Westlaw criminal cases update
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R. v Toure
Court of Appeal (Criminal Division)
July 30, 2019
[2019] EWCA Crim 1961, CLW/20/03/3
Summary: Where a woman had sent a video depicting sexual abuse to a child to three people allegedly as a warning from a concerned parent, the judge had correctly directed the jury that there were two separate questions to consider: whether her reason for holding and distributing the video was a genuine and truthful one; and if so, whether that reason was legitimate. He had been right to make it clear that the genuineness of her belief was irrelevant when considering the second question.
The image had been sent to the appellant’s phone via WhatsApp. It was a video depicting a young child being sexually abused by an adult. The appellant claimed to have deleted the video on the same day. A year later, she found it on her phone and attempted to send it to her friend. Her attempt was blocked by Facebook, which notified the police. She subsequently successfully sent it to three people, one of whom was a campaigner against child pornography. The appellant’s case was that she had sent the video as a warning by a concerned parent. She was active in campaigning against human rights abuses in Guinea, where she was from. Her defences, under the Criminal Justice Act 1988 s.160(2)(a) and (c) and the Protection of Children Act 1978 s.1(4)(a), were that (1) she had not solicited or requested the video and had deleted it on the day she received it, and (2) when she later found it again and distributed it, she had a legitimate reason for doing so. In relation to her second defence, the judge directed the jury that it needed to consider two questions: whether the appellant’s reason was genuine; and if so, whether it was a legitimate reason. The jury subsequently sent a question on that issue during its deliberations, which the judge dealt with by repeating his earlier direction.
The appellant submitted that the judge had erred when directing the jury regarding her second defence when he said that the genuineness of her belief that she had a legitimate reason was irrelevant to whether the statutory defence of legitimate reason was established.
Held
Appeal dismissed.
The problem with the appellant’s submission was that she had mischaracterised what the judge had said to the jury. It was clear that the judge had directed the jury that there were two separate questions: whether the appellant’s reason for holding and distributing the video was a genuine and truthful one; and if so, whether that reason was legitimate. His analysis of the 1978 Act s.1(4)(a) defence and the equivalent 1998 Act s.160(2)(a) defence was entirely orthodox and correct. He had been right to make it clear that the genuineness of the appellant’s belief was irrelevant to the second question. The second question was an objective question for the jury; it was for the jury to set the standards for society as to whether a reason put forward was legitimate. The appellant had been wrong to rely on Atkins v DPP [2000] 1 W.L.R. 1427, [2000] 3 WLUK 213 to show that the genuineness of her belief was a relevant factor to be considered as to whether her reason was a legitimate one. The facts in the instant case were markedly different to those in Atkins; in the latter the essential issue was regarding the first question, namely the genuineness of the defendant’s reason that he possessed indecent child images as he was engaging in relevant academic research. In the instant case, consideration of both questions arose, Atkins explained (see paras 30-32, 35-37, 40-42 of judgment).
CLW comment
The judgment ends (at [42]) with the court dismissing the appeal despite the fact that they “understand why the appeal has been brought”. Although it is hard to fault the trial judge’s directions in this case in light of the statutory provisions as they currently stand, this rather telling statement, together with the fact that the appellant was sentenced to a conditional discharge for these offences, lend to what would be labelled, in other contexts in the criminal lexicon, as a “lingering” unease with her convictions, or at least, the consequences of those convictions. For the sentencing judge to determine that this sentence was appropriate, he would have to have found that it was contrary to the interests of justice to follow the sentencing guideline for possession and distribution of indecent photographs and would, presumably, have announced his reasons for doing so, given that the guideline posits that the lowest starting point for possession is a high-level community order and, for distribution, 13 weeks’ custody. There were no aggravating features to the offending; there were many mitigating.
Section 160(2) of the 1988 Act provides a defence to the offence of possessing indecent photographs or images of children if the defendant can prove, inter alia “(a) that he had a legitimate reason for having the photograph… in his possession; …or (c) that the photograph… was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time”. Section 1(4)(a) of the 1978 Act provides a defence similar to that in section 160(2)(a) in respect of the distribution offence.
