2 Hare Court Crime Group Autumn Newsletter
Welcome to the latest edition of the Crime Group Newsletter.
Fiona Robertson
Editor
Foreword
It has been a busy year in the criminal world with developments in several areas.
Nneka Akudolu KC and Rebecca Malczewski detail the approach to sentencing in cases brought pursuant to the Female Genital Mutilation Act 2003 following Nneka’s representation of Amina Noor (R v Noor [2024] EWCA Crim 714).
The publication of the Sentencing Council’s guidance on sentencing pregnant and postpartum defendants are considered by Sophia Dower. This guidance provides long overdue clarity on how to approach cases where this is a mitigating factor.
Two common problems, the correct approach to them, and why abuse of process should not be the first stop are summarised by Gavin Irwin, considering the approach where a prosecutor is not available to prosecute a trial, and Harry Laidlaw who addresses the use of res gestae evidence in domestic violence cases.
Finally, Redmond Traynor sets out the findings of the Court of Appeal in Hughes v The King [2024] EWCA Crim 357 which provides a helpful reminder to practitioners as to the starting point when assessing equitable interest in property.
R v Noor (Amina) (2024) EWCA Crim 714: The approach to sentencing in cases brought pursuant to the Female Genital Mutilation Act 2003
Nneka Akudolu KC and Rebecca Malczewski
She was sentenced to seven years’ imprisonment, which was the subject of this appeal.
Prosecutions under the Female Genital Mutilation Act 2003 are rare. This was the first case brought under section 3 and only the second case prosecuted under the Act to result in a conviction.
This offence carries a maximum sentence of 14 years’ imprisonment. The Sentencing Council issued a guideline in relation to the section 3A offence under the Act (failure to protect a girl from risk of genital mutilation). However, there is no guideline in relation to the Act’s other offences.
The factual background
In 2006, the appellant travelled to Kenya from the UK with a three year old. While there, the appellant said her mother convinced her that the child should be subjected to FGM. The appellant and other family members had undergone the procedure themselves.
The appellant said she took the child to “a clinic place” and the procedure was carried out whilst she waited outside.
In 2018, the child, by then aged 16, told a teacher that she had been subjected to FGM. An examination showed that her clitoris had been removed.
The appellant denied knowledge of this, telling the police that she had been told that the procedure would involve a minor injection or piercing. In evidence, the appellant said had she known the child’s clitoris was to be removed she would have returned to the UK….
Sentencing Pregnant and Post-Natal Defendants – R v Bassaragh (Maya Tiger) 2024 2 Cr App R s 2021
On 15th June 2023, the Appellant was sentenced to the statutory minimum sentence of 5 years’ imprisonment following her guilty plea to possession of a prohibited firearm. Following routine testing during her admission to prison, she learned that she was pregnant.
It was not submitted that pregnancy alone would amount to exceptional circumstances. Rather, it was submitted, and the Court agreed, that:
- the court must ask whether the circumstances are truly exceptional to ensure the deterrent purpose of minimum sentences is not too readily undermined;
- the existence, or totting up, of multiple mitigating factors is not enough;
- there is a single ultimate test whether the imposition of the statutory minimum sentence would, in all the circumstances of the individual case, result in an arbitrary and disproportionate sentence;
- medical unfitness to serve a custodial sentence, or significant physical and/or mental health risks particular to the individual offender that would be caused by imposing the statutory minimum sentence, would be an aspect of the circumstances of the offender that fell to be taken into account (assuming the matters relied on were properly evidenced).
The Court reiterated the importance of evidence focusing on the individual circumstances of an Appellant when judging the question of exceptional circumstances. In examining the particular circumstances of this Appellant, the Court took into account….
R v Katie Ng and Antony O’Reilly [2024] EWCA Crim 493
The Court of Appeal has clarified the correct approach to trial management and the (mis)application of abuse of process principles when prosecution counsel does not attend at trial.
