Newsletters Criminal Defence 2nd Nov 2020

2 Hare Court Crime Group Autumn Newsletter

Welcome to the Autumn edition of the Crime Group Newsletter.

 

Leon Kazakos QC
Editor

 

Editor’s Note

Welcome to the Autumn edition of the 2 Hare Court Crime Group Newsletter. In an effort to distract us all from the pandemic and a second lockdown the contributors to this edition have tried not to focus on the installation of PVC screens in the Crown Court or on the rapid and proliferating statutory instruments controlling behaviour in Tier 1-3 areas. Instead Sarah Przybylska and Neelam Gomersall write about the effect that COVID has had on custody time limit decisions.  Sarah (as Treasury Counsel) was prosecuting counsel in the case before Whipple J at Woolwich Crown Court that has generated press interest. Brian O’Neill QC and Grace Forbes look at the judgment in the distressing case of Broughton and its effect on causation in gross negligence manslaughter cases. Hannah Thomas examines the challenge in the Supreme Court to admissibility of evidence obtained by vigilante ‘paedophile hunters’. Rebecca Erkan-Bax examines Lawrance and the limitations on the meaning of consent within s74 Sexual Offences Act. Looking to the near future Gudrun Young writes on the new Attorney General’s Guidelines on Disclosure, due to come into force at the end of this year, Paul Renteurs and Sophia Dower examine the Sentencing Act 2020, which received Royal Assent on 22 October, and Stacy Stroud writes on the Modern Slavery (Victim Support) Bill and its long and continuing journey through Parliament. The pandemic has done nothing to simplify the confiscation regime and Laura Stephenson writes in detail about three recent cases, their effect on the landscape and the Law Commission’s important consultation on the Proceeds of Crime Act 2002. Finally, Gavin Irwin writes on the Global Human Rights Sanctions Regime and United Kingdom’s recent adoption of Magnitsky-type sanctions. I am very grateful to all the authors for giving up their time to write. We hope the newsletter is of interest and of use to you.

 

Leon Kazakos QC


 

COVID-19 & Custody Time Limits: An Update

Sarah Przybylska and Neelam Gomersall

The refusal of HHJ Raynor at Woolwich Crown Court to extend the custody time limit in two unrelated cases has been widely reported. An application to extend the custody time limit in a third case was heard by Mrs Justice Whipple, although HHJ Raynor had previously had conduct of the case.

The first three defendants did not object to the extension. The fourth defendant, referred to in Whipple J’s judgment as “P”, resisted the application, and applied for Whipple J to recuse herself on grounds of apparent bias.

Bias

In relation to bias, it was agreed that the test was that set down in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357:

…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

The defence submitted, boldly, that there was an “inevitable” inference of apparent bias and that there had been a change of judge because the senior judiciary was unhappy with HHJ Raynor’s previous decisions and was “forum-shopping” to avoid any further in the same vein. They argued that the appearance of bias further arose from….

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R v Broughton
Clarifying Causation in Gross Negligence Manslaughter

Brian O’Neill QC and Grace Forbes

SUMMARY

In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival, having taken 2-CP, a Class A drug, supplied by her boyfriend, the appellant.

The Prosecution’s case was that having supplied the drug and remained with her, the appellant owed Louella a duty of care to secure medical assistance as her condition deteriorated to the point where her life was obviously in danger.  He was said to have been grossly negligent in failing to obtain timely medical assistance, which was a substantial cause of her death.

The sole evidence relating to causation came from Professor Deakin, a Prosecution expert witness.  His evidence was that had Louella received medical assistance prior to 9.10 PM, there was a 90% chance that she would have survived.

In overturning the appellant’s conviction on appeal, a very strong Court of Appeal held that the case should have been withdrawn from the jury at the close of the Prosecution’s case as had been submitted at trial.  The Prosecution evidence could not, said the Court, prove to the criminal standard that with medical intervention as soon as possible after….

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Vigilante justice: is evidence obtained by ‘paedophile hunter’ groups admissible in criminal proceedings?

Hannah Thomas

Introduction

On 15 July 2020 the Supreme Court handed down its findings in Sutherland (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2020] UKSC 32.

The appeal concerned the use of evidence gathered by ‘paedophile hunter’ groups in public prosecutions (ie. group members posing as underage children online to ‘trap’ paedophiles) and whether the use of that evidence is compatible with an accused’s right to private life under Article 8 of the European Convention on Human Rights (‘ECHR’)

The facts

In summary, the facts of the case were that a member of a paedophile hunter group created a fake profile on the Grindr dating application using a photograph of a 13-year-old boy. The Appellant entered into communication with the ‘boy’ who confirmed he was 13 years old. The Appellant sent him a photograph of his erect penis and arranged a meeting with…..

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Consent and fertility
R v Lawrance, [2020] EWCA Crim 971 and s.74 Sexual Offences Act 2003

Rebecca Erkan-Bax

This judgment, handed down in July 2020, examines the limitations of the meaning of consent within s.74 Sexual Offences Act 2003. It held that a man’s lie about his fertility should not be deemed to be so closely connected to the nature or purpose of sexual intercourse that it is capable of negating consent.

Facts of the case

Lawrance met the complainant on a dating website.  Prior to their first meeting, Lawrance confirmed that he had had a vasectomy. Upon meeting, the complainant sought confirmation that Lawrance had had the procedure before they engaged in sexual intercourse. She detailed that she did not want to get pregnant. Lawrance reassured her that he was infertile and sexual intercourse took place between them on two occasions that evening. Lawrance left during the night and in a text message the following morning he stated, ‘I have a confession. I’m still fertile. Sorry’. The complainant later found out that she was….

