This week’s Digest is the first of two posts that consider judgments handed down during the vacation period. In part one, we focus on the Divisional Court’s decision that the SFO’s compulsory production powers apply extraterritorially; and three Court of Appeal judgments addressing jury directions about lies; the meaning of ‘possession’ in the context of the offence of possessing extreme pornographic images and appropriate fines for health and safety offences.

R (KBR Inc) v. The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin)

The judgment, available here, was handed down by Gross LJ on 06.09.18

The primary issue in this case was whether a notice issued by the Director of the Serious Fraud Office pursuant to s. 2(3) Criminal Justice Act 1987 to a company present in the jurisdiction but incorporated abroad could require the company to deliver up documents located outside the jurisdiction and provide them to the Serious Fraud Office. The Court held that such a notice was not illegal; s. 2(3) Criminal Justice Act 1987 had extraterritorial effect , provided the company in question had a sufficient connection with the UK.

KBR Inc, a company incorporated in the USA, sought to quash a notice issued on 25 July 2017 (“the July Notice”) on behalf of the Director of the Serious Fraud Office (“SFO”) pursuant to his powers under s. 2(3) of the Criminal Justice Act 1987 (“CJA”). The July Notice required KBR Inc to deliver to the SFO documents located in the USA. The SFO issued the notice to Ms Akerson, an officer of KBR Inc, during its investigation into the activities of one of KBR Inc’s subsidiaries, KBR Ltd, for suspected offences of bribery and corruption. The July Notice was handed to a representative of KBR Inc while she voluntarily attended an interview with the SFO in the UK.

KBR Inc sought to challenge the notice on three grounds:

  • Jurisdiction: the July Notice was illegal as s. 2(3) CJA did not have extraterritorial effect.
  • Discretion: the Director of the SFO was obliged to proceed by way of mutual legal assistance (“MLA”) and his failure to do so cut across MLA provisions.
  • Service: KBR Inc was not present within the jurisdiction and so could not be validly served with the notice.

Jurisdiction 

KBR Inc’s case was, in essence, that, as a matter of statutory construction, s. 2(3) CJA had no extraterritorial effect; the presumption of territoriality had not been displaced such that there was no jurisdictional basis on which the Director of the SFO could issue a notice to a company incorporated outside of the UK, to compel them to provide documents to the SFO.

The Court rejected this argument. In Gross LJ’s view, on the true construction of s. 2(3) CJA, the territorial ambit of the provision was capable of extending to some foreign companies in respect of documents held abroad where there is a sufficient connection between the company who is the subject of the notice and the UK. (see [71]). There were a number of further considerations which supported that conclusion, namely:

  • The starting point is that s. 2(3) CJA had at least some extraterritorial reach in respect of UK companies with documents held outside the jurisdiction.
  • With regard to foreign companies, the “sufficient connection” test strikes a careful balance between facilitating the SFO’s investigation of serious fraud with an international dimension and making excessive requirements in respect of a foreign company with regard to documents held abroad.
  • The test outlined is consistent with that adopted regarding the extraterritorial application of insolvency provisions.
  • This conclusion does not change the fact that a s. 2(3) notice must be given to a person within this jurisdiction.
  • The test is fact specific, thus permitting practical justice in each individual case.

Importantly, at [73], the Court highlighted that it was unable to accept the argument that the availability of MLA impinged upon the conclusion as to the extraterritorial reach of s. 2(3) for two reasons: first, the construction of s. 2(3) cannot vary according to the availability of MLA; and second, the crucial MLA arrangements in these circumstances were predated by the CJA.

Discretion

In the Court’s view, the use of the MLA procedure pursuant to either the Criminal Justice (International Co-operation) Act 1990 or the Crime (International Co-operation) Act 2003 is an additional power to that contained in s. 2(3) CJA. It does not, therefore, curtail the Director’s discretion to use the separate power of issuing s. 2(3) notices.

Service

KBR Inc’s case on this point was also rejected; the company was plainly present in the jurisdiction through Ms Akerson when the July notice was given to her.

Jonthan Hall acted for the SFO.

v. Williams [2018] EWCA Cim 1986

The judgment, available here, was handed down by Thirlwall LJ on 31.08.19.

The appellant in this case sought to appeal against conviction on the basis that (a) the judge was wrong not to give a Lucas direction and (b) that the judge had treated counsel prejudicially during the trial in such a way as to render the trial unfair. Both grounds failed; the judge was correct not give a Lucas direction in this case and there was no substance in the appellant’s complaints about the trial judge’s conduct.