The defendant here, 39 and of previous good character, relied on all three defences. She gave evidence that she was a single mother, a refugee from Guinea who had suffered physical and sexual abuse there, and was active in campaigning against human rights abuses in Guinea. Her case was that she had received the video from a friend with whom she had been discussing how horrible child abuse was, and had, after sending it on to a friend, thought she deleted it. Over a year later, she found it again and sent, or attempted to send, it to four others who she wanted to warn about child abuse or who were active in the community in working to protect children. Although she had not admitted to all of this in the prepared statement she gave in police interview following her arrest – in particular she did not admit in that statement (although she did at trial) that she had sent the video to more than one person and she did not provide the name of the person who had sent her the video until trial – there was evidence corroborating some aspects of her account. That included a WhatsApp message from one of the recipients saying “No, he is sick”, evidence from another of the recipients that they had both been discussing their concerns about sexual abuse before the appellant had sent her the video, and evidence from a different friend that the appellant was indeed active in campaigning against civil rights abuses.
Without being privy to the jury’s reasoning, it is hard to guess what aspect of the facts led to their conclusions. They clearly did not think that the photograph had been sent to the appellant without any prior request and that she did not keep it for an unreasonable time, but the section 160(2)(c) defence was not the subject of this appeal, so it is not obvious whether they simply disbelieved her account or whether they treated the question of whether the images were kept for “an unreasonable time” as an objective question. They should of course have been directed that images are not to treated as being in the possession of a person for the purposes of this offence where a person is genuinely totally unaware of them (R. v Okoro (No. 3), CLW/18/32/6, [2018] EWCA Crim 1929, [2019] 1 W.L.R. 1638, CA), which must surely, by extension, also apply to a person who is genuinely unaware of the fact that she has not deleted an indecent video. It is not, however, apparent from the transcript of the Court of Appeal judgment whether this was made clear to the jury. As to the “legitimate reason” defence, again, one cannot tell if the jury decided the issue on the basis of the first subjective question or the second objective question.
Either way, and whether or not this particular defendant did lie about whether she had requested the video, whether she thought she had deleted it or whether she did genuinely believe that her conduct was not blameworthy, the facts of this case demonstrate that the current structure of these offences or, at least the provisions governing the consequences of a conviction for them, could do with some fine tuning. There was no evidence here that the defendant had any sexual motive in sending the video or was doing so for commercial gain. That then begs the question of what her motive for sending it was. If the jury agreed that she had a genuine belief that she had a legitimate reason for having and distributing the video but merely disagreed that her reason was legitimate, then it seems, on these particular facts, that what the appellant might in fact have been punished for was her naivety and her lack of knowledge that what she was doing was wrong. Might another jury, on another day, have not been satisfied to the criminal standard on this point? Is it satisfactory that the jury, magistrates, or a District Judge (Magistrates’ Court) be left to be the arbiters, or should the elected representatives of the people provide more clarity?
It is, of course, not arguable that the possession and distribution of illegal photographs should be de-criminalised or that ignorance of the law should be a defence. Restructuring the “legitimate reason” defences to make them wholly subjective or setting out a list of reasons that are legitimate also appears unworkable. The former would allow a defendant who “genuinely” believed that child sex should be legal to escape conviction and the latter would necessarily have to be non-exhaustive and thus objectionable on the grounds of uncertainty. However, merely leaving the matter to the discretion of the Crown Prosecution Service (CPS) also seems unacceptable, as the facts of this case potentially demonstrate. Did this case require a prosecution in the public interest?
Offences of possession and distribution of indecent photographs and images are serious, but assessment of this test, set out in the Code for Crown Prosecutors (CLW/18/39/29) requires consideration of, inter alia, the level of culpability of the suspect, the harm to the victim and whether a prosecution is a proportionate offence to the alleged wrongdoing. This includes an assessment of the cost to the CPS and the wider criminal justice system, especially where (a prosecution) could be regarded as excessive when weighed against any likely penalty.
