Issue 9, November 12, 2012
Archbold
Review
Cases in brief
Appeal—conviction of offence not in force at time of conduct—
availability of substitution (Criminal Appeal Act 1968 s.3)
ABDUL [2012] EWCA Crim 1788; July 19, 2012
A was convicted of an offence under the Identity Cards Act
2006 at a time when the Act had been repealed by the Identity Documents Act 2010. It was now established as a matter
of principle that the Criminal Appeal Act 1968 s.3 could not
be used to substitute a verdict of guilty of an offence for
which the defendant could, if charged, have been convicted when the offence of which he was in fact convicted did
not exist at the date when the alleged criminal conduct occurred. A’s conviction was quashed and no alternative was
capable of substitution (Shields [2011] EWCA Crim 2343
and MC [2012] EWCA 213 applied).
Assisting suicide—whether defence of necessity available—relevance of European Convention on Human Rights—whether
DPP required to clarify guidance on prosecution policy
R. (NICKLINSON) v MINISTRY OF JUSTICE; R. (AM)
v DPP [2012] EWHC 2381 (Admin); August 16, 2012
The applicants were both victims of “locked in syndrome”
and sought various declarations relating to the position of
assisted suicide in the law of England and Wales.
(1) The Court would not extend the common law so as to declare necessity a possible defence to murder in such circumstances. The reasons set out in Inglis [2011] 1 W.L.R. 1110
and Airedale NHS Trust v Bland [1993] A.C. 789 remained
valid. The courts were not competent to take such a step; it
would be constitutionally inappropriate: it was one thing for
the courts to adapt and develop the principles of the common
law incrementally in order to keep up with the requirements
of justice in a changing society, but major changes involving
matters of controversial social policy were for Parliament
(see Shaw v DPP [1962] A.C. 220, Myers v DPP [1965] A.C.
1001, Abbott v The Queen [1977] A.C. 755 and C (A Minor)
v DPP [1996] 1 A.C. 1); and Parliament, unlike the courts,
would be capable of controlling the consequences of such a
move: it could not be imagined that Parliament would legalise any form of euthanasia without a surrounding framework
regarding end of life care and procedural safeguards. Re A
(Children) (Conjoined Twins: Surgical Separation) [2001]
Fam. 147 did not provide an authoritative foundation for the
applicants’ arguments: its facts were highly unusual, unlike
© Thomson Reuters (Professional) UK Limited 2012
those of the applicants’ cases, and the courts conclusions also
involved consideration of lack of causation, lack of intent or
quasi-self-defence, none of which arose here. Nor did the European Convention on Human Rights Art.8 require voluntary
euthanasia to afford a possible defence to murder. To so find
would be to go far beyond anything which the Strasbourg
court has said and would be inconsistent with R. (Pretty) v
DPP [2002] 1 A.C. 800, R. (Purdy) v DPP [2010] 1 A.C. 345
and Pretty v United Kingdom (2002) 35 E.H.R.R. 1.
(2) The policy guidelines adopted by the DPP as a result of
Purdy did not seek to identify types of case subject to a policy
of non-prosecution based on a consideration of the rights of
the victim. That would have been to introduce a de facto form
of justifiable homicide, which would be for Parliament. On
the other hand, it recognised that there would be cases in
which the public interest did not require prosecution, not because the homicide was justifiable or to encourage its repetition in other cases, but because it was a one off act of compassion. There was a conceptual difference between adopting
the latter approach and carving out from the law a class of
cases in which the law would not be enforced as a matter of
general policy. The factors identified in the policy statement
were intended to reflect this distinction. This was a constitutionally proper approach and was consistent with the terms
of the order in Purdy. It would be wrong to require the DPP
to do more, such as clarify the guidance to allow a person to
assess the probability that his or her actions would result in
prosecution. To do so would go beyond the boundaries of
the European Court of Human Rights jurisprudence; would
be impractical and would be constitutionally inappropriate.
CONTENTS
Cases in brief.........................................................1
Sentencing cases...................................................3
Comments..............................................................4
Feature...................................................................7
In the news.............................................................8
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Detention pending deportation—principles in R. v Governor of Durham Prison ex p. Hardial Singh [1984] 1 W.L.R.
704—whether to be determined by Special Immigration Appeals Commission—relevance to bail applications—approach
of Administrative Court to review of SIAC bail decisions
R (OTHMAN) v SPECIAL IMMIGRATION APPEALS
COMMISSION [2012] EWHC 2349 (Admin);
August 9, 2012
(1) The principles governing the legality of continued detention pending deportation set out in Governor of Durham
Prison ex p Hardial Singh [1984] 1 W.L.R. 704 and explained
in R. (Lumba) v Secretary of State for the Home Department
[2012] 1 A.C. 245 could be taken into account by the Special
Immigration Appeals Commission in considering whether or
not to grant bail. The Court shared the conclusion of Mitting
J. sitting in SIAC that the Commission did have the jurisdiction to consider the Hardial Singh questions itself, but to so
find was not necessary to resolve the question. First, it was
agreed that the grant or refusal of bail was not the same as
determining the legality of detention; indeed it assumed the
power to detain: see for example the observation to that effect in Lumba at [118]. Secondly, however, even if the Court
were wrong to conclude that SIAC was impliedly vested with
the authority to decide the Hardial Singh questions, there
was no doubt that it was entitled to address them. Any tribunal charged with considering bail was bound sometimes to
have to ask, en route to its decision, whether the detention
was still lawful or not. This was particularly so of the factsensitive Hardial Singh issue, where detention may be at one
stage lawful and a little later cease to be so. That was quite
unlike an issue as to whether there existed any power at all
to detain. There was in a case like this no doubt about the
existence of the power to detain; the question was whether
in the precise circumstances it could or could not properly
be exercised. Thirdly, the overarching jurisdiction of the High
Court to intervene if necessary to review the decision of the
Secretary of State and to determine whether detention was
or was not lawful was not ousted by the ability of SIAC to
decide or address the question.
