West Law Report

ADORIAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Posted in Assault, Criminal Justice Act, Police powers and duties, Westlaw Reports by mrkooenglish on June 4, 2008

Last Updated: 3:18PM BST 04/06/2008
Queen’s Bench Division Owen J May 19, 2008
Claims – Interpretation – Police officers – Procedural irregularity – Trespass to the person – Meaning of s. 329(2) Criminal Justice Act 2003 – Requirement to obtain court’s permission to bring civil proceedings – s. 329(2) Criminal Justice Act 2003

FACTS

The defendant Commissioner of Police (D) applied to strike out a claim for damages for assault on the ground that the claimant (C) had failed to obtain the court’s permission to issue proceedings in accordance with the Criminal Justice Act 2003 s. 329(2). C had been arrested and was subsequently found guilty of obstructing police officers in the execution of their duty. Following his arrest, C was found to have sustained a complex injury involving fractures to the head of his right femur. C contended that the injuries were sustained in the course of his arrest and issued a claim for damages for assault. D submitted that s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety. C submitted that the court could entertain a subsequent application for permission and permission should be granted.

ISSUE

Whether s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety.

HELD (judgment accordingly)

(1) A failure to comply with s. 329(2) did not render the proceedings a nullity, but amounted to a procedural irregularity that could be cured by a subsequent application at the discretion of the court, Rendall v Blair (1890) LR 45 Ch D 139 CA and Re Saunders (A Bankrupt) [1997] Ch 60 Ch D applied. There were a number of reasons for that conclusion. Firstly, recourse to the courts was not to be excluded except by clear words. Secondly, there was no legislative history from which it was clear that Parliament intended compliance to be mandatory, Seal v Chief Constable of South Wales [2007] UKHL 31, [2007] 1 WLR 1910 distinguished. Thirdly, to construe s. 329(2) as a mandatory requirement would have the effect of defeating other causes of action brought in the proceedings, which would be restrictive. Fourthly, the protection for a prospective defendant provided by the section was not lost by treating prior permission as a procedural requirement. A defendant would be able to apply to the court to have the proceedings struck out if proceedings were commenced without prior permission.

(2) C sustained extremely serious injuries in the course of his arrest. It would be plainly open to a court to conclude that the force used in the restraining of C in the course of his arrest was grossly disproportionate. C therefore satisfied the test in s. 329(3). Justice required that C’s claim that such injuries as were sustained by trespass to the person or negligence or both should be determined by the court.

Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant. P Stagg (instructed by in-house solicitor) for the defendant.

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CPS v JENNINGS

(See also Times law report: Making confiscation orders)

Last Updated: 11:26AM BST 22/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

May 14, 2008 (Filed: May 22, 2008)

Benefit from criminal conduct – Conspiracy to defraud – Control – Restraint orders – Statutory interpretation – Meaning of “obtain” in s. 71(4) Criminal Justice Act 1988

FACTS

The appellant (J) appealed against the dismissal ([2005] EWCA Civ 746, [2006] 1 WLR 182) of his appeal against a refusal to discharge a restraint order made against him without notice under the Criminal Justice Act 1988 s. 77(1). The restraint order had been made while J was awaiting trial with three others on a charge of conspiracy to defraud. It prohibited him from removing any of his assets from England and Wales and disposing of or diminishing the value of any of his assets. The particulars of conspiracy related to a company that had received administration fees from potential borrowers for loans which had never been made. The prosecution case was that J had been at the centre of the conspiracy, although he appeared to be no more than an employee, and that he had benefited by more than £584,000 for the purposes of s. 71(4) of the Act, since that was the amount of money obtained by the conspiracy. J’s appeal against the restraint order had been argued while the criminal trial was in progress, and the judgment of the Court of Appeal had been handed down after J had been convicted and sentenced. The Court of Appeal had concluded that the word “obtain” in s. 71(4) of the Act did not mean “retain” or “keep”, but contemplated that the defendant in question should have been instrumental in getting the property out of the crime and that his acts must have been a cause of that being done. It had found that there was no separate requirement that the defendant must be shown to have “control” over the property. J submitted that he had “obtained” his salary and a few minor payments, the total of which amounted to a maximum of £50,000. He maintained that the application for a restraint order had illegitimately sought to pierce the corporate veil of the company through which J and his co-accused had operated. The CPS contended that J had “obtained” property amounting to over £584,000 before adjustment for inflation.

