Protest law and ‘belief in consent’ defence
Attorney General’s Reference (No.1 of 2023) [2024] EWCA Crim 243
This Reference by the Attorney General concerns the scope and effect of the defence
contained within section 5(2)(a) of the Criminal Damage Act 1971. This section provides, amongst other things, for a defence of “lawful excuse” to someone charged with criminal damage if the person honestly believes at the time of the damage that the owner of the property would have consented to the damage “if he or they had known of the…damage and its circumstances”.
The defendant in this case, known as ‘C’, was a member of a political group known as “Beyond Politics” which is now known as “Burning Pink”. On 21 July 2020 C, together with others, threw pink paint at the offices of Greenpeace, Amnesty International, Christian Aid and Friends of the Earth causing significant damage. On 13 August 2020 they undertook similar action at the headquarter of the Conservative, Labour, Liberal Democrats and Green Parties.
C and her co-accused were charged with conspiracy to damage property. She relied on the defence that at the time of the damage she believed that the owners of the properties would have consented to the damage if they had known of the damage and its circumstances. She gave evidence at trial. Her case was that she believed that the occupiers of the premises would have consented to the damage had they been aware that it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change.
C was acquitted by the jury (as were her co-accused)
The Court held that the “circumstances” of the damage have to be linked directly to the
damage. They might include, for example, the time, place and extent of the damage. In a protest case, they would include the fact that the damage was caused as part of a protest. But the “circumstances” would not include the political or philosophical beliefs of the person causing the damage. They would not include the reasoning or wider motivation of the defendant. Those matters are too remote from the damage. Evidence from the defendant about the facts of or effects of climate change would be inadmissible.
Unlawful Act Manslaughter
Auriol Grey [2024] EWCA Crim 487
On 24 February 2023, in the Crown Court at Cambridge sitting at Peterborough, Auriol Grey was convicted of manslaughter following a retrial. She was sentenced to three years’ imprisonment on 2 March 2023. Grey’s initial appeal against the sentence was refused, but following a change in legal representation, she sought and was granted leave to appeal against her conviction.
The incident occurred on 20 October 2020 when Grey, walking on the pavement, encountered Mrs. Celia Ward, a cyclist. Grey gesticulated and shouted at Ward, who fell into the road and was struck by a car, resulting in her death. Grey’s actions were captured on CCTV, and she was charged with unlawful act manslaughter.
At trial, the prosecution argued that Grey’s hostile reaction caused Ward to fall into the road. However, the Court of Appeal found that the trial judge failed to specify the act constituting the ‘unlawful act’ necessary for a manslaughter conviction. The jury was not directed to consider whether Grey’s actions amounted to common assault, the base offence required for manslaughter.
The Court of Appeal noted that the prosecution’s case was insufficient to establish that Grey’s actions caused Ward to apprehend immediate unlawful violence. The jury was not asked to consider Grey’s subjective state of mind or the elements of recklessness required for common assault.
The Court concluded that the prosecution’s case was defective and that the jury was not properly directed on the legal elements of the offence. The conviction was deemed unsafe, and the appeal was allowed, with the conviction quashed. Permission for a retrial was refused.
Applications for Leave to Appeal without merit and Loss of Time Orders
Sohila Tamiz and Pedram Tamiz [2024] EWCA Crim 200
Following a 4.5 week trial the the defendant landlords were convicted of a number of offences arising out of the harassment and unlawful eviction of their tenants. ST was convicted of 14 counts and PT was convicted of 7 counts.
The grounds of appeal focused on the trial judge’s decisions not to admit various bad character evidence relating to the prosecution witnesses: namely the tenants and their friends and associates.
The applications for permission to appeal against conviction were already considered in detail by the single judge who decided that the applications were unarguable. The renewed application for leave made no reference to this analysis, with the court of appeal commenting that ‘it is as if it had not happened’.
They commented at para 105:
Instead, it looks as if the applications were renewed almost automatically. In our view, the practice of simply replicating an application for permission to appeal, as if the single judge had not set out detailed reasons for refusal, is becoming more common and needs to stop. It takes no account of the fact that, in the last 20 years, the s.31 procedure has been improved out of all recognition: instead of one or two paragraphs, the single judge provides a detailed mini-judgment explaining the reasons for refusal. In our view, those reasons need to be respected and properly considered before any renewed application is made.
