RIGHT TO FAIR TRIAL

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.

There was no real risk that a requested person’s extradition to Brazil to face trial for two offences of murder would breach his rights under ECHR art.3 or art.6.

[2017] EWHC 2588 (Admin)

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

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

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)

A prisoner had not suffered procedural unfairness where the prison governor upgraded his security category and status based on information that the prisoner was potentially involved in trafficking illegal substances and products into the prison. Although the governor had not fully disclosed the reasons for his decision, such non-disclosure could be justified on the basis of protecting sources of information, intelligence methods and the integrity of an ongoing investigation, and was statutorily recognised by the Data Protection Act 1998 s.29.

[2017] NIQB 65

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.

An individual’s extradition to Turkey to face trial for a drugs offence would not breach ECHR art.6. There was no evidence that the emergency laws enacted by Turkey following the attempted coup d’etat there applied to the instant offence, and in any event Turkey had provided assurances that his ECHR rights would be guaranteed.

An insurance company was not permitted to bring committal proceedings against two respondents for allegedly pursuing a fraudulent road traffic accident claim. Although the trial judge had found fraud to the balance of probabilities, the evidence had mainly been circumstantial and there was no strong prima facie evidence of fraud. Further, the insurance company had waited 18 months before bringing the proceedings.

There was no domestic law duty on the Government to refrain from recognising the Turkish Republic of Northern Cyprus. Informal mutual legal assistance between UK police and North Cypriot police, for the purpose of assisting in the prosecution in Northern Cyprus of a suspected offender who had fled there, did not amount to implied recognition of Northern Cyprus.

[2017] EWHC 159 (Admin)

For the purposes of the Extradition Act 2003, a charge was not disposed of when it had led to a conviction in a magistrates’ court, but there was an outstanding appeal against conviction.

[2017] EWHC 48 (Admin)

A district judge had been entitled to conclude that a requested person would be entitled to a retrial on his return to Albania pursuant to the Extradition Act 2003 s.85. The ability of an Albanian court to decline to retry an extradited person on the basis that he had known about the original criminal proceedings against him and deliberately absented himself did not amount to a deprivation of his ECHR art.6 rights.

[2016] EWHC 3288 (Admin)

Reasonable and proportionate damages were awarded for the significant damage caused by a local authority and a police authority that had breached the ECHR art.6 and art.8 rights of a mother and her two children in the context of public law proceedings under the Children Act 1989 Pt IV. The children were separated from their mother against whom allegations of the most serious form of abuse were levelled, when all the while evidence was available to exonerate her.

[2016] EWHC 3312 (Fam)

Assurances from the Romanian authorities about the prison conditions for requested persons extradited from the UK were sufficient to show that there was no real risk of a breach of ECHR art.3. When determining under the Extradition Act 2003 s.20 whether a requested person had deliberately absented himself from his criminal trial, Council Framework Decision 2002/583/JHA 4a(1)(a)(i) was not an exhaustive list of how notice of the date and time of trial had to be given; the key question was whether surrender would lead to a breach of the requested person’s fair trial.

[2016] EWHC 2786 (Admin)

The court refused permission to appeal against a conviction for murder where the defendant had relied on diminished responsibility. The reverse burden of proof in respect of diminished responsibility in the Homicide Act 1957 s.2(2) did not infringe ECHR art.6.

[2016] EWCA Crim 2043

The Crown Court had not erred in ordering disclosure of the identity of a police informant to the defendants in various criminal trials. A fair trial required disclosure of the informant’s identity and there was no lesser method of disclosure which would adequately protect that interest. Further, following the order for disclosure, the CPS had not erred in deciding to continue with the trials. It had been entitled to find that following disclosure of the informant’s identity, the prosecution of each defendant would remain in the public interest.

[2016] EWHC 1872 (Admin)

The court considered the extent of the secretary of state’s discretion when serving a foreign judgment under the Crime (International Co-operation) Act 2003 s.1. Service of a judgment was not the same as enforcement of it. In circumstances where service would not have a direct and material impact on the recipient, the secretary of state was under no obligation to investigate the consequences of effecting service. However, there might be cases where service of a judgment would engage ECHR art.6 and where further investigation was called for.

[2016] UKSC 37

There was nothing materially inconsistent in the approaches of the Supreme Court and the European Court of Human Rights when determining whether the right to the presumption of innocence in ECHR art.6(2) had been breached by the reference to an acquittal in later proceedings. The inclusion in an enhanced criminal record certificate of details of a taxi driver’s acquittal on a rape charge had not undermined the correctness of the acquittal

[2016] EWCA Civ 490

When reviewing a tariff imposed by the secretary of state on a life prisoner for murder, the seriousness of the offences was to be assessed in the context of the guidance in the Criminal Justice Act 2003 Sch.21, while considering the judicial recommendations made at the time of sentencing. The original tariff fixed by the secretary of state should not just be replaced by the judicial recommendation, but in the instant case the seriousness of the offender’s murder offences had already been reflected in the Lord Chief Justice’s recommended tariff.