(2) Given the expertise and procedures available to SIAC,
the Court ought to accord considerable respect to the decision of SIAC on a point particularly within its remit, and it
ought not to exercise its undoubted jurisdiction to re-decide
the Hardial Singh issue, unless some hard-edged or florid
error of law or approach was demonstrated to have occurred.
Contempt—newspapers publishing prejudicial material after
conviction on counts relating to one victim while jury still
considering verdicts on another
ATTORNEY GENERAL v ASSOCIATED
NEWSPAPERS AND MGN [2012] EWHC 2029
(Admin); July 18, 2012
The respondent companies’ newspapers reported, after B’s
conviction for kidnapping and murdering a 13-year-old, but
while the jury were still considering a count of attempted kidnapping of an 11-year-old, allegations of his sexual interest in
and rape of schoolgirls and speculation as to his involvement
in another notorious murder, with the result that the trial
judge discharged the jury on the basis of the “avalanche” of
prejudicial publicity. The publications had breached the strict
liability rule in the Contempt of Court Act 1981 s.2(2): as to
the law generally, (a) the fact that the judge had stayed the
proceedings was not of itself determinative (Attorney General
2
v Birmingham Post and Mail [1999] 1 W.L.R. 361 at 371, per
Simon Brown L.J.); (b) the question was whether the publication would have given rise to a seriously arguable ground of
appeal if the trial had been allowed to continue and proceeded to conviction (Attorney General v Birmingham Post and
Mail [1999] 1 W.L.R. 361 and Attorney General v MGN [2012]
1 Cr.App.R. 1); (c) the assessment of risk was to be considered at the time of publication and the conduct of each publisher must be looked at separately: Attorney General v MGN
Ltd [1997] 1 All E.R. 456 at 460; Attorney General v Express
Newspapers [2005] E.M.L.R. 13; (d) the fact that there was
some risk of prejudice by reason of earlier publications was
not conclusive; if several newspapers publish prejudicial material, they could not escape by contending that the damage
has already been done. It was sufficient that the latest publication has afforded an additional or further risk (Attorney
General v Independent Television News [1995] 2 All E.R. 370
at 381 and Attorney General v Express Newspapers); and (e)
The test under s.2(2) generally satisfied the balance required
under the European Convention on Human Rights Art.10:
see para.32 of the decision in Attorney General v MGN. The
material published went way beyond what the jury had been
told. It also went beyond what had been broadcast on the
preceding evening, the newspapers having argued that their
subsequent publication had occasioned no further prejudice.
In particular, the material as to B’s general interest in girls
had not been broadcast. Had the jury not been discharged,
there would have been a seriously arguable point that any
conviction would have been unsafe.
Disposal of hazardous waste—Transfrontier Shipment of
Waste Regulations 2007 reg.23—test for determining change
of status of “waste”—whether offence of strict liability
EZEEMO AND OTHERS [2012] EWCA Crim 2064;
October 16, 2012
E and others were convicted of offences of transporting hazardous waste, specified in Art.36(1) of the European Waste
Shipment Regulation 1013/2006, that were destined for recovery in Nigeria, a non-OECD country, contrary to reg.23 of the
(UK) Transfrontier Shipment of Waste Regulations 2007. If the
material concerned (old cathode-ray televisions and refrigerators containing ozone depleting chemicals) was “waste” at the
material time, it was not contested that it was hazardous.
(1) There was a consistent line of authority that once a substance or object had been discarded (and had therefore become waste), the question whether it had changed its status
to not being waste was one of objective fact. However, the
fact of which the jury must be sure (by reg.23, applying Art.2
of the EC 2006 Regulation) was that the substance or object
was one which the “holder discards or intends ... to discard”.
As Carnwath L.J. had explained in R. (OSS Group Ltd) v Environment Agency and DEFRA [2007] EWCA Civ 611; [2008]
Env. L.R. 8, the European Court, while paying “lip-service to
the ‘discarding’ test, in practice … subordinates the subjective question implicit in that definition, to a series of objective
indicators derived from the policy of the Directive. What is
required from the national court is a value judgment on the
facts of the particular case in the light of those indicators”.
Thus composing suitable directions to the jury presented difficulties. How was the trial judge to direct the jury as to the
meaning of those terms when they did not at first sight mean
what they said? The answer was that the trial judge must
adapt his or her directions to the jury so as to eliminate the
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Issue 9, November 12, 2012
apparent contradictions between the words used and their
purposeful interpretation. On the facts of the present case,
the appellants were concerned with loading containers with
the materials for consignment to Nigeria. The issue whether
they had “discarded or intended to discard” the objects within the containers required consideration of whether what
they had done before loading was sufficient to change their
status to non-waste materials. What mattered was whether
the holder had taken some action or intended to take some
action with respect to the materials, not his or her subjective
belief that he or she had or would be discarding them. The
judge’s directions applied the jury to the correct task.
(2) The offence created by reg.23 was one of strict liability.
There were four elements to the offence: (1) transport by the
defendant, (2) of waste whose export from the Community
was prohibited by Art.36 of the EC regulations, (3) that was
destined for recovery, (4) in a non-OECD country. No state
of mind by the defendant was required by the words used
unless it was to be presumed. Applying the traditional test,
it was apparently that the presumption in favour of mens rea
(Gammon (Hong Kong) Ltd v Attorney General of Hong Kong
[1985] A.C. 1) was displaced. The scheme of the regulations
imposed strict liability in some offences but not others. The
offences were truly regulatory in nature, not aimed at the
public in general but at those who operated the relevant businesses, and were designed to protect the environment and
public health. If the mental elements canvassed by the appellants were to be implied into the offence, it would be substantially deprived of its intended effect of deterring those in the
business from taking risks with the environment.
