This week’s Digest considers five judgments. The first two were handed down by the Court of Appeal (Criminal Division) and relate to the alternative verdict of infanticide under the Infanticide Act 1938 and an application for permission to appeal against confiscation orders. The remaining three were handed down by the Divisional Court. The first of these deals with an appeal against a refusal by the CCRC to refer a case to the Court of Appeal; the issue in the second was s. 137 of the Highways Act 1980; and the final case deals with the adequacy of two EAWs and s. 2(4)(c) of the Extradition Act 2003.
R v. Turnstill  EWCA Crim 1696
The judgment, available here, was handed down by Lord Justice Treacy on 19.07.18.
The issue in this appeal was whether an alternative verdict of infanticide should have been left to the jury under the Infanticide Act 1938. The Court considered that there was evidence enough for consideration by the jury and, accordingly, quashed the appellant’s conviction and ordered a retrial. s. 1(1) of the Infanticide Act did not preclude other mental illness playing a causative role in the killing of a child; the key point was that the disturbance of the mind resulting from the birth of the child was a substantial or operative cause.
The appellant was convicted of murder on 19 June 2017 and sentenced to life imprisonment, with a minimum term of 20 years. The facts of the case were that the appellant, having given birth in her own bathroom, stabbed her baby daughter 14 times using a pair of scissors. Having killed the baby, she put her body into a plastic carrier bag, which she then put in the kitchen bin.
She sought to appeal against her conviction and sentence on the basis that her conviction for murder was unsafe as the trial judge had refused to leave infanticide to the jury as an alternative verdict. For infanticide to be left to the jury under the Infanticide Act 1938 (IA), the balance of the mother’s mind must be disturbed ‘by reason of’ either the effect of the birth or lactation consequent thereupon (s. 1(1) IA). The judge had ruled, following the judgment of Judge LJ in R v. Kai-whitewind  2 Cr. App. R. 31 at , on the medical evidence the most that could be said was that the appellant’s mind was disturbed, if at all, by a pre-existing mental disorder, exacerbated by the circumstances of the birth.
The Court of Appeal allowed the appeal, quashed the conviction and, as it was in the interests of justice, ordered a re-trial. The judge, in the judgment of Treacy LJ, had been wrong to withdraw the alternative verdict from the jury. The words ‘by reason of’ in s. 1(1) IA need not be read as though they said ‘solely by reason of’. As long as a failure to recover from the effects of birth is an operative or substantial cause of the disturbance of the mind, that should be sufficient, even if there are other underlying mental problems. There was expert evidence in this case that, despite the appellant’s pre-existing mental condition, the effects of giving birth had led to a further condition, characterised as an acute stress reaction which was a causative factor in disturbing the balance of the appellant’s mind. Thus, in the circumstances, the Court was persuaded that there was evidence fit for the jury’s consideration.
R v. Ghulam and others  EWCA Crim 1691
The judgment, available here, was handed down by Lord Justice Holroyde on 20.07.18.
This was an application for permission to appeal, with the appropriate extension of time, against two confiscation orders on the ground that, due to fundamental issues with the way counsel conducted the confiscation proceedings, the orders should be set aside. The applications failed; there was no basis on which it could be argued different representation would have obtained a more favourable outcome for the applicants.
On 17 November 2015, confiscation orders were made against Yazdani Ghulam (Y) and Rabani Ghulam (R). Y owned a commercial property at 181 Dunstable Road and R one at 185 Dunstable Road, both in Luton. The benefit figure was assessed primarily on the fact that Y and R were the owners of these properties respectively. It was the position of Y and R that their father, Mr Butt (B), was the beneficial owner of those properties; i.e. his sons held this property on trust for their father.
Y and R sought leave to appeal against the orders made against them, pursuant to s. 9 of the Criminal Appeal Act 1968, on the basis that, due to fundamental issues with counsel’s representation at the confiscation hearing, the process of making the confiscation orders was rendered unfair and that they should accordingly be set aside. B’s application was made pursuant to s. 31(4) of the Proceeds of Crime Act 2002 (POCA), which provides a route of appeal for a defendant against a s. 10A POCA determination. B contended that he did not receive a fair hearing and that there was a serious risk of injustice if effect was given to the orders as he was the beneficial owner of 181 and 185 Dunstable Road. At the confiscation hearing Y and R had been represented by a Mr Aullybocus (A). A had also helped B prepare the paperwork for that hearing but had not, as the Court accepted, represented him at that hearing.
The Holroyde LJ made clear that this was not a disciplinary inquiry into whether A had breached his professional duties. They were confined to considering whether the confiscation orders were wrong in principle. It was clear from the decision of the same court in Hirani  EWCA Crim1463 that an appeal against a confiscation order based on negligent advice or representation must recognise the realities of the appellant’s situation such that it must be shown competent representation would have resulted in a different outcome for the appellant.
