This week’s Digest is the final post collating judgments released during the vacation period. This week includes five judgments, all handed down by the Court of Appeal (Criminal Division). The first considers the fairness of a trial where the appellant was unable to give evidence; the second, whether the judge misapplied the Definitive Guideline Causing Death by Driving; the third, an appeal against sentence on the grounds it was manifestly excessive; the fourth, an appeal against convictions for conspiracy; and the fifth, an appeal against conviction based on the admissibility of identification evidence.

R v Welland [2018] EWCA Crim 2036

The judgment, available here, was handed down by Leggatt LJ on 14.09.18.

The issue in this case was whether a trial was rendered unfair by the fact that the appellant, through having various seizures, was rendered unable to give evidence. The appeal was allowed and the conviction quashed; the judge should have adjourned proceedings to allow medical evidence to be gathered so that the appellant’s situation could be investigated and a decision could be made as to whether any special measures would enable the appellant to give evidence.

The appellant was convicted of an offence of causing serious injury by dangerous driving. The prosecution’s case, accepted by the jury, was that the appellant drove a Ranger Rover into the complainant, pinning his leg against the wall and causing him serious injury. On the first day of trial, the judge had declined an application made by the defence for an adjournment for medical evidence to be obtained. The suggestion at that stage was that the evidence could support the appellant’s case by giving an explanation as to how he could have engaged the wrong gear. During the course of the trial, the appellant fitted a number of times. The severity of his situation was such that he was forced to watch the trial from a separate room. The judge declined an application on the third day of trial to discharge the jury, supported by the prosecution, to enable medical evidence to be collected on the appellant’s medical state and whether any special measures could be taken to enable the appellant to participate effectively in his trial. At the close of the prosecution case, defence counsel informed the court it had been their firm intention to call the appellant to give evidence, but had now taken the decision it would now be irresponsible to do so given the appellant was likely to fit whilst in the witness box. The judge directed the jury that no adverse inference was to be drawn from the fact the appellant had not given evidence.

The appellant appealed against his conviction on the basis that the judge was wrong to reject the applications where the appellant’s ability to participate in the trial was severely compromised; the judge’s decision to continue the trial rendered the process unfair and thus the appellant’s conviction was unsafe.

In the Court’s view, the judge was justified in refusing the application on the first day of trial as there was, at that point, no evidential basis for suggesting that a fit could have caused him to engage the wrong gear or that his seizures would interfere in his ability to participate in his trial. However, after the seizures manifested themselves, the judge should have allowed time for medical evidence to be obtained, addressing the significance of the appellant’s fits and any means of controlling them. Such evidence was required to find out whether any measures could be taken which might enable him to give evidence. Accordingly, on the basis that the trial was unfair, the appellant’s conviction was quashed.

R v Monington [2018] EWCA Crim 2016

The judgment, available here, was handed down by Holgate J on 05.09.18.

The issue in this appeal was whether the sentencing judge had misapplied the Definitive Guideline: Causing Death by Driving in categorising the appellant’s case as one which fell within the top category of carelessness. The appeal was dismissed; the judge had not erred but was right to classify the appellant’s conduct as being of the highest level of carelessness.

The appellant pleaded guilty on re-arraignment to causing death by dangerous driving. On the evening of the offence, the appellant was driving a Ctiroen Xsara. It had been raining and the appellant lost control of the car as he went round a bend. The car crossed the opposite lane and hit a number of trees. One of the passengers died at the scene. The expert for the prosecution concluded that the appellant was driving at an excessive speed such that he could not negotiate the bend safely. The judge imposed a sentence of 2 years’ imprisonment and disqualified the appellant from driving for a total period of five years and until he passed an extensive retest.

The appellant appealed against sentence on the basis that the sentencing judge misapplied the Definitive Guideline: Causing Death by Driving (“the Guideline”) in assessing this as a case which fell not far short of dangerous driving; rather, it should have been treated as falling within the second category, “other cases of careless or inconsiderate driving”. The basis for this was that the appellant’s actual speed was estimated to be about 10mph below the actual speed limit and 8mph below the top end of the range given for the maximum speed at which the bend could have been negotiated.