The real issue with this case, despite the appellant’s conditional discharge, turns on the fact that she is now considered a sex offender and that she was made subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (CLW/03/43/17) for 12 months. As to this, the court had no discretion: it was the conviction that triggered it. It is arguable that those who possess or distribute such photographs for purposes other than their own or others’ sexual gratification should not be subject to sex offender notification requirements. There are at least two ways in which this could be achieved. The section 160(1) offence (and the 1978 Act, s.1(4)(a) offence) could be split so that it is committed either (a) for the purposes of the defendant’s or another’s sexual gratification, or (b) “for other purposes”. An offence under (a) would be listed in Schedule 3 to the 2003 Act and thus the notification requirements would apply, whereas an offence under (b) would not. There is precedent for this approach in the so-called ‘upskirting’ offence, recently introduced by section 67A of the 2003 Act. The purposes for which the section 67A offence can be committed are obtaining sexual gratification (s.67(3)(a)) or “humiliating, alarming or distressing” the victim (s.67(3)(b)), but only the former is listed in Schedule 3 to the 2003 Act.
Different maximum sentences could also be applied (although that is not the case with the s.67A offence). Another or an additional approach could be to impose a sentencing condition on the application of Schedule 3, for instance by requiring a sentence of imprisonment to be imposed (see, for example, Sched. 3, para. 35A, which relates to the offence of possessing extreme pornographic images under the Criminal Justice and Immigration Act 2008 (CLW/08/19/12), s.63). On balance, the former approach seems preferable here, as it ties the application of Schedule 3 to the purposes for which it is intended.
Deborah Colbran Espada & Adrian Lower
R. v McChleery
Court of Appeal (Criminal Division)
November 29, 2019
[2019] EWCA Crim 2100, CLW/20/04/1
Summary: In an indecent assault trial that turned on the comparative credibility of the complainant and the defendant, the judge should have given a full good-character direction in respect of the defendant. His failure to do so, coupled with his direction that the jury should treat the unchallenged evidence of the defendant’s character witnesses with caution, simply because they knew him well, rendered the defendant’s conviction unsafe.
The prosecution concerned events that allegedly occurred in 1996 while M worked at a residential children’s home. The complainant, a boy who was 15-years old at the material time, alleged that M had taken him to his home and indecently assaulted him. That allegation, which was made years after the event, was one of many allegations of physical and sexual abuse made by former residents against members of staff. The prosecution originally preferred a 28-count indictment against eight defendants involving 16 complainants, with the allegations spanning a decade. The judge severed the sexual offences, with the result that M was tried on a six-count indictment with two other defendants. M faced a single count of indecent assault and there was no connection between that count and those faced by his co-defendants, save that they arose in the context of employment at the home. Nevertheless, the judge refused M’s request that he be tried separately.
M accepted that children from the home would visit his property but asserted that they would always do so in pairs, never singly. He denied the offence, his wife gave evidence in support of him, and a number of unchallenged character references were read to the jury. M sought disclosure of the home’s signing in-and out sheets to show that the complainant had only ever visited his home in the company of others. He also sought leave to cross-examine the complainant about two instances when, as a teenager, he had exposed his penis to others. M alleged that those instances went to the complainant’s credibility and explained his knowledge of the behaviour alleged against M. The judge rejected both applications.
M submitted that the judge erred by (1) failing to give a good-character direction; (2) rejecting his severance application; (3) not allowing him to cross-examine the complainant as to the two incidents of sexual misconduct; (4) rejecting his disclosure application.
Held
Appeal allowed.