ISSUE

Whether on the facts, there was sufficient material to support the making of the restraint order.

HELD (appeal dismissed)

(1) The meaning of s. 71(4) was, in substance, the same as the equivalent provisions of the drug trafficking legislation. It was to be remembered that the object of the legislation was to deprive a defendant of the product of his crime or equivalent, not to operate by way of fine. The rationale of the confiscation regime was that a defendant was deprived of what he had gained. If he was deprived of what he had never obtained, that was a fine. That must ordinarily mean that in order to be so deprived, a defendant would have to have obtained property so as to own it, whether alone or jointly, which would ordinarily connote a power of disposition or control. The finding of the court below was not entirely accurate because a person’s acts might contribute significantly to property being obtained without his obtaining it. The words “a person benefits from an offence if he obtains property as a result of or in connection with its commission” was to be read as meaning “obtained by him”. The broad thrust of J’s criticism of the Court of Appeal’s construction of s. 71(4) was accepted, but nevertheless, there was clearly sufficient material to support the making of the restraint order.

(2) Ordinarily, acts done in the name of and on behalf of a limited company were treated in law as acts of the company and not of the individuals who performed them. In the instant case, where the acts done by J and his associate had led to the conviction of one and a guilty plea by the other, the veil of incorporation had been not so much pierced as rudely torn away. As the crux of J’s case was that he was not the prime mover in the company, it was a case that could only be explored by examining the internal management of the company.

Anthony Elleray QC and Scott Redpath (instructed by David Hanman Associates, Greater Manchester) for the appellants. Andrew Mitchell QC and Stephen Hellman (instructed by in-house solicitor) for the respondent.

R v GREEN

Posted in confiscation order, House of Lords (case), Westlaw Reports by mrkooenglish on May 23, 2008

(See also Times law report: International obligations)

Last Updated: 11:27AM BST 22/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

May 14, 2008 (Filed: May 22, 2008)

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Benefit from criminal conduct – Confiscation orders – Conspiracy – Drug trafficking Money Laundering – Proceeds of crime – Conspiracy to traffic drugs – Proceeds received by several co-conspirators – Value of each conspirator’s proceeds – s. 1(3) Drug Trafficking Act 1994 – s. 4(1)(b) Drug Trafficking Act 1994 – s. 2(2) Drug Trafficking Act 1994

FACTS

The appellant (G) appealed against a decision of the Court of Appeal ([2007] EWCA Crim 1248, [2007] 3 All ER 751) upholding the making of a confiscation order against him under the Drug Trafficking Act 1994 s. 2. G had been the principal directing mind behind a sophisticated conspiracy to obtain and distribute drugs and to launder the proceeds. Along with a number of fellow conspirators, he had pleaded guilty to three offences of conspiracy in connection with the scheme. Whilst the Crown calculated his benefit from the conspiracy to amount to some £10.5 million, G claimed that the figure was actually in the region of £4.8 million. In computing that sum he sought to deduct from the benefit received by him a proportion of the profits retained by two of his co-defendants. The judge made a confiscation order and in calculating the amount of the order he held that money retained by the two co-defendants was held by all three jointly as proceeds in which they were all fully interested. The Court of Appeal decided not to disturb the judge’s decision to give credit to G for the amounts received by his co-conspirators and for the value of the proceeds they received. It did, however, certify a point of law of general public importance in the following terms: where any payment or other reward in connection with drug trafficking was received jointly by two or more persons acting as principals to a drug trafficking offence as defined in s. 1(3) of the Act, whether the value of each person’s proceeds of drug trafficking within the meaning of s. 4(1)(b) of the Act included the whole of the value of such payment or reward. G submitted that the appropriate measure of benefit was the total value of the property actually received by him and that the sums received by his co-defendants should have been deducted from the amount specified in the confiscation order.