Those practising regularly in the Crown Courts are all too aware of the consequences of years of under investment and the impact that the crisis in funding has had on the availability of counsel. Over the last year or two, cases have been listed for trial – often years after the index allegation – only to be met with the absence of a prosecutor.
In those circumstances, for want of any other means of achieving finality and a fair outcome, defence counsel have sometimes applied for a stay of the proceedings on the basis of abuse of process. In Ng and O’Reilly, the Court of Appeal analysed the correct approach where the CPS, despite repeated efforts, has been unable to identify and instruct prosecution counsel.
In short, the CACD deprecates the staying of such cases, since they will rarely involve:
- The impossibility of a fair trial; or, even more exceptionally,
- An affront to justice as a consequence of the conduct of the prosecuting authority.
“Unfairness to the defendant is not required; rather the focus should be on whether the court’s sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined. Equally, a stay should not be imposed for the purpose of punishing or disciplining prosecutorial misconduct. The focus must be on whether a stay is appropriate in order to safeguard the integrity of the criminal justice system.” (Para 25)
“It is difficult to recognise in the above [repeated failures to identify prosecution counsel] any finding of prosecutorial conduct coming close to the sort of executive misconduct sufficient to justify a stay.” (Para 33)
“To hold that the failure of the CPS to field a prosecutor to conduct this trial was not capable of amounting to an abuse of process justifying a stay of proceedings is not to accept that the court is powerless.” (Para 36)
The correct approach is….
Res Gestae Evidence in Domestic Allegations – DPP v Barton [2024] EWHC 1350 (Admin)
Res gestae is most often used in summary cases involving domestic allegations where the complainant withdraws their support for the prosecution. In such circumstances, if a contemporaneous account of the allegation has been provided by the complainant, the prosecution can apply to admit it as “res gestae” evidence.
The case of DPP v Joseph Barton [2024] EWHC 1350 (Admin), garnered media attention given Joey Barton’s profile. The Court made a number of findings in relation to the fairness of a prosecution which relies on “res gestae” statements in circumstances where (i) the prosecution has never intended to call the complainant, (ii) the complainant has retracted a complaint; and (iii) the prosecution declines the judge’s invitation to call the complainant despite their being available.
Law
The principle of res gestae was specifically preserved by s. 118(4) of the Criminal Justice Act 2003:
(4) Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
(a)the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.
…
In the guiding authority of Andrews [1987] AC 281 Lord Ackner set out the approach Courts should take when considering the admissibility of res gestae evidence:
- The primary question is whether the possibility of concoction or distortion can be disregarded.
- The judge must consider the circumstances in which the statement was made to be satisfied that the events were so unusual or startling that they dominated the thoughts of the victim and removed the opportunity for reflection/concoction or distortion.
- The statement must be sufficiently “spontaneous” to the event in question.
- The judge must be alive to any other “special features” that may impact the assessment of the evidence and the question of concoction or distortion….
Proprietary Interests Under Section 10A POCA 2002 – Hughes v The King [2024] EWCA Crim 357
Ronan Hughes pleaded guilty to 39 offences of manslaughter and one offence of conspiring to assist unlawful immigration.
In confiscation proceedings the Judge made a determination, pursuant to section 10A POCA 2002, of the extent of the appellant’s interest in the property where he lived with his wife and children.[1] The focus of the appeal concerned that determination.
Background and the arguments at first instance
The property in Ireland was on farmland which was owned by the appellant’s mother, Catherine Hughes. The appellant had paid for the construction of the property and had lived there since 2006. The prosecution contended that the appellant and his wife each owned an equitable half-share in the house.
Mrs Hughes stated that she remained the owner of the land and would continue to be the owner of the land upon which the property was built and argued that the defendant did not therefore have a proprietary interest in the land or the house.
The Judge’s decision
The Judge concluded that the defendant had an “equitable interest” in the property built on the land and thus an equitable proprietary interest in the land itself. He reasoned “anyone looking on the situation would see the defendant, his wife (and their children) living in a house they paid to be built on land owned by another. Most bystanders would say they have an asset in the house – an equitable interest”….
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