Good-character direction – The judge did not give a good-character direction, but merely referred to the fact that M had no previous convictions whereas the complainant did. M was entitled to a good character direction, which explained the relevance of his good character to the question of his credibility and the likelihood of his having committed the offence charged, R. v Hunter (Nigel) [2015] EWCA Crim 631, [2015] 1 W.L.R. 5367, [2015] 4 WLUK 243 applied. Although a failure to give a good character direction would not automatically lead to a conviction being quashed, it did so in the instant case. There was a straightforward conflict of evidence between the complainant and M, and little independent evidence. The judge told the jury to treat M’s character references with caution because they came from people who knew M well. That was regrettable: to direct caution simply because character witnesses were people who would know a defendant well was likely to undermine their evidence inappropriately. Other than the complainant’s account there was no evidence pointing to M’s guilt, and credibility was central to the jury’s decision. In those circumstances, the absence of a good-character direction led inevitably to the conclusion that M’s conviction was unsafe, especially given the direction to treat the character references with caution (see paras 14-20 of judgment).
Severance – The judge did not err in declining to sever. Faced with an unmanageable indictment, his decision to break it down into physical and sexual abuse trials was admirable. He directed himself by reference to the correct statutory provisions and was entitled to conclude that trying the three men accused of sexual offences together was convenient and not unfair to M (paras 21-22).
Complainant’s bad character – The two instances of the complainant’s sexual misconduct had no probative value, and admitting them would have undermined his credibility without providing anything that might assist the jury in determining whether what he said was true (para.23).
Disclosure – The prosecution had secured substantial quantities of records from the children’s home, and those that evidenced the dates on which the complainant had visited M’s home had been identified and disclosed. There was no daily signing-in and out register, and such relevant records as did exist were incomplete and scattered. On that basis, the judge concluded that M’s disclosure request was speculative and disproportionate.
Although it was troubling that neither the police nor the prosecution had investigated whether children had visited M’s home singly or in pairs, the judge was close to the detail and was not wrong in his assessment (paras 25-27).
CLW comment
Good character directions have provided fertile ground for criminal appeals for at least the past 40 years. As is well-known, the Court of Appeal in R. v Vye; R. v Wise; R. v Stephenson [1993] 1 W.L.R. 471, along with the House of Lords in R. v Aziz; R. v Tosun; R. v Yorganci [1996] A.C. 41, settled that any accused who possesses a “good character” becomes thereby entitled to a mandatory direction (known as a Vye direction) in the summing-up.
These two-pronged directions, however, only resolved the problem in part. Defendants were entitled to be treated as of good character on slim evidence – the mere absence of a criminal record would suffice, and minor (and even not-so-minor) stains on defendants’ good names were routinely condoned. In the latter class of case, judges were instructed to qualify their directions suitably to take into account any blemishes on defendants’ escutcheons. Operating within this magnanimous regime, Lord Steyn, in Aziz at p.53, enjoined judges only to dispense with Vye directions “if it would make no sense to give character directions”: judges, after all, should not be required to deliver directions that were absurd or meaningless. Otherwise, it was undesirable “to generalise about this essentially practical subject which must be left to the good sense of trial judges”. Appeals continued to abound aplenty.
In Hunter, a full Court of Appeal reviewed the operation of the good character rules, deprecating the fact that they had become “a significant problem for the Crown Court and the Court of Appeal” (at [1]). The principles, it was said, hampered effective trial management, provoked protracted discussions at trial about eventual directions to be delivered to juries, necessitated convoluted jury directions, and still prompted a flood of appeals. So elastic were the underlying principles that defendants with bad criminal records (as in the five appeals under review in Hunter) or with no serious pretensions to a good character were asserting an entitlement to a Vye direction. Judges, it was reported, felt that they were required to deliver absurd directions and were being asked to display misplaced indulgence akin to Gibbon’s mordant description of the indictment laid against Antipope John XXIII at the Council of Constance, where, it was related, “the most scandalous charges were suppressed; the vicar of Christ was only accused of piracy, rape, murder, sodomy and incest” (The History of the Decline and Fall of the Roman Empire, 1788: London, Strahan & Cadell, vol. vi, chap. LXX).
Hallett LJ, handing down the judgment in Hunter, proposed that defendants could be divided, on the one hand, into those of “absolute good character” – meaning those with no previous convictions and no other reprehensible conduct alleged, admitted or proven – who would continue to be entitled to both the credibility and propensity limbs of the good character direction in full, and on the other those of only “effective good character” – meaning those with previous convictions (or other bad character) that could be characterised as old, minor and having no relevance to the charge – where the judge was required to make a judgment. In respect of the latter category, a judge was to be vigilant in ensuring that only those defendants who truly merited an “effective good character” were afforded one.