ISSUE

Whether the appropriate measure of benefit was the total value of the property actually received by G and that the sums received by his co-defendants should have been deducted from the amount specified in the confiscation order.

HELD (appeal dismissed)

G’s appeal could not succeed. For the reasons given by the Appellate Committee in R v May (Raymond George) [2008] UKHL 28, the decision of the Court of Appeal in that case, that where money or property was received by one defendant on behalf of several defendants jointly, each defendant was to be regarded as having received the whole of it for the purposes of s. 2(2) of the Act, was correct.

Tim Owens QC and Andrew Bodnar (instructed by Stokoe Partnership) for the appellant. David Perry QC and Duncan Penny (instructed by Crown Prosecution Service) for the respondent.

R v MAY

Posted in confiscation order, House of Lords (case), Westlaw Reports by mrkooenglish on May 23, 2008

(see also Times law report: Guidance on making confiscation orders )

Last Updated: 11:27AM BST 22/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

May 14, 2008 (Filed: May 22, 2008)

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Apportionment – Benefit from criminal conduct – Confiscation orders – Principles to be followed by judges – s. 1(1) Criminal Law Act 1977

FACTS

The appellant (M) appealed against a decision ([2005] EWCA Crim 97, [2005] 1 WLR 2902) upholding a confiscation order made against him in the sum of £3,264,277. M had pleaded guilty to conspiracy to cheat contrary to the Criminal Law Act 1977 s. 1(1) after taking part in a “missing trader” or “carousel” fraud involving the sale of high-value computer processing units. The VAT unaccounted for during the period of M’s involvement totalled £4,439,533. In determining the extent of M’s benefit, however, the judge subtracted from that figure sums amounting to £1,175,256 in respect of money recovered from the missing traders’ bank accounts and the proceeds of sale of a number of computer processing units, leaving a net figure of £3,264,277. It was now common ground that the judge had erred in reducing the benefit figure in that way: he had confused benefit with realisable assets. The judge valued M’s realisable assets at £3,887,198, an amount exceeding the benefit figure. He accordingly made the confiscation order in the full sum of £3,264,277. M argued that Parliament had intended to establish a confiscation regime which was effective but fair. It intended to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had, to permit recovery of the same sum against different defendants or to permit recovery of a sum exceeding what the victim had lost. Such results were oppressive and disproportionate. Sixteen conspirators had been named in the indictment. Had each been found to have shared jointly in the proceeds of the fraud and made liable (assuming they had realisable assets of the required value) for the full sum ordered against M, the same sum would have been recovered 16 times over and the state would have gained more than HM Customs and Excise had lost. The solution in such a case was to apportion the overall loss among those held to be jointly liable.

ISSUE

Whether the confiscation order made was entirely consistent with the legitimate objects of the legislation.

HELD (appeal dismissed)

The sum which M, jointly with others, was found to have fraudulently obtained from HM Customs and Excise was, in law, as much his as if he had acted alone. That conclusion led ineluctably to the further conclusions that he benefited from his offending, and benefited to an extent substantially greater than the confiscation order made against him (because of the deduction wrongly made by the judge). The order made was less than his realisable assets. It was entirely consistent with the legitimate objects of the legislation, and it required that he be ordered to pay such sum, which involved no injustice or lack of proportionality. The legislation was, as Lord Steyn described it in R v Rezvi (Syed) [2002] UKHL 1, [2003] 1 AC 1099, “a precise, fair and proportionate response to the important need to protect the public”. R v Porter (Jeremy) [1990] 1 WLR 1260 CA (Crim Div) was not authority for the proposition that the court had the power to apportion liability between parties jointly liable, a procedure which would be contrary to principle and unauthorised by statute. The Appellate Committee reviewed the legislation and authorities relating to confiscation orders and emphasised the broad principles to be followed by those called upon to exercise the jurisdiction to make such orders.