[2016] EWHC 3533 (Admin)

The European legal principle of conforming interpretation required the domestic courts to give effect to Decision 2002/584 when interpreting the Extradition Act 2003 to the extent that it was possible to do so without contradicting the clear intent of the legislation, and the contrary decision in Podlas v Poland [2015] EWHC 908 (Admin) was given per incuriam. Article 4a of the 2002 Decision was drafted to require surrender if the European arrest warrant stated that the person, in accordance with the procedural law of the issuing Member State, fell within one of the four exceptions. It did not contemplate that the executing state would conduct an independent investigation into those matters.

[2016] EWHC 353 (Admin)

Following the order of a retrial in a case concerning two teenage girls who had been charged with murder, the court ordered media organisations, until verdicts in the retrial or further order, not to place any report of the trial on their Facebook pages and to disable the ability for users to post comments on their respective news websites on an report of the trial. The court called for the Attorney General to conduct a wider consultation so that appropriate guidance on social media and prejudice in criminal trials could be issued.

[2016] EWCA Crim 12

The defence of duress was not available to a young offender detained at young offenders’ institution who appeared before the independent adjudicator in respect of a charge of having alcohol in his cell. Duress was instead properly treated as mitigation.

[2016] EWHC 176 (Admin)

A judge had been entitled to continue a trial where the offender had deliberately and repeatedly rendered himself incapable of giving evidence or of taking a meaningful part in his trial by voluntarily ingesting drugs.

[2016] EWCA Crim 9

An extradition order was upheld where the appellant had voluntarily absented himself from his trial but had had the benefit of legal representation, hearsay evidence, and assurances by the responsible authority that his human rights would be protected during his imprisonment. Although the sentence imposed by the foreign court was much more severe than would have been imposed in the UK, it was not for the UK court to try to impose domestic sentencing practice on a country where very different considerations might apply.

[2015] EWHC 3702 (Admin)

Defendants in criminal proceedings were entitled to obtain legal aid for representation in applications for leave to present voluntary bills of indictment by claiming it as an application fee under the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 Sch.1 para.16. However, the Rules were deficient in failing to provide for exceptional circumstances, including preparation time. In that regard, they were incompatible with ECHR art.6.

[2015] NIQB 105

A refusal by the English courts to permit disclosure to the European Court of Human Rights of material heard in camera during a murder trial did not constitute a breach of the courts’ domestic or international law obligations.

[2015] UKSC 76

On an appeal under the Criminal Procedure (Scotland) Act 1995 s.288AA, the Supreme Court upheld a decision of the High Court of Justiciary that the Lord Advocate’s failure to disclose material evidence to the defendant in a criminal trial did not infringe ECHR art.6. The High Court had applied the two-stage test in McInnes (Paul) v HM Advocate [2010] UKSC 7, 2010 S.C. (U.K.S.C.) 28, and the Supreme Court’s jurisdiction did not extend to determining whether it had applied it correctly.

[2015] UKSC 77

A district judge had not erred in ordering the extradition to Kenya of a person who was accused of serious fraud offences. The judge had applied the correct test under the Extradition Act 2003 s.84(1) and had been entitled to find that test to be satisfied in respect of each charge concerned. Further, there was no evidence that extradition would breach the rights of the accused person under ECHR art.3 or art.6.

[2015] EWHC 3535 (Admin)

A judge was under no obligation when presiding over the trial of a wildlife campaigner for offences committed against a terrierman for the Flint and Denbigh Hunt to disclose the fact that he himself had had represented a terrierman for the Hunt seven years previously when acting as a solicitor. In the absence of an enquiry as to whether he had acted for someone connected to field sports, the judge was under no obligation to disclose such information, and accordingly there was no basis on which to expect him to recuse himself.

[2015] EWHC 2956 (Admin)

Although the nature and extent of a judge’s questioning and comments during the course of a trial were very unfortunate, they were not such as to make the trial or consequent convictions unsafe.

[2015] EWCA Crim 1715

It was not a breach of ECHR art.6 to offer a prisoner a read-only laptop for the purpose of access to justice. There was nothing so innately complex about his case that meant he could not write to the Criminal Cases Review Commission by hand.

It was appropriate, in an extremely narrow band of cases and as an additional common law exception to the inviolable nature of legal professional privilege, to extend the principle in R. v Cox (Richard Cobden) (1884) 14 Q.B.D. 153 (Cox v Railton) by imposing a requirement that particular individuals could be present at client/lawyer discussions if there was a real possibility that the discussions would be misused in a way amounting to abuse of the privilege that justified interference.

[2015] EWCA Crim 1328

The system put in place by the Criminal Legal Aid (General) (Amendment) Regulations 2013, limiting the scope of legal aid funding for issues between prisoners and authorities, could carry an unacceptable risk of unlawful decision-making. The question was not just the system’s structure, which might be capable of fair operation, but whether there were mechanisms to accommodate those with mental health, learning or other difficulties.