The Court of Appeal in Hunter may have toyed with the idea of restricting the first category of defendants who were to be treated as of “absolute good character”.
Hallett LJ allowed that “many have questioned, with some justification in our view, whether the fact someone has no previous convictions makes it any the more likely they are telling the truth and whether the average juror needs a direction that a defendant who has never committed an offence of the kind charged may be less likely to offend” (at [67]; emphasis added). This issue may well require further consideration one day. Indeed, it may be worth noting that in New Zealand, where in the 1990s the Court of Appeal resolved that a mere absence of convictions was “generally neutral” and would not normally entitle a defendant to be treated as a person of good character (R. v Falealili [1996] 3 N.Z.L.R. 664, New Zealand Court of Appeal; subsequently, see also New Zealand’s full Court of Appeal’s “tentative” view in R. v Kant [2008] NZCA 194, [36]–[41]), in more recent times that nation’s Supreme Court in Wi (Aaron Mark) v R. [2009] NZSC 121, applying the provisions of the Evidence Act 2006, has shifted its ground, holding that “evidence of lack of previous convictions is… relevant propensity evidence” and thus admissible at the instance of the defendant at trial (at [19]).
This conclusion was not only the corollary of a natural reading of the relevant statutory provisions, but also fortified by the common-law approach to the admissibility of such evidence that had hitherto been followed in England (at [32]).
Without settling the question decisively, the Supreme Court left matters open, stating that, in the absence of some positive evidence of good character supplementing the simple absence of a criminal record: “It should not be mandatory for the trial Judge to give a specific direction as to the relevance of that evidence. …It is generally better to leave the extent and content of directions to the trial Judge who has the feel of the case. We recognise it was said in Falealili that this approach might tend towards uncertainty and inconsistency. We are not, however, persuaded that this is likely to be a significant problem.” ([37], [40])
Reflecting more expansively, the Supreme Court buttressed this declaration by postulating that, in criminal trials in general, mandatory directions of any sort were only desirable if there existed a real risk that the jury might approach a matter in an inappropriate way or in a way that did not do a defendant’s case justice – neither of which appeared to be the case if a judge simply omitted to direct the jury on the significance of a defendant’s absence of convictions (at [41], [42]).
Reverting to Hunter, Hallett LJ’s judgment made clear that the full Court of Appeal intended that in future:
(1) fewer accused would be entitled to lay claim to a Vye direction; and
(2) judicial failures to give adequate Vye directions would seldom lead to the quashing of convictions.
Additional to this restrictive outlook, in a dirigiste gesture the court conjectured that, thanks to what it must have taken to be its nigh-exhaustive distillation of prior case law, henceforth even citation of authorities might be dramatically pared back as “[r]eliance on this judgment, Vye and Aziz should suffice” (at [103]).
In this case, the defendant, M, was undeniably of “absolute good character” within the terms of Hunter – incidentally, the only authority cited. Although the trial judge had referred to M’s absence of criminal record, he had both (a) particularly warned the jury to treat the good character evidence of his witnesses – M’s wife and friends – with caution, and (b) altogether failed to deliver either limb of that Vye direction to which the defendant was unquestionably entitled.
Regarding (a), Lord Burnett CJ observed that none of the judges present could ever recall a similar cautionary warning being delivered in respect of a defendant’s character witnesses. As was rightly pointed out, a spouse’s evidence will only be of value precisely because, by force of circumstance, he/she will know the defendant and therefore be in a real position to speak to his/her general character. A blanket direction that a spouse is not a truly independent witness who is likely to have discussed the evidence he/she will give with the defendant ahead of trial is therefore likely “inappropriately to undermine the evidence” (at [19]). Idem namque, a defendant’s friends and family members. It may well be that jurors, exercising what one is pleased to characterise as common sense, will be sceptical of many such witnesses’ testimony. It is, however, another kettle of fish for a trial judge to make this explicit, inviting distrust of evidence that English law deems not merely admissible and relevant but also deserving of a specific, positive direction that extols its potential utility in assessing both the defendant’s credibility and lack of propensity to offend.