Andrew Campbell-Tiech QC and Gavin Irwin (instructed by Pattichi Hill & Croques, Ilford) for the appellant. Oliver Sells QC and Ivan Pearce (instructed by in-house solicitor) for the Crown.

International obligations

Posted in confiscation order, House of Lords (case), Times Law Report, Vienna Convention by mrkooenglish on May 20, 2008

(See also Westlaw report: R v Green)

From The TimesMay 19, 2008

International obligations
House of Lords

Published May 19, 2008

Regina v Green

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

The Drug Trafficking Act 1994, in giving effect to the United Kingdom’s obligations under the Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime 1993, fell to be construed without regard to legislation in other countries which had chosen to give effect to those obligations in a different way.

The House of Lords so held in dismissing an appeal by Mark Green from the order of the Court of Appeal (Lord Justice Moore-Bick, Mr Justice David Clarke and Mrs Justice Swift) (The Times June 15, 2007) upholding a confiscation order made against him under the 1994 Act by Judge Steiger, QC.

Mr Tim Owen, QC and Mr Andrew Bodnar for Green; Mr David Perry, QC and Mr Duncan Penny for the Crown.

LORD BINGHAM, giving the opinion of the committee, said that Mr Owen had argued that sums retained by the appellant’s codefendants should have been deducted from his confiscation order, pointing out that the confiscation regimes of Australia, New Zealand, the United States and Canada did not sanction recovery of the same sum from different offenders.

However, for the reasons given in R v May (The Times May 15, 2008) where two or more defendants obtained control of property jointly, each of them had obtained the whole of it within the meaning of the 1994 Act.

In construing a United Kingdom statute the meaning of which it judged to be clear, the committee could not be influenced by the legislation of other countries, even if those countries had chosen to give effect to common international obligations in a different way.

Solicitors: Stokoe Partnership, Leytonstone; Crown Prosecution Service, Special Crime Division.

Making confiscation orders

(See also Westlaw report: CPS v Jennings)

From The TimesMay 19, 2008

Making confiscation orders
House of Lords

Published May 19, 2008

Jennings v Crown Prosecution Service

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

Confiscation orders, or restraint of property orders pending the making of such orders, were to be made in respect of property which the person had actually obtained, not that he had merely helped others to obtain.

The House of Lords so held in dismissing an appeal by Paul Ian Jennings, from the order of the Court of Appeal (Lord Justice Laws, Lord Justice Longmore and Lord Justice Lloyd) (The Times July 12, 2005; [2006] 1 WLR 182) upholding the refusal by Mr Justice Leveson ([2004] EWHC 3028 (Admin)) to set aside a restraint order made against him under section 77(1) of the Criminal Justice Act 1988.

Mr Anthony Elleray, QC and Mr Scott Redpath for Jennings; Mr Andrew Mitchell, QC and Mr Stephen Hellman for the Crown.

LORD BINGHAM, delivering the opinion of the committee, said that Lord Justice Laws had said (paragraph 38), that “obtains” in section 71(4) of the 1988 Act meant that the defendant “should have contributed, to a nontrivial … extent, to the getting of the property.”

However, as explained in R v May (The Times May 15, 2008), the object of the legislation was to deprive the defendant of the product of his crime, not to operate by way of fine. He was not to be deprived of what he had never obtained.

The formulation of Lord Justice Laws was not entirely accurate. Section 71(4) had to be read as meaning “obtained by him”. However, there had clearly been sufficient material to support the making of a restraint order against the defendant.

Solicitors: Hanman Associates, Manchester; Crown Prosecution Service, Special Crime Division.

Admission of relevant bad character evidence

From The TimesMay 16, 2008

Admission of relevant bad character evidence
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Nguyen

Before Lord Justice Dyson, Mr Justice Maddison and Sir Richard Curtis

Judgment March 18, 2008

Where the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge, that could not have such an adverse effect on the fairness of the proceedings that the court ought not to admit such evidence.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing an appeal by Thu Van Nguyen against his conviction on October 2, 2006 in the Central Criminal Court, before Judge Goddard, QC, and a jury, of murder.