[2015] EWCA Civ 819

The power in the Terrorism Act 2000 Sch.7 to question and search at ports and borders was not incompatible with ECHR art.8 or art.6.

[2015] UKSC 49

The use of the civil standard of proof on the balance of probabilities when deciding applications for gang-related injunctions under the Policing and Crime Act 2009 s.34 was not incompatible with the European Convention on Human Rights 1950 art.6.

[2015] EWHC 2763 (QB)

Although a judge had asked a defendant some closed and leading questions suggestive of challenge to the defendant’s account during his trial on fraud charges, some questioning had been open and entirely appropriate. The judge had also clearly directed the jury that nothing he had said was intended to give them guidance except on matters of law: the trial was not thereby rendered unfair by the judge’s intervention, and the defendant’s convictions were safe.

[2015] EWCA Crim 1080

A judge had been entitled to continue and conclude a trial for assault and criminal damage in the defendant’s absence, because he had been very disruptive when he had been in court.

The Court of Appeal gave guidance on the route to be taken in applying for legal aid in county court proceedings for committal for contempt, which were criminal proceedings within the Criminal Legal Aid (General) Regulations 2013 reg.9(v).

[2015] EWCA Civ 483

A judge had been entitled to conclude that the Extradition Act 2003 s.20(3) provided no defence to an appellant who had absented himself from a trial in the Netherlands, as there was no evidence to demonstrate that the appellant’s absence was because of the alleged negligent advice of his solicitor.

A Magistrates Court was entitled to conclude that a defendant was guilty of an offence under the Public Order Act 1986 s.4 when there was no specific finding that he had intended to cause fear of immediate unlawful violence as it had found that the language the defendant had used combined with his behaviour was sufficient to show that the victim was likely to believe that violence would be used.

[2015] EWHC 856 (Admin)

The transcripts of emergency 999 calls made by a victim of domestic violence and the conversations she had with police officers at the scene were admissible as hearsay evidence under the res gestae principle. The victim’s fear of reprisals from her assailant justified the Crown’s decision not to call her as a witness at trial.

[2015] EWHC 232 (Admin)

An offender had not had a right of appeal under the Magistrates’ Courts Act 1980 s.108 against a decision ordering him to serve a term of imprisonment in default of payment of an outstanding fine. Such an order did not fall within the definition of “sentence” at s.108(3) because it was not made upon conviction but at a different time and for a different reason.

[2015] EWHC 333 (Admin)

A decision to extradite a man facing charges of extra-territorial terrorist offences in the US was upheld where there was no real risk that the main prosecution witness’s evidence had been obtained through torture or inhumane or degrading treatment. The fact that there had been other circumstances where US government agents had been involved in violations of human rights of persons from whom intelligence was sought was of no assistance in demonstrating reasonable grounds for suspecting torture in the instant case.

[2014] EWHC 4167 (Admin)

A trial for three specimen offences of sexual activity with a child had been fair, even though the complainant’s cross-examination was cut short due to her extreme distress. The defendant’s principal defence had been put to her, and there was other evidence upon which the jury could rely. The resulting sentence of nine years’ imprisonment was appropriate given that the defendant had committed numerous similar offences against the complainant while the sentencing guidelines were aimed at a single offence.

[2014] EWCA Crim 2570

A district judge conducting extradition proceedings had no power to order a closed material procedure, or to order disclosure of evidence to the Crown Prosecution Service while prohibiting its disclosure to the requesting state. The judge could, however, receive such evidence under the inherent powers of the court to control its own procedure, subject to that course being fair to all parties.

[2014] UKSC 59

A trial judge’s order under the Contempt of Court Act 1981 s.11 to protect sensitive information heard in camera in a murder trial, which had been made on national security grounds, would not be varied to enable the defendant to present a complaint to the European Court of Human Rights based on an alleged breach of his right to a fair trial.

[2014] EWHC 3558 (Admin)

The High Court had no jurisdiction to extend the time in which a non-British national who was the subject of an extradition order under the Extradition Act 2003 Pt 1 could appeal, following a failure to comply with the strict time limits imposed under s.26(4) of the Act.

[2014] EWHC 3433 (Admin)

A consent order quashing an adjudicator’s award that a prisoner should serve additional days in custody had removed any legal basis for that award. As the prisoner had served 11 additional days he was entitled to damages for breach of the ECHR art.5.

[2014] EWHC 3886 (Admin)

A judge would be acting in bad faith for the purposes of the Human Rights Act 1998 s.9(3) if he was acting for a purpose ulterior to his judicial function.

Refusing bail on the ground of prevention of crime to an applicant with no previous convictions did not necessarily breach the ECHR art.6(2). The court had to make a tailor-made assessment and evaluation of future risks based on the concrete circumstances of the individual case and was not forming a view on the applicant’s guilt.

[2012] NIQB 110