As for (b), as Hunter had made clear (at [92]), mere failure to deliver the Vye direction to which a particular defendant is entitled will not inevitably lead to the quashing of a conviction – a now familiar refrain in criminal appeals. A conviction will only be quashed if the appellate court is persuaded that it is “unsafe”. Comparatively speaking, quashed convictions nowadays have become rarae aves.
While Vye directions continue to figure in grounds of appeal in criminal appeals (for some recent examples, see R. v CS [2018] EWCA Crim 2469, unreported, 10 May 2018, CA, R. v C, CLW/19/18/2, [2019] EWCA Crim 623, [2019] 1 W.L.R. 5809, CA, R. v Malim [2019] EWCA Crim 1067, unreported, 14 May 2019, CA, and Pegram v DPP, CLW/19/46/14, [2019] EWHC 2673 (Admin), [2019] 10 Archbold Review 1, QBD (Kerr J)), they seem less plentiful than once they were. Certainly, failure to deliver them very rarely proves decisive. In McChleery, central to the case was what the court styled “a straightforward conflict of evidence between the complainant and [M] in circumstances where there was little independent evidence to assist the jury in deciding the issue” (at [16]). The prosecution case rested solely on the complainant’s testimony; the complainant’s evidence was both repudiated by M and its circumstantial detail contradicted in a significant respect by M’s wife. In consequence, highly unusually, a conviction was actually overturned on account of the trial judge’s failure to deliver a Vye direction – although, having so held, the Court of Appeal then hesitated, adding that this circumstance was afforced by the judge’s unfortunate admonitory words regarding the testimony of spouses (at [20]). So unusual is this quashing of a conviction under our present regime, it calls to mind that brief exchange from The Tempest:
Gonzalo: The rarity of it is – which is indeed almost beyond credit –
Sebastian: As many vouched rarities are.
Act ii, sc. I, 1. l58.
Roderick Munday
R. (on the application of AB) v Chief Constable of Hampshire
Divisional Court
December 17, 2019
[2019] EWHC 3461 (Admin), CLW/20/04/4
Summary: The police had carried out a full criminal investigation into the alleged sexual abuse of a vulnerable individual, having done what they reasonably could to establish whether criminal offences had been committed and, if so, who might have been responsible for those offences. The individual had not been treated as a child witness without his special needs, and reasonable adjustments had been made by the police in the way in which their officers had conducted the investigations and arranged and conducted the interview of him.
In August 2017, he was aged 15. He had Down’s syndrome, autism, and severe learning difficulties. He also had difficulties in verbal communication. A few days after he had spent some time at a respite care centre, he had demonstrated actions that caused his parents to believe that he might have been subjected to a serious sexual assault. The police were contacted and an investigation carried out. The police constable who undertook the initial investigation (F) attempted to appoint an intermediary, for an initial assessment and an achieving best evidence (ABE) interview, due to the claimant’s specific communications needs. However, none were available. She then contacted the claimant’s teacher to discuss the best way to approach an interview in a way that would enable him to give an account of what had happened. Ultimately, the police decided that no further action could be taken. The claimant challenged the adequacy of the investigation. His principal complaint was that a registered intermediary was not used during the video recorded interview. He contended that the police were under an implied statutory duty by reason of the provisions of the Youth Justice and Criminal Evidence Act 1999 to appoint an intermediary, and had failed to do so. He also contended that there had been an unlawful failure to follow relevant guidance, and that there had been a breach of the duty to carry out an effective investigation under European Convention on Human Rights art.3 or art.8, or discrimination had been involved contrary to art.14.
Held
Application refused.