Sexual offences—consent—relationship between offences before and after complainant’s 16th birthday
C [2012] EWCA Crim 2034; October 9, 2012
C was convicted of a number of counts of sexual offences
against his stepdaughter from when she was five to 16, which
he denied, and from the ages of 16 to 25, in respect of which
he admitted the sexual conduct but claimed it was consensual. C adduced evidence he said showed her consent, including photographs, a video film and text messages. Some of the
later counts covered a time when she was distant from him,
having gone to university. The judge had been right to reject
a submission that the later counts should be withdrawn from
the jury. The evidence relating to each group of counts was
admissible in relation to the other group, and although the
case for the Crown was not presented on the basis that the
complainant lacked the capacity to consent, her account of
what had occurred before she reached the age of sixteen was
plainly relevant to the circumstances in which the admitted
sexual relationship continued after she was 16. The judge had
rightly directed the jury that the prosecution case was that,
the complainant having been abused and sexually controlled
as a child, that that abuse, domination and control continued
after her sixteenth birthday; and that they could only convict
C of the post-16 offences if they were sure that there was a
history of sexual abuse when the complainant was a child.
It was not a case in which the Crown contended for a conviction on the post-16 counts on the basis that the complainant agreed to sexual activity because she had been groomed
and corrupted by the appellant into what might be described
as conditioned consent. Rather the evidence of prolonged
grooming and potential corruption of the complainant when
she was a child provided the context in which the evidence of
© Thomson Reuters (Professional) UK Limited 2012
her apparent consent after she had grown up should be examined and assessed. Properly analysed, on the prosecution
case the evidence of apparent consent did not undermine the
credibility of the complainant that she never consented. The
conclusions reached by the jury were open to it.
SENTENCING CASES
Murder
KHALEEL [2012] EWCA Crim 2035; October 9,
2012
Where a defendant was convicted of murder while on licence from a sentence imposed for manslaughter by reason of provocation committed in similar circumstances, it
was open to the sentencing judge to treat the case as one of
“particularly high” seriousness and adopt a starting point
of 30 years for the purposes of determining the minimum
term. It was wrong to suggest that in any case which fell
outside the specific identified criteria in paras 4 and 5 of
Sch.21 to the Criminal Justice Act 2003, the sentencer must
proceed on the basis of a 15 year starting point. There were
cases properly judged to be of “exceptionally high” or “particularly high” seriousness which fell outside the specific
circumstances described in paras 4(2) or 5 (2) respectively.
The lists in paras 4 and 5 of the Schedule did not create impenetrable compartments and every case would be subject
to its own specific and individual features of mitigation and
aggravation. It did not follow from the absence of any specific reference to a previous conviction for manslaughter
that such a case could not be treated as one of “particularly
high” seriousness merely because it was not specifically
identified as a case which would “normally” be so treated.
In the evaluation of seriousness, consideration must be
given to every previous conviction in accordance with the
provisions of s.143(2) of the 2003 Act.
Supply of drugs to prisoners
SANCHEZ-CANADAS [2012] EWCA Crim 2204;
October 3, 2012
Where a defendant attempted to supply a total of 10¾ grams
of heroin and 23 grams of cannabis resin to a serving prisoner by sending the drugs concealed in a pair of trainers
sent in a package, the case was properly treated for the purposes of the Sentencing Council guideline on drug offences
as a category 4 “significant role” case. The supply of drugs
into prison was in itself inherently more serious than the
supply of drugs generally, because drugs in prison were
a currency, an instrument of power, extortion and repression and they fundamentally undermined the discipline and
good order which was essential to running a prison properly. Guidelines framed in general terms to cover the whole
spectrum of offences could not possibly provide a pen portrait of every offender who would appear in court. The categories of culpability, couched in terms of “role” because
so many drug cases involved multiple offenders operating
in a chain, left a good deal to the experience and judgment
of sentencing judges. Among the examples of “significant
role” in the guidelines there appeared “supply other than by
a person in a position of responsibility to a prisoner for gain
without coercion”. Even without financial gain, the judge
was right to treat the supply to a prisoner as serious. Supply
of drugs into a prison ought normally to be regarded as best
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fitting the culpability category of “significant role”. It would
ordinarily demand a prison sentence, even where there was
no commercial motive and indeed even where the supplier
had come under some moral pressure. Supplies by prison
officers or other prison employees were more serious still
and were separately dealt with by being placed automatically into category 3 in the harm scale, irrespective of quantity.
Relevance of the effect of a custodial sentence on the defendant’s child
PETHERICK [2012] EWCA Crim. 2214; October 3,
2012
The sentencing of a defendant inevitably engaged the Art.8
rights to family life of the defendant and also those of his or
her family, including any dependent child or children. By
definition, imprisonment interfered with the family life not
only of the defendant, but of those with whom the defendant normally lived and often of others as well. Even without
the potentially heart rending effects on children or other dependents, the family was likely to be deprived of its bread
winner, the family home not infrequently had to go, schools
might have to be changed. The right approach in the Art.8
cases was to ask these questions: is there an interference
with family life? Is it in accordance with law and in pursuit
of a legitimate aim within Art.8.2? Is the interference proportionate given the balance between the various factors? In
sentencing, the first two questions would usually be straightforward. There would always be some interference with family life and it would be in accordance with law and due to
legitimate aims. It was the third question which might call for
careful judgment. Before any question of Art.8 or the Human
Rights Act 1998 was thought of, sentencing practice in England and Wales recognised that the presence of dependent
children was a relevant factor to sentencing. It followed that
the criminal court ought to be informed about the domestic
circumstances of the defendant, and where the family life of
others, especially children, would be affected, would take it
into consideration. It would ask whether the sentence contemplated was or was not a proportionate way of balancing
such effect with the legitimate aims of sentencing. The legiti-
mate aims of sentencing which had to be balanced against the
effect of a sentence on family life included the need of society
to punish serious crime, the interests of victims that punishments should constitute just deserts, the need of society for
appropriate deterrence and the requirement that there ought
not to be unjustified disparity between different defendants
convicted of similar crimes. It needed to be remembered that
just as the sentence might affect the family life of the defendant and of his or her innocent family, so the crime would very
often have involved the infringement of other people’s family
life. It would be especially where the case stood on the cusp
of custody that the balance was likely to be a fine one. In
that kind of case the interference with family life of one or
more entirely innocent children sometimes tipped the scales
and meant that a custodial sentence otherwise proportionate might become disproportionate. The likelihood of the interference with family life which was inherent in a sentence
of the imprisonment being disproportionate was inevitably
progressively reduced as the offence was the graver. In a
case where custody cannot proportionately be avoided, the
effect on the children or other family members might offer
grounds for mitigating the length of sentence, but if it did,
there could be no standard or conventional reduction by way
of percentage or otherwise. It was a factor which was infinitely variable in nature and must be trusted to the judgment
of experienced judges. Those briefly stated principles were
sufficient to guide sentencing judges and did no more than
reflect the practice of the criminal courts since long before
the arguments were habitually couched in terms of Art.8 or
human rights generally. The principles were not affected by
the question which was sometimes raised, namely whether
Art.3 of the United Nations Convention on the Rights of Children and the similarly expressed Art.24.2 of the European
Union Charter of fundamental rights, did or did not apply to
the sentencing of adults. It was not necessary to resolve the
question whether Art.3 applied because it was clear that even
if those provisions of those conventions applied, it was the
balancing which was required by Art.8 which was the effective test for sentencing.