After concluding once again that the renewed application was without merit and ‘hopeless’, the judge considered whether to make a loss of time orders. Ultimately they decided not to, but said it was a close-run thing. They noted the resources that were deployed in three judges considering the appeal across a trial that lasted 4.5 weeks. At the end they gave a stark warning:
That said, the time has come when applicants who wish to renew their failed PTA applications need to think long and hard about their prospects of success and the risk of failure. In particular, they need to grapple with what the single judge has said, not just ignore it. In the future, in a case of this sort, this court will have no hesitation in making a loss of time order.
Prosecution witness ‘incapable of belief’ and res gestae in domestic violence cases
DPP v Joseph Barton [2024] EWHC 1350 (Admin)
This is an appeal by way of case stated against a decision of District Judge (MC) Sweet (the judge) sitting in the Wimbledon Magistrates’ Court on 31 October 2022. By that decision the judge stayed criminal proceedings brought against the respondent, Joseph Barton, in respect of an alleged assault in a domestic context against his wife, Georgia Barton on 2 June 2021. The judge stayed the proceedings on the grounds that they were an abuse of process. The appellant, the Director of Public Prosecutions (the DPP), argues that the judge erred in law in imposing a stay.
The main issue raised by this appeal is the fairness of a prosecution which relies upon res gestae hearsay statements made by a domestic violence complainant in circumstances where: (i) the prosecution has never intended to call the complainant; (ii) the complainant has retracted her complaints; and (iii) the prosecution declines the judge’s invitation to call her as a Crown witness despite her availability at trial. The judge decided that such a prosecution would amount to an abuse of process.
The court confirmed the position in relation to the prosecution’s discretion to call a witness, that ordinarily in these circumstances there is a duty to call such a witness, but this duty is subject to an exception when the crown are of the view that the anticipated evidence witness is incapable of belief. The defence then can either call the witness themselves or the judge can call the witness for cross examination by the defence. The court did not consider the actions of the crown in relation to their decision not to call a witness, and a disclosure failing, to amount to an abuse of process nor did they consider that the witness’s evidence inevitably would have been excluded.
The court allowed the appeal and remitted the case back to the Magistrates’ Court to be tried again in front of a differently constituted court.
SENTENCING
Sentencing an adult for an offence committed whilst a child
BPO [2024] EWCA Crim 517
In R v. Ahmed [2012] EWCA Crim 281 the Court established the principle that, when sentencing an adult for an offence committed whilst a child, the starting point is the sentence which was likely to have been imposed if sentenced shortly after the commission of the offence. This appeal raises the question whether, in applying that principle, the Court should take account of changes in early release provisions between then and now.
The court concluded that in considering the sentence which was likely to be imposed if sentenced shortly after the offence under the principle in Ahmed, a judge should not take account of the provisions for release on licence applicable either now or at that earlier time. In the present case, the judge correctly applied the principle in Ahmed and further was right to refuse to make any adjustment to take account of release provisions, in line with the principle in Patel.
Sexually motivated murder and aggravating features
Jordan McSweeney [2023] EWCA Crim 1250
In the early hours of 26 June 2022 Jordan McSweeney, now 30 years old, subjected Zara Aleena to a brutal and sexually-motivated attack causing her multiple injuries from which she tragically died.
On 18 November 2022 he pleaded guilty to her murder contrary to common law and sexual assault contrary to s. 3(1) of the Sexual Offences Act 2003. On 14 December 2022 Cheema-Grubb J sentenced him to life imprisonment for the murder with a period of 38 years specified as the minimum term under s. 322 of the Sentencing Act 2020, and 4 years’ imprisonment for the sexual assault (to run concurrently).
The defence successfully argued that the 38-year minimum term was manifestly excessive. The case concerned the weight of additional aggravating features including mental or physical suffering inflicted on the victim before death. They cautioned against double-counting, given that the sexual nature of the assault has already elevated the statutory starting point for the minimum term from 15 to 30 years. For mental or physical suffering to be an aggravating statutory feature, there must be suffering over and above that which is already inherent in a murder involving sexual conduct.
However, the Judge went on to conclude that Ms Aleena “suffered inordinately and this is an aggravating feature”. She stated that it was speculation that Ms Aleena remained unconscious, and that there was evidence contrary to that suggestion, including the need, as he saw it, for the appellant to return to the victim twice after initially leaving her. As we have said, the Judge stated that Ms Aleena survived for eight hours after the attack.