Mr Edward Rees, QC, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Simon Denison for the Crown.

LORD JUSTICE DYSON said that on two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day.

The Crown was granted leave to adduce evidence of the first incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged: see section103(1)(a). The defendant was convicted.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The premise on which the appeal was based was wrong; accordingly, the appeal would be dismissed.

Solicitors: Crown Prosecution Service, Old Bailey Trials Unit.

Guidance on making confiscation orders

Posted in confiscation order, House of Lords (case), Times Law Report by mrkooenglish on May 15, 2008

(See also Westlaw report: R v May)

From The TimesMay 15, 2008

Guidance on making confiscation orders
House of Lords

Published May 15, 2008

Regina v May

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

Where codefendants had jointly received property as a result of criminal activity, each was liable to receive a confiscation order representing the entire value, as if he had acted alone, provided he had sufficient assets to meet the order.

The House of Lords so held when giving guidance as to the making of confiscation orders under the Drug Trafficking Act 1994, the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995, or the Proceeds of Crime Act 2002, which brought together the regimes established by the two earlier Acts for post2003 offences.

The committee dismissed an appeal by Raymond George May against the decision of the Court of Appeal, Criminal Division (Lord Justice Keene, Mr Justice Hodge and Judge Jones, QC) (The Times February 15, 2005; [2005] 1 WLR 3902) upholding the decision of Judge Samuels, QC, to make a confiscation order against him.

Mr Andrew Campbell Tiech, QC and Mr Gavin Irwin for May; Mr Oliver Sells, QC and Mr Ivan Pearce for the Crown.

LORD BINGHAM, giving the opinion of the committee, said that the defendant had argued that the intention of the legislation was to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had or to permit recovery of the same sum against different defendants. The overall loss should have been apportioned among those held jointly liable.

However, the sum which the appellant, jointly with others, was found to have fraudulently obtained being, in law, as much his as if he had acted alone and less than his realisable assets, the legislation had required that he be ordered to pay such sum.

For future cases the committee emphasised the following principles: The legislation was intended to deprive defendants of the benefit they had gained from relevant criminal conduct, whether or not they had retained such benefit, within their available means.

It did not provide for confiscation in the sense understood by schoolchildren and others, but nor did it operate by way of fine. The benefit gained was the total value of the property or advantage obtained, not the net profit after deduction of expenses or any amounts payable to co-conspirators.

The court was to ask three questions: 1 Had the defendant, D, benefited from relevant criminal conduct? 2 If so, what was the value of the benefit D had so obtained? 3 What sum was recoverable from D?

Those were separate questions calling for separate answers.

In addressing them the court had first to establish the facts as best it could on the material available, relying, as appropriate, on the assumptions required to be made by the Acts. In many cases the factual findings made would be decisive.

In addressing the questions, the court was to focus on the language of the statutory provision in question. Any judicial gloss or exegesis was to be viewed with caution.

The exercise of the confiscation jurisdiction involved no departure from familiar rules governing entitlement and ownership. D ordinarily obtained property if in law he owned it, whether alone or jointly, which would ordinarily connote a power of disposition or control, as where a person directed a payment or conveyance of property to someone else.

Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, were unlikely to be found to have obtained that property. It might be otherwise with money launderers.

Solicitors: Pattichi Hill & Croques, Ilford; Solicitor, Revenue & Customs.

Wife’s statement can be admitted in evidence

Posted in Admissibility, Criminal Justice Act, Times Law Report by mrkooenglish on May 14, 2008

From The TimesMay 14, 2008

Wife’s statement can be admitted in evidence
Regina v L (Evidence of wife) in the Court of Appeal, Criminal Division
Court of Appeal, Criminal Division

Published May 14, 2008

Regina v L (Evidence of wife)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Reasons May 7, 2008

There was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

The Court of Appeal, Criminal Division, so held in a reserved judgment, giving reasons for dismissing, on April 16, 2008, an appeal by L against his conviction at Mold Crown Court (Judge Merfyn Hughes, QC and a jury) on October 25, 2007, on five counts of indecent assault and four counts of rape.