The appellant pleaded guilty to one count of assault occasioning actual bodily harm and one of criminal damage. He was further tried and convicted of one count of sexual assault. The facts of the offence were that the appellant had assaulted X after she had returned from a night out with friends, accusing her of being unfaithful. The appellant appealed against conviction on the ground that the trial judge had given inappropriate directions regarding the appellant’s character and/or convictions. Further, he sought leave to appeal on a second ground; namely, that the trial was conducted in such a way by the judge as to be prejudicial.

As for the first ground, the appellant’s case was that the judge was wrong not to give a Lucas direction in the instant case. In the Court’s view, the judge was right not to do so. The judge was right to say that, in this case, the issue was whether the jury believed the appellant about the events of that night; there was no need for a Lucas direction.

Leave to appeal in respect of the second ground was refused. This was, as Thirwall LJ put it, ‘unarguable’ ([23]). Counsel sought to argue that the judge treated him discourteously during the trial, including expressing through facial gestures that he was unimpressed with his closing speech, and that the judge failed to correct an error in the manner in which he dealt with counsel’s closing submissions. However, there was no substance in these points.

v. Cyprian Okoro (No. 3) [2018] EWCA Crim 1929

The judgment, available here,was handed down by Irwin LJ on 22.08.18.

The issue in this case was the definition of ‘possession’ of inappropriate pornographic images for offences relating to possession thereof. For an accused to be in ‘possession’ of an image, (1) the image must have been within the appellant’s custody or control so that he was capable of accessing it; and (2) he must have known that he possessed an image. Knowledge of the content of those images, however, remained a matter for the statutory defences for such offences under the Criminal Justice Act 1988 and the Criminal Justice and Immigration Act 2008.

On 1 September 2016, the appellant was convicted of possession of indecent photographs of a child contrary to s. 160(1) of the Criminal Justice Act 1988 (“the 1988 Act”) (Count 1) and possessing extreme pornographic images contrary to s. 63(1) of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) (Counts 2, 5 and 6).  The facts of the case revealed that appellant had received videos on his phone via WhatsApp which had been saved to an encrypted area.

The appellant appealed against his conviction on a number of grounds, but all of which, in some way, criticised the trial judge’s directions to the jury in that he failed to give an appropriate direction as to the meaning of ‘possession’.

In neither the 1988 Act nor the 2008 Act is ‘possession’ defined. The Court of Appeal, however, has on a number of occasions considered the definition of possession under s. 160 of the 1988 Act for possession of digital images held on a computer. In Atkins v. Director of Public Prosecutions [2002] 2 Cr. App. R. 248 the Divisional Court decided that knowledge was an essential element of possession. In v. Porter [2006] EWCA Crim 560, Dyson LJ  held that for a person to have possession of an image, he must have custody or control of it – this requires the particular individual to be capable of retrieving the image. This principle was affirmed and applied in v. Leonard [2012] EWCA Crim 277. One further useful analogy was provided by v. Ding Chen Cheung [2009] EWCA Crim 2965, relating to an offence under s. 63 of the 2008 Act; in that case Thomas LJ held that the prosecution had to prove to the criminal standard that the accused had knowledge of the “things” that were in his custody or control, but did not have to prove the defendant’s knowledge of its quality or contents.

On this basis of those authorities, the Court was clear that “possession is established if the accused can be shown to have been aware of a relevant digital file or package of files which he has the capacity to access, even if he cannot be shown to have opened or scrutinised the material” ([45]). It followed that, in this case, two elements had to be made out in order for an individual be in ‘possession’: (1) the images must have been within the appellant’s custody or control so that he was capable of accessing them; and (2) he must have known that he possessed an image or a group of images.

Accordingly, the Court acceded to the Crown’s submission that, from the appellant’s pre-trial interviews, evidence at trial, and the defendant’s case generally, the appellant had accepted that he knew and received images and that these were stored on his phone – this was sufficient for possession. The appeal, therefore, failed and the appellant’s convictions upheld.

v. Electricity North West Ltd [2008] EWCA Crim 1944

The judgment, available here, was handed down by Simon LJ on 23.8.2018.

The appellant was convicted of an offence contrary to regulation 4(1) of the Work at Height Regulations 2005 and fined £900,000. It appealed against conviction and sentence; the former on the basis that, in the absence of creation of a risk of harm, there could be no conviction under regulation 4(1), and, in any event, that the jury’s verdict on other counts was inconsistent with their verdict of guilty regarding reg. 4(1); the latter on the basis that it was manifestly excessive. The appeal against sentence succeeded; a fine of £135,000 was substituted for the higher fine.