The court of appeal did not consider that a finding of inordinate suffering such as to amount to an aggravating feature was properly open to the Judge. As set out above, it is clear that, mercifully, Ms Aleena was rendered unconscious early on in the attack. No doubt, she suffered terror and pain during the assault in its early stages, fighting back bravely as she did. But in order to find that Ms Aleena suffered beyond that, the Judge needed to be sure that Ms Aleena regained consciousness (and for a sufficient period of time to suffer inordinately).
They quashed the minimum term of 38 years and substituted 33 years.
Delay as mitigation
Abadilla [2023] EWCA Crim 1772
On 21 September 2023 the defendant was convicted after trial of one count of assaulting a child under 13 by penetration, the sentence was a 9-year extended determinate sentence comprising of a custodial term of six years and extended licence period of three years. The A-G sought leave on the basis that the sentence was unduly lenient.
One of the issues that were discussed is whether the sentencing judge gave too high a discount for the delay. They noted that the issue of delay as a factor in sentencing is coming before the court of appeal regularly. The emphasised the General Guideline: overarching principles which provides as follows:
“Where there has been unreasonable delay in proceedings since apprehension which is not the fault of the offender the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender. Note: no fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.”
They summarised the recent case law in this area including R v Timpson [2023] EWCA Crim 453 where they held that the chronology of an offence being reported to the police in May 2020, charged in November 2020 and making their first appearance in the Crown Court in January 2021 does not reveal any significant delay, but is the ‘progress to be reasonably expected in a case of this kind’.
In R v Kent [2023] EWCA Crim 1771 the court concluded that there had been a detriment because he was subjected to unreasonable delay waiting for his trial in circumstances where he was in custody serving another sentence and was therefore recalled on licence.
In R v Iqbal [2023] EWCA Crim 1583 the court decided that a person who entered a late plea of guilty following unreasonable delay in bringing the matter on for trial should not receive any reduction in sentence on account of delay which she had caused by her false not guilty plea.
In the case of Abidillah the Court of Appeal considered that the sentence should not be reduced on account of the delay, and while they found that the sentence was ‘perhaps even a very lenient sentence’ but not that it was unduly lenient.
Guidance for Sexual Harm Prevention Orders
Dewey [2024] EWCA Crim 409
This appeal concerns the proper terms of a Sexual Harm Prevention Order (SHPO).
The Court of Appeal stated that it was ‘regreattable’ that the rules about service of a draft order not less than two business days before the hearing (Crim PR rule 31.3(1)(b)) were not followed and noted that this was a prosecution responsibility. The last minute rush meant that counsel were unable to have a sensible discussion.
They noted that the ‘touchstone’ for considering the terms of a restrictive order such as a SHPO is always necessity and proportionality. The case of Hanna [2023] EWCA Crim 33 pointed out that there will be cases where a wide-ranging order will be necessary, for example where an offender has actively sought out contact opportunities with children. For this case though they were not of a view that a non-contact provision was necessary or proportionate, as there was no attempts found to contact children in any way.
The court of appeal endorsed the approach taken Parsons and another [2017] EWCA Crim 2163 the which emphasised the need for the terms of any SHPO to be effective, clear, realistic, proportionate, and tailored to the facts. The Court confirmed the previous approach to blanket bans on internet access stating that such a prohibition would not be appropriate in anything other than the most exceptional cases. They also considered a term giving police power to enter any premises as unnecessarily wide and disproportionate due to the other requirements covering notification, production and inspection are sufficient. They took into account the fact that Mr Dewey was compliant regarding his devices on arrest.
Finally the court considered that it may be time for a new updated approach to SHPO’s stating as follows:
Finally, we note that, in the course of submissions on this appeal, Ms Mostafa for the prosecution informed us that in her recent experience she had come across at least 50 different forms of SHPO wording covering restrictions on internet-enabled devices. These variations are likely to reflect changes in technology, as devices and programmes advance and become more sophisticated. We had no expert evidence before us on this appeal, but having regard to the years which have passed since Parsons (which was decided in 2016), the time may now be approaching where the precise wording of proportionate and realistic restrictions needs to be addressed once more, with appropriate contemporary expert evidence.
Further information
For more information from the crime team, contact clerks@36crime.co.uk
Involving Emma Fielding
