CRIMINAL PROCEDURE

Mistake of material fact leading to unfairness could be available as a ground of judicial review in respect of the determination of applications to adjourn trials in magistrates’ courts.

[2018] EWHC 229 (Admin)

A university’s decision to exclude a student from a pharmacy degree course on the basis of non-disclosure of criminal convictions received as a juvenile was quashed. The university’s fitness to practise panel’s failure to take into account the student’s considerable mitigation meant that it had not struck a fair balance between his rights and the protection of the public.

[2018] EWHC 144 (Admin)

The power of the Court of Appeal (Criminal Division) to order a venire de novo did not include a power to declare a summary trial a nullity, or quash a conviction recorded in such proceedings and remit the matter for retrial. Venire de novo was concerned only with trial on indictment, and with fundamental irregularities rendering such a trial a nullity.

[2018] EWCA Crim 95

When dealing with an appeal by way of case stated, the court could only consider the facts of the case. A witness statement from the appellant’s solicitor seeking to clarify evidence that the magistrates’ court had rejected was not permissible, and the High Court would not go behind the magistrates’ court’s findings.

The court made a certificate of inadequacy where a defendant’s realisable property was inadequate to meet a confiscation order made against him. The confiscation order amount had been calculated by reference to the value of a number of properties, and the evidence showed that for various reasons they were not going to realise what had initially been estimated.

When determining the period of imprisonment to be imposed in default of full payment of a confiscation order made in the Crown Court, accrued interest was not included in the starting point under the Magistrates’ Courts Act 1980 s.79(2) for the purpose of the calculation of the reduction in days of imprisonment when giving proportionate credit for part-payment of the order. The natural construction of s.79(2) was that the starting point was the sum outstanding at the time of the Crown Court order.

[2018] UKSC 2

The Supreme Court considered the extent to which closed material could be taken into account by magistrates when issuing search and seizure warrants under the Police and Criminal Evidence Act 1984 s.8; by the Crown Court when asked to authorise the retention of seized material under the Criminal Justice and Police Act 2001 s.59; and by the High Court on an application for judicial review of the legality of either of the foregoing decisions.

[2018] UKSC 1

An appeal against a decision to dismiss an application for habeas corpus was dismissed as the appellant had consented to the withdrawal of the application when he was released by the secretary of state and his appeal was out of time. The appellant was attempting to challenge the restrictions imposed on him pursuant to the Immigration Act 1971 Sch.3 para.2(5), rather than the order within the habeas corpus proceedings.

An unless order was made against an individual who had not complied with an order to pay costs of £425,000 resulting from his failed claim for tainted gift. He had made no attempt to comply and at the last minute had made an unsubstantiated contention that he lacked funds.

A conviction for rape was found to be unsafe where the prosecution had relied on an edited and misleading series of Facebook exchanges between the complainant and appellant. The case centred on consent and turned on credibility, and Facebook messages which had been deleted by the complainant but obtained after the trial undermined her version of events and supported that of the appellant.

[2017] EWCA Crim 2214

The court considered the extent to which a mental disorder could be relevant to an assessment of “the circumstances of the defendant” when considering the partial defence of loss of control under the Coroners and Justice Act 2009 s.54(1).

[2017] EWCA Crim 2061

The fact that voluntary intoxication might sometimes explain a person’s inability to provide a specimen of breath did not mean that that person would therefore have a “reasonable excuse” for the purposes of the Road Traffic Act 1988 s.7(6). The scope of a reasonable excuse for s.7(6) purposes would always be a question of fact for the court.

[2017] EWHC 3119 (Admin)

A magistrates’ court had been unreasonable in refusing to adjourn a sexual assault trial after five members of the complainant’s family were killed in an accident the night before the trial. The circumstances were exceptional and the court reiterated the careful approach to adjournment applications set out in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin).

The court had jurisdiction to make a declaration on a closed material application under the Justice and Security Act 2013 s.6 in judicial review proceedings challenging a decision not to prosecute. Although the case was not an appeal “in” criminal proceedings, since its outcome would not decide criminal liability, the words “criminal cause or matter” in s.6(11) were to be interpreted broadly.

[2017] EWHC 3056 (Admin)

A magistrates’ court had failed to adopt the correct approach when rejecting a submission of no case to answer in respect of a charge of robbery.

[2017] EWHC 2963 (Admin)

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

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 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.

A magistrates’ court had erred in adjourning a trial at the CPS’s request where it did not have sufficient information to consider important factors concerning the merits of granting or refusing an adjournment in accordance with Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin).

[2017] EWHC 2828 (Admin)

The court construed the Local Government (Miscellaneous Provisions) Act 1976 s.55A, which allowed subcontracting by private hire vehicle operators.

[2017] EWHC 2794 (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)

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 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

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)

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

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)

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