Comments
To Tweet or not to Tweet? “Speak not what they ought to
say, but what they feel”1
By Maya Sikand, Garden Court Chambers
Last month the DPP announced that Daniel Thomas, a semiprofessional footballer, who posted a homophobic message
about the Olympic divers Tom Daley and Peter Waterfield
on Twitter, would not be prosecuted.2 This was not the first
time he has had to deal with the line dividing free speech
and criminality in the context of social media websites. The
case of Paul Chambers, better known as the “Twitter Joke
1 Edgar in King Lear, cited by the LCJ at para.28 of the judgment.
2 http://blog.cps.gov.uk/2012/09/dpp-statement-on-tom-daley-case-and-social-mediaprosecutions.html
4
Trial” (and which has its own Wikipedia entry), contained
all the necessary ingredients to attract the level of media
attention and public outcry it did: the spectre of terrorism,
the criminalisation of “tweeting” and free speech as well as
unrequited love. Its legal citation (Paul Chambers v DPP
[2012] EWHC 2157 (Admin), [2012] 8 Archbold Review 1)
came to symbolise more than legal convention—the opposition to the appeal against the conviction for an offence
contrary to s.127(1)(a) and (3) of the Communications Act
2003 was widely reported to have been personally insisted
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Issue 9, November 12, 2012
upon by the Director of Public Prosecutions (DPP). Indeed,
following the judgment of the Lord Chief Justice (LCJ) delivered on July 27, 2012, the DPP took the somewhat unprecedented step of issuing a public statement on July 30,
2012, which read as follows3:
Clarification on decision making in Paul Chambers
case
The DPP was not the reviewing lawyer in the case of Paul Chambers, but
in June he did instruct the team managing it to consider conceding the
appeal. This was considered and progressed, however, at a later stage the
DPP was advised that, as a matter of law, conceding the appeal would not be
possible. This is because it was not possible because the key finding of fact
in the case was a finding of the Crown Court, which only the High Court
could overturn. The DPP accepted that advice and reluctantly agreed that
the appeal had to proceed.
This “clarification” raised more questions than it answered—the most obvious one being: who advises the DPP
(a distinguished human rights lawyer himself) on such matters of law? Was he not told that it was possible not to resist
the appeal or to take a neutral stance? As pointed out by
Jonathan Cooper QC in his blog4:
Practice Direction 52 [of the CPR] provides that where the parties agree as
to terms of disposal of the matter, it can be listed as an uncontested proceeding without the necessity of the parties or their representatives having to
attend. The DPP did not take this step.
Returning then to the true legal issues in this case, it does
seem extraordinary that it took as many attempts and eminent silks as it did to set aside the conviction. The question
to be decided was whether the message posted by Chambers
on “Twitter” constituted the sending by a public electronic
communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications
Act 2003 (the offence can be committed in a number of
ways—if the message is either “grossly offensive” or of an
“indecent” or “obscene” or, as in this case, “menacing” character). Chambers failed on appeal to the Doncaster Crown
Court from the Doncaster magistrates’ court and then in his
first appeal by way of case stated to the High Court in February 2012, originally argued on both common sense and human rights grounds (Art.10 of the ECHR). Most unusually
the Divisional Court (in this instance Gross L.J. and Irwin J.)
could not agree, thus there was no judgment and the matter
ended up before the LCJ, Owen J. and Griffith Williams J.
Despite the complex way the questions were drafted in
the stated case, the true issues are dealt with in a few paragraphs in a pragmatic and straightforward way by the LCJ.
The real question in issue was whether Chambers’ tweet
was of a “menacing character”. The “Twitter” ID Chambers
used was his real name (@PaulJChambers), with a photograph of himself, and the “tweet” was all about wanting to
fly to from Doncaster (where he lived) to Belfast to see his
girlfriend (whom he met on “Twitter”) and read as follows:
Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your
shit together otherwise I am blowing the airport sky high!!
By way of introduction, at [28] the LCJ said as follows:
3 According to Private Eye (Issue 1320, August 2012, “What a Silly Twitter!”) this was a
second press release, the first one apparently read: “The DPP was not the decision maker
in this case, nor did he overrule his subordinates. Consideration was given to conceding the
appeal, but as a matter of law this was not possible.”
4See Jonathan Cooper’s blog for more details of the case: http://shadowofthenoose.
com/2012/07/29/the-twitter-joke-trial-the-punch-line/comment-page-1/
© Thomson Reuters (Professional) UK Limited 2012
The 2003 Act did not create some newly minted interference with the first
of President Roosevelt’s essential freedoms—freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular
or unfashionable opinion about serious or trivial matters, banter or humour,
even if distasteful to some or painful to those subjected to it should and no
doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for
those who have the inclination to use “Twitter” for the purpose, Shakespeare
can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they
are free to speak not what they ought to say, but what they feel.