The Court was not satisfied that anything in the way A conducted the case could have been said to have caused or contributed to an adverse outcome for the applicants. This was for two reasons: first, A had advised the applicants appropriately in respect of all matters, even asking for evidence to substantiate Y and R’s trusts claim; second, there was no arguable basis was shown for saying that if A had conducted the proceedings differently, the applicants would have achieved a more favourable outcome. In fact, the applicants’ delay in seeking permission to appeal was testimony to the fact that they were, in reality, happy with the outcome of the confiscation proceedings.
For essentially the same reasons, there was no merit in B’s submissions and, in any event, B had no right of appeal under s. 31(4) POCA as there had been no s. 10A determination made in this case. The Court added the following remarks on s. 10A determinations at :
‘We would add, with a view to helping judges and recorders in the Crown Court, that where there is a claim by an interested party, the court should make clear whether or not it thinks it appropriate to make a determination under section 10A, and give reasons (which may not need lengthy exposition) for that decision. In such a case, it will be necessary for care to be taken in completing Forms 5050 and 5050A so as to reflect the court’s determination, or decision not to make a determination.’
R (Norman Joseph Jones) v. Criminal Cases Review Commission  EWHC 1798 (Admin)
The judgment, available here, was handed down by Mr Justice William Davis on 13.07.18.
This was a renewed application for permission to apply for judicial review of a decision of the Criminal Cases Review Commission (CCRC) for failing to refer the claimant’s case to the Court of Appeal. The basis for the application was that the decision of the CCRC was irrational as they had failed to pursue ‘obvious’ lines of inquiry in relation to two witnesses. The application failed; the Court refused to interfere with the CCRC’s discretion as to how it deals with individual strands of the case.
The claimant was convicted of murdering a man named Finney. His application for leave to appeal against conviction was dismissed by the full Court of Appeal ( EWCA Crim 2631). The claimant applied to the CCRC for a review of his conviction and sentence; the CCRC’s response was that they would not be referring the claimant’s case to the Court of Appeal. Leave to review that decision was refused by the single judge and the claimant now sought to renew that application. His primary contention was that the CCRC should have made enquiries of two individuals, whose evidence, on the claimant’s case, would discredit the circumstantial evidence on which he had been convicted.
The jurisdiction for the Court to interfere with a decision is strictly confined to the traditional grounds articulated in Wednesbury; ‘it is not the task of the court to retake the decision or exercise the judgment afresh’ (R (Steele) v. Criminal Cases Review Commission  EWHC 3724 (Admin), per Dove J). In the judge’s opinion, this was a complicated case and, therefore, there were many possible lines of enquiry. In the absence of obvious error, it was not for the court to ‘second guess the way in which the CCRC dealt with the individual strands of the case’. ().
Buchanan v. The Crown Prosecution Service  EWHC 1773 (Admin)
The judgment, available here, was handed down by Lord Justice Hickenbottom on 10.07.18.
The issue in this case was whether the Crown Court had been right to find that the appellant’s use of the mutli-lane highway around Parliament Square to protest had amounted to an obstruction for the purposes of s. 137 Highways Act 1980. The Court held that the Crown Court had been correct, and the appellant had unlawfully obstructed highway; his use posed a serious risk to the health and safety of others.
Rosalind Earis appeared for the respondent.
This was an appeal by way of case stated from the Crown Court at Isleworth which, on 3 March 2017, refused his appeal against conviction at the Hammersmith Magistrates’ Court on 12 October 2016 for obstructing the highway in Parliament Square contrary to s. 137(1) of the Highways Act 1980 (HA). The appellant was a member of ‘Justice for Men and Boys’, which campaigns against the practice of male circumcision or male genital mutilation. While protesting on 1 June 2016, he had made his way away from the group onto the highway in Parliament Square, a multi-lane carriageway, and obstructed the traffic for a period of approximately five minutes, despite being asked by police a number of times to move back to the pavement.
The case stated posed two questions for the court, namely whether the Crown Court were right to conclude the appellant’s:
- interference with the highway was not small and trifling that it could be described as ‘de minimis’; and
- use of the highway was unreasonable and thus without excuse.
There was also an issue as to the lateness of the appellant’s notice. However, the relevant extension was granted as the Court was satisfied the delay was caused by the Crown Court’s failure to comply with the relevant Criminal Procedure Rules and to respond promptly to correspondence from the parties.
Both parties accepted that the main issue before the Court was whether the use of the highway by the appellant was unreasonable and thus amounted to an obstruction. In the judgment of Hickenbottom LJ, it did for ten reasons:
- The Crown Court considered the right of the other protesters to use the pavement part of the highway was not unreasonable.
- The appellant alone moved to stand in the middle lane of the carriageway, which at that point was multi-lane and, during the afternoon, very busy. It put at risk not only the drivers of vehicles around Parliament Square, but also those who attempted to remove the appellant, such as the police officers.
- The Crown Court found that buses taxis and cars were blocked for about five minutes. This Court was bound to accept that finding. By that activity, it was clear that his intention was to disrupt the use of the highway by other users.