This argument was rejected and the appeal dismissed. That the speed at which the appellant was driving fell below the speed limit was of no consequence: that limit did not indicate a level of speed at which it would not be careless, let alone safe, for the appellant to negotiate the bend. There was no merit in the argument that the appellant was only driving 8mph below the upper bound of the maximum speed assessed for the bend. It was careless, verging on dangerous, for the appellant, as an inexperienced driver, to be driving so close to the upper estimate of the maximum speed at which the bend could be taken in wet conditions. Further, Annex A to the Guideline gives driving at speed “which is highly inappropriate for the prevailing road or traffic conditions” as an example of dangerous driving.

R v Seccombe [2018] EWCA Crim 2017

The judgment, available here, was handed down by Holgate J on 04.09.18.

The issue in this appeal was whether, for an offence of conspiracy to pervert the course of justice, the sentencing judge (a) had erred in concluding that the custody threshold had been passed in respect of the appellant’s case; and, in any event, (b) had imposed a manifestly excessive sentence. The appeal was allowed to a limited extent: the judge had erred in taking the wrong starting point in the appellant’s case and she had failed to consider aggravating features regarding the appellant’s co-offenders.

The appellant pleaded guilty to a conspiracy to pervert the course of justice, contrary to s. 1(1) of the Criminal Law Act 1977. The particulars of the offence were that the appellant, along with three others, one of whom she was in a relationship with, conspired to give false information to the police in respect of proceedings under the Proceeds of Crime Act 2002 (“POCA”) about the ownership of an Alfa Romeo, with the intent to prevent its recovery. The appellant was sentenced to 10 months’ imprisonment. She appealed against sentence, with leave of the single judge, on the basis that (a) the mitigating features of the appellant’s case should have led the judge to conclude the custody threshold had not been passed, and (b) the length of the sentence was manifestly excessive.

In respect of the first ground, the Court concluded that the sentencing judge could not be criticised for taking the view that “appropriate punishment” could only be achieved by imposing an immediate custodial sentence; the seriousness of the offence – i.e. conspiring to pervert the course of POCA proceedings – was a factor to which overriding weight was rightly attached. Thus, the first ground failed.

Regarding the second ground, the Court was persuaded that the sentencing judge had failed adequately to take into account that one of the appellant’s co-offenders had recently taken part in a conspiracy to supply class A drugs whilst on bail. Further, the judge took the same starting point, before allowing for the appropriate reduction, as for the other two co-offenders whose circumstances were drastically different. Thus, the Court could not support the appellant’s sentence and a sentence of six months’ imprisonment was substituted for ten.

R v Thompson [2018] EWCA Crim 2082

The judgment, available here, was handed down by Lord Burnett of Maldon CJ on 26.09.18.

The appellant was convicted of two conspiracies at two separate trials, his latter conviction being the result of a retrial. He sought to appeal against both convictions; in respect of the first, on the grounds that the judge was wrong to admit evidence of his previous conviction under the bad character provisions of the Criminal Justice Act 2003; in respect of the second conviction, the appellant argued that the judge was wrong, after the prosecution had changed their case mid-way through the trial, not to accede to his submission of no case to answer. Only the appeal against his latter conviction was allowed.

The appellant was convicted, with a co-accused (DS), on the second count of a three-count indictment for conspiracy to possess prohibited weapons. The appellant was then re-tried on a count of conspiracy to possess firearms with intent to endanger life, a count on which the jury could not agree a verdict at the appellant’s first trial. The appellant was also convicted of that offence at the conclusion of the second trial. The facts of the offence disclosed that the appellant had been at a gathering, shortly after an altercation, at which a number of weapons were found.

The appellant appealed against his convictions on a number of grounds. In respect of the conviction at the first trial, the appellant contended that the judge had been wrong to allow the jury to hear evidence of his two previous convictions for robbery under s. 101(1)(f) of the Criminal Justice Act 2003. In respect of his conviction at the second trial, the appellant’s case was that the judge should not have admitted his conviction at the first trial and, in any event, the judge had erred in not acceding to the appellant’s submission of no case to answer once the prosecution had changed the factual basis of their case.