And then at [31], the LCJ, finally said what had no doubt
long been hoped for by Mr Chambers and his many supporters (which included Al Murray, Stephen Fry and tens
of thousands of “Twitter” users):
Before concluding that a message is criminal on the basis that it represents
a menace, its precise terms, and any inferences to be drawn from its precise
terms, need to be examined in the context in and the means by which the message was sent. The Crown Court was understandably concerned that this message was sent at a time when, as we all know, there is public concern about acts
of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence
is not directed to the inconvenience which may be caused by the message. In
any event, the more one reflects on it, the clearer it becomes that this message
did not represent a terrorist threat, or indeed any other form of threat. It was
posted on “Twitter” for widespread reading, a conversation piece for the appellant’s followers, drawing attention to himself and his predicament. Much more
significantly, although it purports to address “you”, meaning those responsible
for the airport, it was not sent to anyone at the airport or anyone responsible for
airport security, or indeed any form of public security. The grievance addressed
by the message is that the airport is closed when the writer wants it to be open.
The language and punctuation are inconsistent with the writer intending it to
be or to be taken as a serious warning… Finally, although we are accustomed
to very brief messages by terrorists to indicate that a bomb or explosive device
has been put in place and will detonate shortly, it is difficult to image a serious
threat in which warning of it is given to a large number of tweet “followers” in
ample time for the threat to be reported and extinguished.
The other big issue before the Court was the requisite mens
rea. It held that as the message lacked the characteristic
required for the purposes of the offence, the issue of the
appellant’s state of mind when he sent it, and whether it
was criminal, did not arise for decision. It did however deal
briefly with this question, concluding at [38]:
We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that
the message should be of a menacing character (the most serious form of the
offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or
apprehension in any reasonable member of the public who reads or sees it.
We would merely emphasise that even expressed in these terms, the mental
element of the offence is directed exclusively to the state of the mind of the
offender, and that if he may have intended the message as a joke, even if a poor
joke in bad taste, it is unlikely that the mens rea required before conviction for
the offence of sending a message of a menacing character will be established.
In setting aside the conviction and reinstating Mr Chambers’ good character, this judgment restores our faith in
our justice system and will, at least for now, stop the British
public from thinking that the law is indeed an ass. The good
news (far too late for Paul Chambers) is that the DPP has
now said that:
To ensure that CPS decision-making in these difficult cases is clear and
consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be
brought in the cases that arise for their consideration. In the first instance,
the CPS will draft interim guidelines…5
5 http://www.cps.gov.uk/news/press_statements/dpp_statement_on_tom_daley_case_
and_social_media_prosecutions/index.html
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Opting Out Of EU Criminal Justice?
By Helen Malcolm QC, 3 Raymond Buildings, Gray’s Inn
Since Professor John Spencer’s Feature on “Opting out of
EU Criminal Justice?” [2012] 7 Archbold Review 6–9, there
have been some important developments. First the Centre
for European Legal Studies in Cambridge published a comprehensive paper entitled “Opting out of EU Law: What is
actually involved?” by Alicia Hinarejos, Professor Spencer
and Steve Peers. Then, during an interview in Brazil on September 28, 2012, the Prime Minister announced that the decision had already been taken that the UK would exercise
its right to opt out under Protocol 36 of the Lisbon Treaty.
On October 15, 2012 the Home Secretary made a rather
longer (and rather less definite) statement to the House of
Commons in which she said that “the Government’s current thinking is that we will opt out of all pre-Lisbon police
and criminal justice measures and then negotiate with the
Commission and other member states to opt back into
those individual measures that it is in our national interest
to rejoin”.
It is clear this issue has a long way to run. There seems to
be no agreement within the Coalition, either as to whether
the UK should opt out, or if we do, as to which (if any) measures we should ask to opt back in to. The Home Secretary
has promised a vote on the matter in both Houses, and a
commitment to consult the European Affairs, Home Affairs
and Justice Committees, as well as the European Scrutiny
Committee and the House of Lords European Union Committee.
So why does it matter? There are some 130 odd measures
which will be affected by a decision to opt out. Of those,
some involve substantive law, some are procedural, and yet
more deal with police and judicial cooperation; some assist
in the process now known as “mutual recognition”. Some
of the measures have been widely seen as successful; others have been of less use, or only partially implemented,
or superceded by more recent measures (to which the UK
has quite separately chosen to opt in). Some, such as the
provision facilitating the use of previous foreign convictions
in proceedings in the UK, have become familiar territory;
others are less well known.
Arguably the most important provision which would be
caught is the European Arrest Warrant (“EAW”). In 2009
the UK received some 4,000 EAWs; in 2010 that number
rose to 4,578. The EAW ensured the return of Hussain
Osman from Rome to the UK in 43 days, after the July
21, 2005 terrorist outrages in London. More recently, the
EAW ensured the return of maths teacher Jeremy Forrest
from France after he crossed the border with a 15-yearold pupil—despite the fact that 15 is the age of consent in
France.
There is no doubt that the EAW could and should be improved. The lack of a de minimis rule means that courts in
this country have seen requests for the return of fugitives
over such weighty crimes as theft of a chicken (or in one
case a piglet; in another a wheelbarrow), or failure to pay
the last HP instalment on a second hand Hoover. Clearly it
may be thought inappropriate to use the panoply of international law in such cases. In addition, the implementation of
proper cross border bail provisions (due to be implemented
6
by Member States by December 1, 2012 in another provision which would be caught by the opt out) would alleviate what can amount to real hardship. However, on balance
all parties on all sides of the criminal justice system seem
to agree that the measure should be retained, with amendments.
Another important area is police and judicial cooperation.
Europol was set up under a Convention which came into
force in 1998, in order to improve cooperation between
Member States seeking to combat serious transnational
crime. It has a British Director. It is currently supporting
700 investigations into organised crime and terrorist networks in Europe; and the UK is actively involved in over 200
of those 700. The European Police College has been established at Bramshill. Eurojust has had two British Directors
to date. Most important, swift access by police to information systems (both obtaining information and posting alerts
for wanted people) is governed by an opt out provision.