- It was the appellant’s evidence that he wanted to be arrested. From that, he was aware what he was doing was wrong and amounted to an arrestable offence.
- The appellant was asked to move twice and did not.
- None of the cases cited by the appellant, concerning demonstrations on public highways, aided him in his submission that his use of the highway at that particular time was not an obstruction.
- The Crown Court was entitled to conclude that the use of the highway by the appellant was clearly more than de minmis; he disrupted an extremely busy part of the highway.
- The appellant was not being prevented from protesting on the pavement part of the highway.
- The appellant’s rights under article 10 ECHR are not absolute; they are subject to restrictions prescribed by law, including those which are for the protection of the health and safety and the rights of others.
- The Crown Court was entitled to conclude that the appellant’s removal was ‘in the interests of public safety and the protection of the rights and freedoms of others’.
M and B v. Preliminary Investigation Tribunal of Napoli, Italy and others  EWHC 1808 (Admin)
The judgment, available here, was handed down by Mr Justice Nicol on 16.07.18.
This was an appeal against extradition on two grounds: the first was that the EAWs failed to adequately specify the offences in respect of which extradition was sought, contrary to s. 2(4)(c) of the Extradition Act 2003, and the second was that extradition would be contrary to their article 8 ECHR rights. The appeal was allowed on the first ground; the EAWs were wholly deficient in that they failed to make clear for which offences the appellants’ extradition was sought.
M is the wife of B. On 11 August 2016, DJ Michael Snow ordered that both should be returned to Italy pursuant to two European Arrest Warrants (EAWs). The EAWs alleged, broadly, that the appellants had been involved in human trafficking in Europe and were issued for more than one offence; in fact, Box B of the warrant seemed to specify some hundred or more offences in respect of which the appellants’ extradition was sought. They appealed against their extradition on two grounds:
- The warrants did not comply with s. 2(4)(c) of the Extradition Act 2003 (EA), i.e. they did not adequately particularise the offences in respect of which extradition was sought and, therefore, the appellants should be discharged.
- The extradition of the appellants would be contrary to theirs and their children’s rights under Article 8 ECHR and the therefore they should be discharged under s. 21A EA.
Issue 1: was s. 2 EA satisfied?
It is ‘fundamental’ () from s. 2 EA that the warrant should identify the offence or offences for which the requested person is sought. The warrants issued by the respondents were ‘extremely difficult to follow’ () and, in Nicol J’s opinion, the warrants did not adequately identify the offences for which the requested persons’ extradition was sought. He drew attention to the fact that:
- Although Box E of each EAW began ‘The present warrant is issued for the following crimes: Charges against the accused person…’ and that might have suggested that each and every charge was being made against each of the appellants, this conclusion was difficult to square with the fact that each particular began with certain numbers, which apparently corresponded to other individuals who were not the subject of the warrant. If the warrant was indeed seeking the return of the appellants in respect of every one of the hundred or more offences, it was very difficult to make sense of the reference to those numbers, which seemingly referred to other individuals, at the beginning of each particular.
- If the particulars did distinguish between defendants, there was no clue or guide within the EAWs as to which number applied to the respondents named in these particular EAWs.
Issue 2: is the further information obtained since the DJ’s decision admissible?
The respondent submitted that the defects could be cured by the further information which had been obtained since the DJ’s decision. However, in Nicol J’s opinion, these EAWs were ‘wholly deficient. They failed entirely to make clear for what offences the appellants were to be prosecuted’ (). As such, they were not defects that could be cured by further information. Consequently, the Court declined to receive the further evidence.
This led to the inevitable conclusion that the appellants should be discharged since the warrants did not satisfy the requirements of s. 2(4)(c) EA. The appeal was allowed and the Court declined to deal substantively with the article 8 issue.
Cliff Richard wins £210,000 in damages over BBC privacy case
Sir Cliff Richard won his privacy case against the BBC. In a judgment handed down on Wednesday last week, Mann J awarded the singer a provisional £210,000 in damages for the BBC’s reporting of the fact Sir Cliff was being investigated for historical child sexual assault claims.
Criminal Solicitors in England and Wales challenge cut to fees
Criminal solicitors have had their fees for reading large quantities of Crown Court evidence cut by 37% under changes imposed by the Ministry of Justice, the High Court has heard. In a challenge brought by the Law Society of England and Wales, the Ministry of Justice has been told that reductions will drive more solicitors out of criminal defence work.
The full piece can be read here.
DNA tests on asylum seekers dubious in law, Home Office admits
Asylum seekers who are subject to DNA swab tests to prove their origins may be able to pursue legal action against the government after the Home Office admitted the legal basis for taking those samples was ‘dubious’.
The full piece can be read here.
Lack of legal aid puts asylum seekers’ lives at risk, charity warns
A leading refugee charity has warned that the lives of people seeking asylum are being put at risk by the fact that they are struggling to access free legal advice for which they are, in fact, eligible.
The full piece can be read here.