Mr John Philpotts, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Karl Scholz for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that while the appellant was in custody, the police had approached his wife and she had made a short statement.

At trial the prosecution had called the wife as a witness. However, the judge had ruled that she was not a compellable witness against her husband, under section 80 of the Police and Criminal Evidence Act 1984, and the wife had declined to give evidence.

The prosecution had then applied to admit the wife’s statement to the police under section 114 of the Criminal Justice Act 2003 and the judge had ruled that he had power to do so and that it was in the interest of justice that he should do so.

Should the police have told the wife that she could not be compelled to give evidence against her husband before taking a statement?

The appellant submitted that where the police would be obliged to caution a husband before taking a statement from him, they should tell his wife that she could not be compelled to give evidence against her husband before taking a statement.

Their Lordships could see no basis for such a requirement. The need to caution a suspect arose from the fundamental principle that a person could not be required to give evidence that might incriminate himself. The policy against compelling a wife to give evidence against her husband was not the same.

To caution a wife before taking evidence from her could inhibit the investigation of crime. The policy that prevented a wife from giving evidence against her husband did not require such a limitation upon the powers of investigation of the police to be implied.

Accordingly, there was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

Having said that, it did not follow that there might not be circumstances in which the police would be well advised to make it plain to a wife that she need not make a statement that implicated her husband.

If a question was raised as to whether it was in accordance with the interests of justice to admit a wife’s statement, the prosecution’s hand was likely to be strengthened if it could show that the wife made her statement voluntarily, having been expressly informed that she was under no obligation to make it.

Should the wife’s statement have been excluded automatically or as a matter of discretion?

The appellant submitted that it was tantamount to compelling a wife to give evidence against her husband if, when she refused to testify orally, her statement was adduced as hearsay evidence, so that to adduce evidence in such circumstances offended against the spirit, if not the letter, of section 80 of the 1984 Act.

However, compelling a wife to give evidence was not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 did not pose a legal bar to the admission of such evidence.

Nevertheless, it could well be objectionable if the police took a witness statement from a wife, intending to call her to give evidence, and then sought to place it in evidence when the wife stated that she did not wish to give evidence against her husband.

There was an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence that she did not wish to give. In any such case, whether it was just to admit the statement had to depend upon the facts.

In the present circumstances, their Lordships could see no injustice in admitting the statement.

Solicitors: Crown Prosecution Service, Wrexham.

R v ABDROIKOV & OTHERS

Posted in Criminal Justice Act, House of Lords (case), Jury, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Mance
October 17, 2007

Bias – Crown Prosecution Service – Juries – Jurors – Police officers – Right to fair trial – Juries comprising serving police officers and CPS solicitors – Appearance of bias – s. 321 Criminal Justice Act 2003

FACTS

The appellants (N, G and W) appealed against a decision ([2005] EWCA Crim 1986, [2005] 1 WLR 3538) that the fact that serving police officers and a CPS solicitor were members of the juries which had convicted them did not mean they had been deprived of a fair trial. One of the jurors in N’s trial was a police officer. There was no evidence that he knew any of the police witnesses, although they served in the same force. A juror in G’s case was also a police officer. The victim of the alleged offence was a police officer who shared the same local service background as the juror. Furthermore, the juror was posted to a police station which committed its cases to the Crown Court where G’s case was tried. In W’s case one of the jurors was a solicitor employed by the CPS. N, G and W relied on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done. They argued that that condition was not met where one of the jurors was employed full-time by a body dedicated to promoting the success of one side in the adversarial trial process.