On 23 March 2017, the appellant (“the Company”) was convicted of contravening Regulation 4(1) of the Work at Height Regulations 2005 (“WAHR 2005”). There were two other Counts on the indictment; the jury acquitted the company on one count of breaching Regulation 3(1) of the Management of Health & Safety at Work Regulations 1999 and on one count of breaching s. 2(1) of the Health and Safety at Work Act 1974. The Company was sentenced to pay a fine of £900,000. The three counts on the indictment related to a fatality that occurred on 22 November 2013, when John Flowers, a linesman employed by the Company, fell from a height while clearing ivy from a vertical wooden pole. When the work was carried out, Mr Flowers was held in place by a work positioning belt, but he was not wearing a fall-arrest lanyard. It was not in dispute that the work should have been carried out from a Mobile Elevated Work Platform (“MEWP”).

The Company appealed against conviction on two grounds. First, that in the light of the acquittals on counts 1 and 3, the only factual basis for the conviction on count 2 could be one that did not give any rise to any material risk such that there was no breach of the WAHR 2005. Second, the conviction on count 2 was logically inconsistent with the acquittals on counts 1 and 3. It also sought to appeal against sentence on the basis that it was manifestly excessive.

Appeal against conviction 

On the first ground, the fact that a risk was not reasonably foreseeable was not an answer to a charge of breaching Regulation 4 of WAHR 2005. Proper planning for working at heights is a strict requirement due to the inherent danger of the work. In the present case, a MEWP was required for the work of clearing ivy from the post and, at the crucial time, one was not available; there had, in other words, been no plan. The fact that, on the jury’s verdict, the lack of a plan did not create a foreseeable risk was not an answer to the charge on count 2.

As for the second ground, the approach to be taken was that provided by v. Fanning and others [2016] EWCA Crim 550, [2016] 1 WLR 4175, [2]. The first question was whether the conviction is supported by the evidence. In the court’s opinion, there was an evidential basis for the conviction on count 2; namely, that the planning was deficient. In that there was no MEWP readily available for the work.

If there was an evidential basis for the conviction, the test was whether the verdicts could not stand in the sense that no reasonable jury which had applied its mind properly could have arrived at the conclusion they did and that the verdicts were so inconsistent as to demand interference. Despite there being a narrow evidential foundation for the conviction on count 2, it was not inconsistent with the verdicts on counts 1 and 3 such as to call for interference by the Court of Appeal. The appeal against conviction accordingly failed.

Appeal against sentence

The appeal against sentence, however, succeeded and a fine of £135,000 was substituted for the £900,000. The sentencing judge had concluded that the offence was one of high culpability on the basis that the Company had allowed the breaches of WAHR 2005 to subsist over a period of time. But there was no sufficient basis for finding that the failure to plan the use of a MEWP on 22 November made the offence one of high culpability. It was, on the basis of the jury’s verdicts on the other counts, properly characterised as one between medium and low culpability.

Legal Action to revoke article 50 referred to the European Court of Justice

Legal action to establish whether the UK can unilaterally stop Brexit has been referred to the European Court of Justice by the Court of Session in Edinburgh. The case was brought by a cross-party group of Scottish MPs, MEPs, and MSPs who want the ECJ to offer a definitive ruling on whether the UK can halt the Brexit process without needing the approval of the other 27 Member States.

The full piece can be read here.

Stop and search makes crime more likely, report finds

A report commissioned by the charity StopWatch finds that the police tactic of stop and search is increasing the likelihood of crimes being committed than preventing it. The report raises concerns about how the police’s “gang nominal” assessment has an impact on the lives of those listed on the Metropolitan police’s list of gang suspects.

The full piece can be read here.

Miscarriage of justice body’s funding cuts criticised as workload grows

Government funding of the Criminal Cases Review Commission has come under attack as the number of applicants rises steeply. The new Justice Secretary has defended the cuts, but the Shadow Justice Secretary says that the CCRC’s growing caseload and falling bugets are having an adverse effect on the work they are able to do.

The full piece can be read here.

CPS to take no action over death of Leon Briggs

The mother of a vulnerable man, who died after being restrained by police, has said that she was devastated by the fact that the officers will face no charges.

The full piece can be read here.