Joint investigation teams—including that which is currently
investigating the murders of a British family near Annecy
and the serious injury to one of the daughters—rely on an
opt out provision.
There is no clarity as to how the opt out would operate in
the short term, even if the Government were to request permission to opt back in to some measures. No transitional
provisions are yet available, but it seems that the opt out
and opt back in may not be able to operate simultaneously.
That would leave various fugitives, arrested under an EAW
but not yet returned, in legal limbo. Further, there are questions as to which provisions would operate instead. Would
we automatically revert, for instance, to the 1957 Extradition Convention? And would other Member States’ constitutions allow them to revert to a measure which they have
abandoned in relation to the UK? Would we need to negotiate fresh bilateral treaties? Would the UK wish to revert to
provisions which, by definition, were acknowledged to be
imperfect when they were replaced by the measures from
which we now wish to opt out? Finally, the UK can be held
liable for the financial costs to other Member States of the
decision to opt out. If, for instance, our stance required an
amendment to part of Bulgaria’s constitution, it seems the
UK might have to pick up the bill—which is as yet unquantified.
There has so far been no reasoned explanation for why we
should want to opt out of provisions that have proved either
useful and successful, or harmless—other than the political
argument. The Bar Council has called for a consultation on
the topic, as have the three Law Societies of England and
Wales, Scotland and Northern Ireland. The issue is to be
discussed further at a European Law Workshop at the Bar
Conference on November 10, 2012.
Whatever decision is taken ultimately, it should be noted
that we are bound by a host of other EU criminal law provisions, either within the Treaty of Lisbon itself or to which
we have opted in since 2009. EU criminal law is here to stay,
but its precise course is likely to be unclear for some time
to come.
© Thomson Reuters (Professional) UK Limited 2012
Archbold
Review
Issue 9, November 12, 2012
Feature
Sentencing for contempt where the witness refuses to
give evidence
By HH Judge Denyer QC
Sections 2(1) and (2) of the Criminal Procedure and Attendance of Witnesses Act 1965 (“the Act”) provides a mechanism whereby, on application, the court may issue a witness
summons requiring a person to attend the Crown Court
to give evidence. Section 2D of the Act (introduced in the
Criminal Procedure and Investigations Act 1996) enables
the court itself, of its own motion, to issue such a summons.
By s.3(1) disobedience to a witness summons is to be regarded as a contempt of court “and may be punished summarily by that court as if the contempt had been committed
in the face of the court”. The maximum period of imprisonment for such contempt is three months (s.3(2)). In Sergiou
(1983) 5 Cr.App.R.(S.) 227 the appellant was sentenced to
14 days imprisonment for failing to comply with a witness
summons (then called a witness order) and the sentence
was upheld in the Court of Appeal.
A witness who does attend but then refuses to give evidence is likewise guilty of a contempt of court. However,
the three month limitation on length of sentence does not
apply. Instead the two years maximum set out in s.14(1) of
the Contempt of Court Act 1981 governs. In Montgomery
(1995) 2 Cr.App.R. 23, Potter J. said:
Whilst it is legitimate in the case of a witness refusing to testify to have regard to the fact that the maximum sentence for failing to comply with a witness order is three months, that should not inhibit the court from imposing
a sentence substantially longer than three months for a blatant contempt in
the face of the court by a witness who has refused to testify, fully realising
what he was refusing to do (at p.27).
In the same case, the judge went on to set out the principal
matters which should affect the length of any sentence (at
p.28). These may be summarised as follows:
(a) the gravity of the offence being tried;
(b) the effect upon the trial;
(c) the reasons for failing to give evidence;
(d) whether the contempt is aggravated by “impertinent defiance of the judge”;
(e) the scale of sentences in similar cases (though each case
turns on its own facts);
(f) the antecedents, personal circumstances and characteristics of the person in contempt;
(g) whether or not a special deterrent is needed.
Bearing these principles in mind, it is interesting to look at
sentence ranges in the reported cases. Because there is an
appeal “as of right” pursuant to s.13 of the Administration of
Justice Act 1960, these decisions are those of the Court of
Appeal. However, before doing so, a further passage from
Montgomery is worth remembering:
it will usually be necessary to impose a custodial sentence of some kind in
order to mark the gravity of the matter and to stiffen the resolve of other
witnesses.... who may be minded to default on their duty. However, in most
such cases a moderate period of custody is all that will be required (at p.29).
© Thomson Reuters (Professional) UK Limited 2012
In Jardine (1987) 9 Cr.App.R.(S.) 41 a sentence of six
months imprisonment was upheld. This was a case where
the appellant had made a deal with the prosecution that he
would give evidence against others involved in the robbery,
had got himself sentenced on that basis on very favourable
terms and then ratted on the deal when the time came to
give evidence. The annoyance of their Lordships was palpable—this was “a devious and deliberate ploy operated by
the appellant”. Having regard to the nature of the charge at
trial and the important (but not vital) evidence the appellant
could potentially give, six months was appropriate.
In Leonard (1984) 6 Cr.App.R.(S.) 279 the appellant was the
only eye witness to an incident of criminal damage. The
defendant was his friend. At trial the appellant refused to
give evidence. The trial judge sentenced him to 18 months
imprisonment. Having regard to the fact that (a) the offence was not of the utmost gravity, (b) had the defendant
been convicted he would not have received an 18 month
sentence, (c) no special deterrent was required, and (d)
the requirement to bear in mind the 1965 Act with its three
months maximum, the sentence was reduced to 28 days.
In Samuda (1989) 11 Cr.App.R.(S.) 471, the appellant refused to give evidence at a trial for attempted murder where
he had been the intended victim. The trial judge sentenced
him to 15 months in prison. This was reduced to six months.
In Montgomery (above) the appellant refused to give evidence in a multi-defendant trial. His evidence was important
because he implicated the person said to be “the main man”
(my words). The trial judge initially passed a sentence of
21 months for this contempt which he later reduced to 12
months. The Court of Appeal said that three months was appropriate, particularly because it was obvious that the appellant was in fear of reprisals both for himself and for his family.