ISSUE

Whether a fair-minded and informed observer would conclude that there was a real possibility that a jury trial was biased where a juror was a serving police officer who shared the same local service background as the police officer who was the victim of the alleged offence, or where a juror was a full-time, salaried, long-serving employee of the prosecuting authority.

HELD (appeals allowed in part) (Lords Rodger and Carswell dissenting)

(i) In 1965 a committee chaired by Lord Morris of Borth-y-Gest made proposals to modernise the rules on eligibility for jury service. The committee considered that the police and those professionally concerned in the administration of the law should continue to be ineligible. The committee was concerned that the trial jury should remain a lay tribunal, and it recognised problems of partiality and perceived partiality if those professionally committed to the prosecution side of the trial process were to sit as jurors. In 2001, Auld LJ reviewed the issue and recommended that everyone should be eligible for jury service save for the mentally ill. He recognised that the risk of bias could not be totally eradicated and envisaged that any question about the risk of bias on the part of any juror could be resolved by the trial judge on the facts of the case. His recommendation was given effect by the Criminal Justice Act 2003 s. 321.

(ii) Most people harboured certain prejudices and predilections, consciously or unconsciously. The institutional safeguards established to protect the impartiality of the jury, when properly operated, did all that could reasonably be done to neutralise those ordinary prejudices. However, the instant cases did not involve the ordinary prejudices and predilections to which people were prone, but the possibility of bias, possibly unconscious, which flowed from the presence on the jury of persons professionally committed to one side of the adversarial trial process. Auld LJ’s expectation that each doubtful case would be resolved by the trial judge was not met if neither the judge nor counsel knew that the juror was a police officer or CPS solicitor, as appeared to be the practice.

(iii) N’s case was not one which turned on a contest between the evidence of the police and of N, and it would have been difficult to suggest that unconscious prejudice, if present, would have been likely to operate to N’s disadvantage. The Court of Appeal had reached the right conclusion in N’s case. However, in G’s case, there was a crucial dispute on the evidence between G and the police officer who was the alleged victim. The victim and the police officer on the jury shared the same local service background. In those circumstances the instinct of a police officer juror to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. G was not tried by a tribunal which was and appeared to be impartial, and his appeal was allowed. In W’s case, it was clear that justice was not seen to be done where one of the jurors was a full-time, salaried, long-serving employee of the prosecutor, Pullar v United Kingdom [1996] SCCR 755 considered. W’s convictions were quashed, R v Sussex Justices Ex p McCarthy [1924] 1 KB 256, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 and Lawal v Northern Spirit Ltd (2003) UKHL 35, [2004] 1 All ER 187 applied.

(iv) There were situations where police officers and CPS solicitors would meet the tests of impartiality in Porter and Lawal. However, that did not mean they would always do so. The indications were that Parliament appreciated that there were some cases in which such people should not serve.

(v) (Per Lords Rodger and Carswell) Parliament had endorsed the view that universal eligibility for jury service was to be regarded as appropriate. In reaching that conclusion it must be taken to have been aware of the test for apparent bias. Parliament must have considered that the risk of bias in the case of serving police officers or CPS solicitors was manageable within the system of jury trial. Many jurors would harbour prejudices of various kinds when they entered the jury box. There was no reason why the fair-minded and informed observer should single out juries with police officers and CPS solicitors as being constitutionally incapable of following the judge’s directions and reaching an impartial verdict. All three appeals should be dismissed.

Richard Carey-Hughes QC, Michael Maher, Richard Hutchings and Simon Berkson (instructed by Hayes Burcombe & Co) for Abdroikov. David Perry QC and Mark Heywood (instructed by Macauley Smith & Co) for the respondents.

R v LOWE

Posted in character, Jury, Res Gestae, s101 Criminal Justice Act, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Divisional Court
Dyson LJ, Henriques J
December 14, 2007

Bad character – Jury directions – Res Gestae – Unsafe convictions – Failure to direct jury – Appropriate bad character direction – s. 101(1)(c) Criminal Justice Act 2003 – s. 101(1)(d) Criminal Justice Act 2003

FACTS

The appellant (L) appealed against a conviction following trial by jury for rape. L had been in a relationship with his victim (V) and they had a young child together. V alleged that L had twice forced her to have sexual intercourse. At trial the Crown applied for leave to adduce bad character evidence and attached to the application a copy of an earlier statement made by L.