In relation to the ground relating to bad character evidence, at trial the basis of the prosecution’s application to admit the appellant’s convictions for robbery was that the appellant had created a false impression; namely that, through his evidence about his own drug dealing, he was not the sort of person who would commit other serious types of crimes, such as was alleged against him in this case. By reference to the remarks of Sir Igor Judge P in R v Renda [2006] 1 WLR 2984, at [3], the Court was far from persuaded that the judge was wrong to conclude that the appellant’s evidence had created a false impression. The trial judge had the advantage of both hearing the evidence and seeing the appellant give that evidence. Further, for the same reasons, the judge was entitled to conclude that admission of the evidence did not have such an adverse effect on proceedings such that it should not be admitted and hence was justified in not using her discretion under s. 78 of Police and Criminal Evidence Act 1984 to exclude it. Accordingly, the appellant’s appeal against his first conviction failed.

The appeal against the second conviction (at the re-trial), however, succeeded. Applying the well-known principles in R v Galbraith (1981) 73 Cr. App. R. 124, the appellant’s contention was that there was no evidence upon which a properly directed jury could have convicted the appellant of the conspiracy with which he was then indicted. Half-way through the trial, the prosecution changed the factual basis of their case. As a result the count was amended to delete the names of the appellant’s alleged co-conspirators who had been acquitted at the first trial. Thereafter, however, in the court’s view, the prosecution had not been able to adduce sufficient evidence to prove, to the criminal standard, that a conspiracy between the appellant and any other person existed to possess the firearms with the intent to endanger life. The result was that this conviction had to be quashed.

R v Gray [2018] EWCA Crim 2083

The judgment, available here, was handed down by Thirwall LJ on 27.09.18.

This was an appeal against conviction on two grounds; the first criticised the trial judge’s failure to accede to a submission of no case to answer as the prosecution case was based on inadequate identification evidence; the second was that, if the evidence was admissible, the judge failed to deal with it adequately in the summing up. The appeal was dismissed: the evidence was admissible and even though the judge’s directions could have been clearer, the conviction was not unsafe.

The appellant (A) was convicted of murder along with two other young men, Mr Johnson (J) and Mr Goodensimms (G). The prosecution case, accepted by the jury, was that the three men had travelled to the scene, a Sainsbury’s depot in Charlton, where they attacked the victim with weapons. It was the defence case that A was not at the scene.

A sought to appeal against his conviction on two grounds: (i) that the trial judge erred in refusing to accede to a submission of no case to answer, failing to appreciate the quality of the identification evidence which placed A at the scene of the crime; and (ii) the weaknesses of the identification evidence were not appreciated by the judge in summing up.

In respect of (i), the Court’s view was that the identification evidence was poor and that it followed that the judge was under a duty to withdraw the case from the jury unless there was other evidence which supported the correctness of the identification. Although the judge had not done so, had he analysed the evidence in the proper way, he would have come to the conclusion that there was evidence capable of supporting the identification, which meant the case could properly be left to the jury.

As for the summing up, the identification evidence was such as to require careful and tailored directions to the jury. The court accepted that the judge’s handling of the identification evidence left a lot to be desired in that, for example, there was no reference to the lighting or to the view available to the individual as he watched events unfold. However, reviewing the whole of the evidence, the jury received careful guidance on the elements of circumstantial evidence which supported the evidence of his identification at the scene of the crime. In particular, there was little that could be said in relation to powerful evidence, from WhatsApp messages, that placed A at the scene. The Court was satisfied the conviction was safe.

Justice only for the wealthy, says Law Commission

It is increasingly difficult for defendants and claimants to find solicitors willing to represent them due to the Government’s legal aid cuts, the Law Society has warned. Christina Blacklaws, the Law Society’s president, said British justice now existed “only for the wealthy, or the small number on very low incomes lucky enough to find a solicitor willing and able to fight a mountain of red tape to secure legal aid.”

The full piece can be read here.

Lord Wilson, giving the Howard T. Trienens Lecture at Northwestern University Chicago, also criticised the government’s dismantling of the legal aid system, commenting that access to justice was “under threat” in the UK as a result.

The lecture can be accessed here and comment from the Guardian accessed here.