In Robinson (2006) EWCA Crim 613, the appellant (who had
been a defendant in a drugs case but who had pleaded guilty
on a basis and was sentenced accordingly) was called as a
witness by another defendant. He refused to answer questions in cross-examination by the prosecution designed to
lead to the identity of his dealer. He persisted in his refusal
in spite of being warned by the judge as to the possible consequences. The Court of Appeal upheld a sentence of four
months imprisonment.
Finally, in Rainford (2007) 2 Cr.App.R.(S.) 18; (2006) EWCA
Crim 3226, the appellant was the main witness in a case involving death by dangerous driving. He refused to give evidence and the case against the defendant had to be dropped.
The appellant pleaded guilty to the allegation of contempt
arising out of his refusal to testify. The trial judge sentenced
him to six months detention. He accepted that the appellant
had been subject to threats involving the safety of his mother
and girlfriend and that they lived in a close knit community
which raised the real possibility that the threats might be car-
7
Archbold
Review
Issue 9, November 12, 2012
ried out. Dismissing the appeal, Forbes J. said (at para.12):
As the judge observed when passing sentence, this was a blatant contempt
of court perpetrated by a crucial witness in an important case involving
the death of another. It is clear from his carefully expressed sentencing
remarks that the judge did take fully into account all the relevant mitigation.
In our judgment, the sentence passed was well within the range that was
appropriate in such a case. We are quite satisfied that it was not manifestly
excessive.
Conclusion
It is clear that the three month maximum laid down in the
Act for contempt arising out of a failure to attend does not
set the limit in respect of contempt arising from a refusal to
testify, albeit that it is an important factor. It seems equally
clear that when long sentences have been imposed by trial
judges, they have been reduced significantly by the Court
of Appeal. Six months looks to be close to the maximum.
In the news
Deaths on probation
Deaths in custody appear to have been a real concern both to
the prison service and to the wider community for many years:
statistics are published annually, and receive media attention.
In particular, suicides in prison are carefully monitored and
investigated. Deaths in custody and in Approved Premises
are investigated by the Prisons and Probation Ombudsman.
A Ministerial Council on Deaths in Custody aims to bring
about a “continuing and sustained reduction in the number
and rate of deaths in all forms of state custody in England and
Wales”.1 Yet many more offenders every year die when under
the supervision of the Probation Service, either when on license from prison or while serving a community order. Why
do these deaths not seem to get the same attention?
In September, the Howard League for Penal Reform, published a report (by Loraine Gelsthorpe, Nicola Padfield,
and Jake Philips) which analysed data obtained both by
the Howard League and by the authors under Freedom
of Information (FOI) requests both from probation trusts
and from the Ministry of Justice. The data related to the
number of adults who have died under probation supervision, including deaths following release from custody. The
original request arose from increasing awareness on the
part of the Howard League that not enough is known about
these deaths: internal reports, which have been collected
since 2005, had not been put into the public domain. The
basic “rules” are to be found in Probation Circular 60/2005,
which required an Assistant Chief Officer (ACO) in every
Probation Area to be responsible for monitoring deaths
under supervision and for making an annual report to the
National Probation Service. A template for this annual report was attached to the circular and is known as Annex
A. Although the forms were subsequently changed in PC
37/2007 the reporting procedure has remained the same.
When a staff member supervising an individual becomes
aware of their death, he or she should immediately report
the death to the Senior Probation Officer (SPO) responsible
for that case. Within 24 hours of the office being informed
of the death, the SPO should complete a report informing the Assistant Chief Officer (ACO) of that death (this
report is known as Annex B). The ACO should review the
circumstances of the person’s death and discuss them with
the SPO and other relevant staff. When the investigation
is complete, the SPO should arrange an interview with the
supervising officer so that the SPO can prepare a further
brief report, known as Annex C. Examples of the forms are
contained in the Report, and it was these completed forms
1 See Independent Advisory Panel on Deaths in Custody, End of Term report (2012).
8
which were obtained from probation areas as the background to this research.
The Report presents the NOMS management information
largely as received from the Ministry of Justice and this information is contrasted with the material obtained from individual Probation Areas by the Howard League. Notwithstanding
difficulties in obtaining accurate data, a total of 2,275 deaths
of men and 275 deaths of women under probation supervision were counted across the financial years for which data
was requested (2006–07—2009–10). It is possible to calculate
that there was a death rate of 5.1 per 1,000 people under supervision in 2009–10, for instance, twice as high as the rate of
deaths in custody. The data show that whilst a high proportion of the deaths related to natural causes (over 25 per cent
in each year); suicide (not less than 13 per cent in each year),
alcohol issues (8 per cent in each year for which there are
figures), unlawful killing (5 per cent in each year), and misadventure/accident (not less than 8 per cent) also feature in
significant proportion. Also, a large number of deaths were
classified as “unknown” cause (not less than 15 per cent).
The data suggest that men and women under probation supervision are equally likely to die from natural causes. Men
are more likely to commit suicide, die from a drug overdose,
be unlawfully killed or to die from an accident. Women are
more likely to die from alcohol-related issues. Younger people (those aged 18–24) on probation supervision are underrepresented in the deaths (accounting for 35 per cent of those
under supervision but 14 per cent of the deaths); yet people
aged 25–49 are over-represented (accounting for 59 per cent
of those under supervision but 64 per cent of all deaths); people aged 50 and above are also over-represented (accounting
for 5 per cent of those under supervision but 21 per cent of
deaths). Women aged 36–49 years accounted for 45 per cent
of all deaths of women under supervision.