Implied statutory duties – The relevant provisions of the 1999 Act dealing with special measures for vulnerable witnesses did not, properly interpreted, impose implied statutory duties on the police in the conduct of criminal investigations. Those gathering evidence in the course of an investigation would necessarily want to ensure that the evidence gathered would be admissible in any proceedings. In the case of children, that would generally mean that any interview would be recorded so that it could be admissible as evidence in chief under s.27 of the 1999 Act. Those involved in prosecuting an accused person might need to consider whether a court should be invited to exercise its powers to order special measures (whether for children or other witnesses) in order to ensure that they gave the best evidence they could. That fell short of interpreting the provisions of the 1999 Act as imposing implied statutory duties on those involved in investigating offences to conduct the investigation in a particular way (see para.64 of judgment).
Departures from relevant guidance – The ABE Guidance was not issued pursuant to statute. It was therefore artificial and wrong to treat the instant case as one where the police when exercising public functions were obliged, as a matter of law, to follow the Guidance as though it was a statute so that decisions reached in the exercise of their functions might be quashed or declared unlawful if they did not do so. The Guidance was intended to give advice and describe best practice. In appropriate circumstances a court of judicial review might have to consider the compatibility of investigative actions with the Guidance. Such circumstances could arise, for example, in considering whether the police had complied with their duty under art.3 to conduct an effective investigation into alleged criminal conduct (paras 68-69).
The absence of an intermediary – The steps taken by F were appropriate and enabled the claimant to give the best evidence he could. It had been reasonable to hold the interview without a registered intermediary. The steps taken in terms of planning and preparation were appropriate steps. Given the particular features of the instant case, and the needs of the vulnerable victim, the underlying aims of involving intermediaries were met by the steps taken. The departure from the Guidance in respect of intermediaries would have been well capable of justification if the case had come to court. The actions taken, although involving a departure from best practice which would have involved the use of intermediaries, enabled the claimant to give his best evidence. The video recorded interview would still have been admissible, in principle. The steps taken did not result in any action that could have been categorised as involving any public law error or called for the grant of any public law remedy. It was artificial to analyse what happened in that way (para.77).
Duty of adequate investigation – The first defendant had conducted a full and effective investigation and there was no breach of art.3. The investigation led to a conclusion that there was insufficient evidence to justify charging any specific individual with any specific offence. The duty arising out of art.3 was a procedural duty, to carry out an effective investigation; it was not one to ensure a result, such that there was a prosecution or a conviction. Further, there had not been a breach of art.14 read with art.3 or art.8. There was no basis for concluding that there was any unlawful discriminatory treatment of the claimant. He had not been treated as a child witness without his special needs, and reasonable adjustments had been made by the police in the way in which their officers had conducted the investigations and arranged and conducted the interview of him (paras 90-92, 97).
CLW comment
Although the outcome of this case is not surprising, the way the court went about it suggests unfamiliarity with the witness intermediary scheme (WIS) in question. Insofar as it related to the absence of an intermediary, the claim was refused on a literal interpretation of section 29 of the 1999 Act. However, a video-recorded interview (VRI) is not mere evidence gathering. It can also be evidence-in-chief. It is precisely because there is no implied duty to use the WIS and because there is unlikely to be a public law remedy for “this investigation wasn’t as good as it should have been” that there ought to be a suitable person there to assist where there are difficulties. The court was satisfied here that AB had received sufficient help in the VRI but, inevitably, the court was viewing the matter retrospectively, and “he seemed to understand/it looks all right to me” can be an easy conclusion to reach. In addition, there are instances where the intermediary makes the evidence possible: see R. v IA and others [2013] EWCA Crim 1308, unreported, July 25, 2013, CA, where a deaf intermediary had first to teach the victim some sign language so she could tell the police what if anything had happened to her. The defence made him very much an evidential issue in the case.
