After Jury Discharged – Role of the Trial Judge or Court.

[2017] EWCA Crim 1062

In a terrorist investigation, the application for and issue of a search warrant, the subsequent search of an individual’s property and the seizure of goods had not been unlawful. The court gave guidance on the procedures in Northern Ireland for search warrant applications and the disclosure of information supporting applications for search warrants: an application by a property owner for disclosure of the information that had led to the granting of a warrant by a lay magistrate should be made to the magistrates’ court and heard by a district judge.

[2017] NIQB 61

The court had been wrong to impose a restraining order on the defendant preventing him from contacting his partner where his partner was content to live with him, despite the risk of domestic violence which she faced.

[2017] EWCA Crim 889

A football club was granted permission to apply for judicial review of the lawfulness of a search and seizure warrant obtained and executed by HMRC in connection with a tax fraud investigation, in particular since the judge had failed to give reasons for making the order. There was a serious issue to be tried and the balance of convenience lay in favour of continuing an injunction preventing HMRC from examining the materials seized.

A total sentence of 20 months’ detention was appropriate in the case of an 18-year-old who had pleaded guilty to inciting children to engage in sexual activity, causing a child to watch a sexual act and meeting a child following sexual grooming.

[2017] EWCA Crim 903

The Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act (c.18) s.48(2) was in violation of the Constitution of Saint Vincent and the Grenadines 1979 Sch.1 para.8 in so far as it precluded an extension of time for appeals against the death sentence. The words “Except in the case of a conviction involving sentence of death” in s.48(2) should be treated as deleted.

[2017] UKPC 18

In the appellant’s trial for sexual offences, the judge had been unduly hostile towards his counsel when she asked a leading question, but his conduct, seen in the context of the proceedings overall, did not render the trial unfair.

[2017] EWCA Crim 895

The court gave guidance on the procedural requirements for making an application to reopen a criminal appeal based on the implicit jurisdiction identified in R. v Yasain (Mohammed Abdullah) [2015] EWCA Crim 1277. The procedure was to be followed until the Criminal Procedure Rules Committee addressed the matter by formulating a rule similar to that set out in CPR r.52.17.

[2017] EWCA Crim 742

A minimum term of 10 years’ imprisonment, equating to a determinate sentence of 20 years, imposed in respect of a life sentence following an offender’s conviction for historical offences of rape and indecent assault, was reduced to six years to reflect the principle of totality of sentence. The offender had previously been sentenced to 12 years’ imprisonment for similar sexual offences committed close in time to the index offences, which effectively equated to a total sentence before reduction of 32 years.

[2017] NICA 36

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

Minimum terms of 17-and-a-half years’ detention were appropriate for a 14-year-old boy and girl who had planned and brutally carried out the murder of the girl’s mother and younger sister. The removal of reporting restrictions was a reasonable and proportionate measure, notwithstanding the age of the appellants, properly balancing their welfare against ECHR art.10 rights and the public interest.

[2017] EWCA Crim 739

An applicant had not been sufficiently prompt and so was out of time to apply for judicial review of a decision by the Director of Public Prosecutions for Northern Ireland not to refer a sentence to the Court of Appeal for being unduly lenient. Neither a pending application for legal aid, nor an intention to try and change the DPP’s mind were reasonable objective excuses for applying late, and ordering the DPP to lodge a provisional notice of referral pending the outcome of the judicial review application was contrary to the legislative scheme and would cause hardship.

[2017] NIQB 66

The Court of Appeal refused to reopen an application for leave to appeal against sentence where the offender had been denied the opportunity of an oral hearing due to an administrative error. The court had the discretion to reopen a case in those circumstances, but the offender’s long delay in seeking to reopen her case meant that it would be inappropriate to exercise that discretion.

[2017] EWCA Crim 819

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)

There was no basis for quashing a confiscation order where the offender had consented to the valuation of the benefit he had obtained from his criminal conduct. While it was possible that the prosecution might not have proved the amount of the benefit, it was implicit in the offender’s consent that he accepted that the prosecution could have proved what it would have needed to prove had confiscation proceedings gone ahead.

[2017] EWCA Crim 669

The secretary of state had acted unlawfully and had failed to have regard to the limits on her power to detain where she had detained a Nigerian national pending deportation for 1 day and 18 hours when it was unclear whether his presence in the UK would be necessary for the purposes of outstanding confiscation proceedings. As there was no compensatory loss to the detainee in the circumstances, damages for false imprisonment was fixed at £1.

[2017] EWHC 1207 (Admin)