The reports in the various Annexes were often short, and
focus unsurprisingly on the specific questions asked. It is
not clear how far probation staff are equipped to support the
families of those who die under probation supervision nor
how far they are prepared to do this, or can do this, within the
context of other duties and constraints. The Report identifies
what is and what is not recorded by probation staff. There is
some suggestion that the forms may be seen primarily as a
tool for self-protection, rather than contributing to an understanding of deaths under supervision and improving related
practice. Individual reports seem often to be written in a defensive tone. Whilst this suggests the need for more support
for staff, the Report also calls for an “ethics of care”. This
revolves around the moral salience of attending to and meeting the needs of others (as individuals and as a state) and
the conception of persons as relational rather than a collec-
© Thomson Reuters (Professional) UK Limited 2012
Archbold
Review
Issue 9, November 12, 2012
tion of independent individuals. It is important to reflect on
whether things might have been done differently, and if so,
how, in order to prevent deaths under probation supervision.
There needs to be investigation of suicide cases in particular,
to reflect the fact that there is “care” for this group of people.
Additional information is needed. Whose responsibility is it
to care, and to worry about, and to learn from, these deaths?
And are the deaths under supervision related to length of
prison sentence or licence conditions, for example? Which
other agencies beyond the Probation Service were involved
at the time of death? Were different agencies aware of the
vulnerabilities of individuals, or this group of people? Did
the prison authorities inform the local Probation Service
where people were perceived to be particularly vulnerable
upon release? What information, if any, was received from
prisons to inform probation practice for those on licence?
Does progress through the prison system, and release,
often from an open or local prison to more restrictive Approved Premises “in the community” actually “work”? This
Report raises many questions about the extent to which
prisons and probation actually work together—“beginning
to end” sentence management can still seem a long way off.
The Report is available at www.howardleague.org/deathsonprobation/
Consultation
Conditional Cautions
Two consultations are currently open (only until November 1) on Conditional Cautions: one on the draft Code of
Practice for Adult Conditional Cautions, and the other for
Youth Conditional Cautions: see https://consult.justice.
gov.uk/consultation_finder. Perhaps the consultation on
youth conditional cautions is more dramatic: the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 radically
changes the law introduced in the Crime and Disorder Act
1998 (which had abolished cautions for juveniles, replacing
them with warnings and reprimands). The Criminal Justice
and Immigration Act 2008 s.48, had introduced conditional
cautions for young people aged 10–17, but this has only
been implemented so far in five areas. Now reprimands and
warnings are going again, and it’s back to cautions.
But even adult conditional cautions have not so far proved
very popular. The CPS publishes quarterly figures. Between their introduction in 2005 and March 2009, there
were 15,384 conditional cautions nationally (there was “full
rollout” only in March 2008). In Quarter 1, of 2012–13:
there were only 966 pre-charge conditional cautions nationally, and 167 post charge (a majority for criminal damage).
These are described by the CPS as being:
•
Rehabilitative: 59 with Drugs Intervention Programmes, 28
alcohol related conditions and 150 “other”.
•
Reparative: 24 with RJ conditions, 828 with compensation
conditions, 169 Letters of Apology, 16 “other”.
•
Restrictive: 49.
Why are they so rarely used? One major reason is cost. The
police have not wanted to use them because of the “burden”
of consulting the CPS. This is why these consultations are
necessary: the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 has removed the requirement for CPS
involvement. The Government states that it is also seeking
to introduce a “clearer” and “simpler” national framework
for dealing with offending out of court. This is certainly necessary: there have been a number of highly critical official
reports, e.g. the two recent Criminal Justice Joint Inspections: one in 2011, Exercising Discretion: the Gateway to Justice1 and another published in September this year, Facing
Up To Offending: Use of restorative justice in the criminal
justice system: a joint thematic inspection by HMIC, HMI
1 www.hmcpsi.gov.uk/documents/services/reports/THM/CJI_20110609.pdf
© Thomson Reuters (Professional) UK Limited 2012
Probation, HMI Prisons and the HMCPSI.2
The CPS will retain some sort of a role: under s.37A of the
Police and Criminal Evidence Act 1984 the DPP may issue
guidance (“the DPP guidance”) for custody officers and the
CPS which will prescribe the offences and circumstances in
which a conditional caution is permitted. And as the consultation cryptically states: “Any other prosecutor may publish
similar guidance”.
Conditional cautions were proposed by Auld L.J. in his Review of the Criminal Courts of England and Wales (2001). He
thought that they
could take the form of a discretionary power…not to prosecute, or to withdraw a prosecution, on condition (for example) that the offender submitted
to some form of penalty or supervision of his conduct and/or offered some
form of redress and/or submitted to medical or other treatment’ (p.381).
However, he was also clear that any such scheme should be the
responsibility of the Crown Prosecution Service. They were introduced in Pt 3 of the CJA 2003 (ss.22–27). The conditions to be
attached to a conditional caution were originally for rehabilitative or reparative purposes only (s.22(3)), but this was changed
in s.17 of the Police and Justice Act 2006. The introduction of punitive financial conditions provoked fierce debate in the House
of Lords. For example, Baroness Anelay said:
The Government are taking our judicial system down a route that could
lead to the widespread use of administrative punishment instead of the impartial hearing that is given in a magistrates’ court. Fair trial safeguards and
the involvement of the independent court in the delivery of punishment are
in the wider public interest and in the interest of the victims of crime.
There are many issues to consider. The overall compliance
rate for the last 12 months was 81.4 per cent (down from 84.7
per cent the year before). But surely the most important
issue is transparency and accountability. Was Lord Judge
right to suggest in his lecture last year “Summary Justice in
and out of court”, The Police Foundation’s John Memorial
Lecture3 that statistics on the use of “out of court” disposals should regularly be publically reported by the police to
local magistrates’ courts? If the police are encouraged to
save public money by imposing burdensome out of court
“punishments” on both adults and children, there need to
be strong safeguards against inconsistency and abuse.
2 See also Padfield, Morgan and Maguire (2012) “Out of court, out of sight? Criminal
sanctions and non judicial decision-making” in Maguire, Morgan and Reiner (eds), Oxford
Handbook of Criminology, 5th edn, pp.955–967.
3 Available at www.judiciary.gov.uk/media/speeches/2011/lcj-speech-john-harris-memoriallecture-07072011
9
Archbold
Review
Issue 9, November 12, 2012
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