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The 2020 Disclosure Guidelines

Gudrun Young

Those who work in the criminal justice system have long known that of all things the phrase “more honoured in the breach than the observance” could be applied to, it is the disclosure regime.  Indeed, even when defending the most serious of criminal cases, almost every day one comes across situations in which the police have not complied with their investigative duties and the CPS have failed to understand or simply had scant regard for their disclosure obligations, either because it suits them not to or because they are too under-resourced to undertake the task properly.

Since 2013, when the Attorney-General’s Guidelines on Disclosure were last revised, these problems have been greatly exacerbated by the sheer scale of digital material generated by police investigations as people increasingly live their lives on smartphones and social media. There has been a series of prosecutions involving allegations of rape or sexual assault which had to be abandoned after….

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The Sentencing Code – Have we finally solved the Sentencing Jigsaw?

Paul Renteurs and Sophia Dower

Despite the sentencing being undertaken by Courts on a daily basis, the body of law which governs this exercise is anything but straightforward. The current law of sentencing is complex, multi-faceted and ever evolving. Sentencing procedure is spread across a vast number of statutes. In its examination of sentencing law, the Law Commission compiled a document of the sentencing law in force as at August 2015, which ran to some 1,300 pages, which did not include the historic sentencing regimes that need to be considered in cases of historic offending. The challenge posed by the vast landscape of sentencing law leads to delay, uncertainty, costly appeals, and unlawful sentences being imposed. A study in 2012 of 262 randomly selected Criminal Division of the Court of Appeal found that 95 of them involved sentences that were ultimately deemed to be unlawful. The task of navigating the law on sentencing to ensure that a lawful sentence is imposed can be just as onerous as the task of deciding what the actual sentence should be. On any view, this is far from a satisfactory position.

These shortcomings have long been recognised by all those who work in the criminal justice system. Material steps to remedy them can be traced back to 2014 when the Law Commission was tasked by the government with the project of consolidating the law and procedure on sentencing in England and Wales. The solution arrived at by the Law Commission is the introduction of a “Sentencing Code”. This will be a single statute, which contains all of the law on sentencing procedure, comprised of a coherent and logical structure to make it more accessible for….

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The Modern Slavery (Victim Support) Bill
Support for victims under the Modern Slavery Act 2015

Stacy Stroud

18 October marked Anti-Slavery Day, a date intended to draw attention to progress in the fight against all forms of slavery and an opportunity to reflect on what more can be done. A major milestone in progress in the UK on this front was the Modern Slavery Act 2015, which brought together the legislative response to modern slavery by consolidating existing offences, introducing a criminal defence for victims of slavery and trafficking, creating new law enforcement powers and establishing the oversight role of the Independent Anti-Slavery Commissioner. However, the Modern Slavery Act 2015 has been criticised for failing to establish a statutory framework for care services and for providing victims with a limited period of care on a non-statutory basis whilst awaiting a National Referral Mechanism (NRM) outcome. The result is that victims of modern slavery are at risk of falling through gaps in the system and being re-trafficked.

Support that helps victims of modern slavery towards long-term safety, stability and well-being increases the likelihood that they will be able to give a full account of their trafficking or slavery background; that they will disclose intelligence about networks of criminal exploitation; and that they will cooperate with the authorities. It also helps prevent victims from returning to their exploiters where they had previously been reliant on them for….

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Recent Proceeds of Crime Developments

Laura Stephenson

  1. R v Balaj [2020] EWCA Crim 1111 – Assessment of Benefit

In Balaj the Court of Appeal considered the assessment of benefit where criminal proceeds came from an illegally rented property, and offered a stark warning about the need to consider confiscation proceedings at the point of charge.

Crown Court confiscation proceedings

Mr Bajaj was a landlord and the underlying criminal offences were breaches of regulations relating to multiple occupancy houses: twenty people were housed in a property fit for eight.

The prosecution argued the benefit figure should represent the pecuniary advantage obtained from the savings made by not properly housing tenants. Rather than relying on the rent figure the respondent actually received from the unlawfully housed tenants, the prosecution presented evidence about the considerable cost of properly accommodating twenty people. They suggested this would have been achieved through a combination of extension and refurbishment to the existing property, or leasing additional property. The prosecution proposed a benefit figure totalling over £917,000.

It was agreed by both parties that the charges had been drafted in such a way that the criminality had taken place on a single occasion and the duration of the criminality could not be extended for the purpose of….

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The Global Human Rights Sanctions Regime and UK’s recent adoption of Magnitsky-type sanctions

Gavin Irwin

On 6 July 2020, the UK introduced the Global Human Rights sanctions regime (‘GHRSR’), under the Sanctions and Anti-Money Laundering Act 2018 (‘the Sanctions Act’).

The GHRSR is, domestically, ground-breaking for two reasons:  it is the first autonomous sanctions regime to be created under the Sanctions Act (previously, the Act had been used to mirror existing EU and UN regimes in UK legislation, made necessary as a result of our withdrawal from the European Union); and, it is the first time the UK has sanctioned individuals and entities expressly for human rights violations (rather than under a geographic/country-specific and/or thematic/sectoral regime).

That said, its implementation did not break new ground internationally, as the GHRSR follows similar measures adopted some time ago in other jurisdictions, notably the U.S., which signed the Global Magnitsky Human Rights Accountability Act into law on 23 December 2016, and has long been in contemplation by the European Union.

The Explanatory Memorandum to S.I. 2020 No. 680 states that:

“This instrument is intended to deter, and provide accountability for, activities which, if carried out by or on behalf of a State, would amount to a serious violation of certain human rights by that State. This instrument enables the….

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