The judge granted the application pursuant to the Criminal Justice Act 2003 s. 101(1)(c) and s. 101(1)(d). Evidence was allowed concerning four alleged examples of L’s previous violent and aggressive behaviour. L addressed all four allegations, mainly by way of denial. In his summing up the judge included the incidents in his narrative of the evidence together with L’s responses.

However he decided not to bring the jury back for a further specific direction as to how to approach and utilise the evidence adduced pursuant to the bad-character ruling as the ruling had served simply to add to the evidence as to the history of the relationship. L submitted that the judge wrongly regarded each of the incidents as in effect part of the res gestae so that their admission did not call for specific directions. He further contended that the failure to give a direction to the jury as to their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.

ISSUE

Whether the judge’s failure to give an appropriate direction to the jury in relation to the approach that should be adopted when considering evidence adduced of L’s bad character rendered the resulting conviction unsafe.

HELD (appeal allowed)

The judge was in error and there should have been

  1. a bad-character direction encompassing particular elements such as identification of the incidents, evidence of which had been adduced pursuant to L’s bad character ruling;
  2. a direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them to the criminal standard of proof;
  3. a direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
  4. a direction as to the potential significance of any incident that had been proved, in the instant case that the incidents might throw light on the relationship between V and L and thus bear upon the potential for consent on her part to his sexual advances;
  5. a warning against necessarily according the incidents any significance if an alternative construction served to cast doubt on the construction contended for by the Crown and also against attaching too much weight to the evidence.

The original application was unspecific and of a “scattershot” nature invoking the full, long witness statement without condescending to the specifics. The ruling was similarly non-specific. Had the identification of the bad character evidence been specific from the outset, then minds would more readily have been focused on what was required by way of jury direction and the matter would not have been for consideration as an afterthought. The bad character direction rendered the conviction unsafe and the conviction was quashed.

Julia Smart (instructed by Criminal Appeal Office) for the appellant. J Dawes (instructed by Crown Prosecution Service) for the respondent.

IN THE MATTER OF LEON NIGEL KENTON

Posted in Criminal Justice Act, Murder, sentence, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 1:26AM BST 07/06/2007
Queen’s Bench Division
Rafferty J
May 23, 2007

May 17, 2007 Minimum term – Murder – Setting appropriate minimum term – Criminal Justice Act 2003

FACTS

The court was required to determine the minimum term to be served by the offender (K) who had been sentenced to life imprisonment for murder. The victim (V), who had been aged 17, had been shot in his neck whilst sat in a parked car and had had a gold chain stolen by two assailants on bicycles. K was subsequently seen with bloodstained clothing in possession of V’s necklace. K denied the offence and stated that he had been at his sister’s house at the time. The trial judge concluded that K had been both the gunman and the individual who stole the necklace. The trial judge recommended a minimum term of 14 years, which was also recommended by the Lord Chief Justice and adopted by the secretary of state. K contended that there was no intention to kill, only to cause grievous bodily harm, and that the appropriate minimum term was therefore 13 years.

ISSUE

Determination of the minimum term to be served by K who had been sentenced to life imprisonment for murder.

HELD (judgment accordingly)

Under the Criminal Justice Act 2003 the starting point would have been 30 years. The contention that there was no intention to kill was not accepted and the progress made in prison was not so significant so as to reduce the period. There was no reason to disagree with the recommendation of the trial judge, the Lord Chief Justice and the secretary of state. The appropriate minimum term was 14 years’ imprisonment.

A Gee QC and A Lowcock (instructed by the Crown Prosecution Service) for the Crown. P Birkett QC and P Dockery (instructed by Michael Purdon, Newcastle-upon-Tyne) for the defendant.