Only one intermediary case was cited here, and that was a relatively old and unusual one. R. v Watts, CLW/11/01/5, [2010] EWCA Crim 1824, [2011] Crim.L.R. 68, CA, concerned four severely disabled complainants. One, JR, had cerebral palsy and was only able to communicate through an electronic communication device. She was interviewed without a registered intermediary but with the assistance of a support officer from the care home where she lived. It went on too long, as the Court of Appeal noted: JR’s concentration degenerated and her answers became unreliable. Complainant JB could only respond “Yes/No” by eye movements to closed questions. She had an intermediary in addition to a staff member who was familiar with interpreting her eye movements. The defence elected not to cross-examine any of the complainants at trial. The appeal failed on the basis of “it’s all a matter for a properly instructed jury”. It presumably attracted the court in this case because the first ground of appeal in Watts argued that, if there had been a proper assessment of the witnesses, a proper use could have been made of intermediaries and more reliable evidence may have been forthcoming.
In fact, there are already precedents that make it clear that the use of an intermediary is not mandatory. Although one would not have expected the present court to go behind that, it would have been more helpful if it had analysed those authorities and provided suitable guidance as to when an intermediary should be used. In R. v Boxer [2015] EWCA Crim 1684, unreported, September 8, 2015, CA, the investigating officer decided that she did not need an intermediary referral and proceeded to ask a 46-year old complainant, whom she had assessed as having the mental functioning of a child of seven or eight, the type of complex questions that the intermediary, who was later retained for trial, advised on the strength of her assessment should not be asked. The Court of Appeal watched the video and agreed with the trial judge that the complainant gave a “coherent and clear account” in answer to open questions; and so it was admissible. On the defence side, there is R. v Cox (Practice Note), CLW/12/20/4, [2012] EWCA Crim 549, [2012] 2 Cr.App.R. 63(6), CA. There, a judge had ordered that the defendant should have the assistance of an intermediary. None could be identified. The trial judge decided that the defendant was fit to stand trial and the complainant was entitled to have the allegation tried. He then carefully and with the assistance of both counsel, adapted the trial process. In dismissing the appeal, the Court of Appeal, referred to section 29 as discretion, and stated that it was not mandatory to use an intermediary whenever it would improve the process. So when, if not whenever?
As to early special measures meetings, although the court here discussed them, it seemed to miss their significance. They are supposed to happen shortly after an officer becomes aware that a witness falls into the category of vulnerable. They allow the officer to receive suitable advice from the Crown Prosecution Service (CPS) and for the CPS to be put on notice as early as possible that this is a case that has special features to it. However, they have been honoured so much more in the breach than the observance that they are indeed unlikely to be grounds for seeking a public law remedy.
Although no point was taken on it, it is difficult not to notice how long things took in this case. The alleged offence would have been in the first few days of August 2017. A prompt complaint was made by AB’s parents. The alleged perpetrator was arrested on August 11; he denied the offence and there was never any corroborative or similar fact evidence. A registered intermediary was requested for August 24 to 31, but none was available. There was no further active attempt to seek an intermediary after the holiday period, but a notice was put on an online intermediary forum to which no one came forward. The VRI with AB’s teacher assisting was on October 12. A PROMAT identification procedure, in which the only photograph of someone AB knew was that of the alleged perpetrator, was on February 22, 2018. After much consideration, a final decision was not taken until November 21, 2018, 13 months before this Divisional Court decision. If the Crown had proceeded, it could have been up to two years after the event that a complainant with severe disabilities would have been giving evidence about it.
What may be most significant, and hopeful, about the case is the aspect that creates no legal precedent. One of the co-defendants was the Secretary of State for Justice on the grounds that he had unlawfully failed to provide a registered intermediary. That was settled on the basis of an undisclosed amount of damages and an apology. The admission that there are not enough intermediaries for the need of them will hopefully be the first step towards a remedy.
David Wurtzel
R. v Ardic and others
Court of Appeal (Criminal Division)
November 1, 2019
[2019] EWCA Crim 1836, CLW/20/05/1
Summary: Although two defendants who had pleaded guilty to violent disorder and had been convicted of applying a corrosive fluid with intent to cause grievous bodily harm were dangerous within the meaning of the Criminal Justice Act 2003 Pt 12 s.229, determinate sentences of 12 and 14 years’ imprisonment provided a sufficient degree of protection to the public to make an extended sentence unnecessary. An extended sentence, including a custodial term of 16 years, was appropriate for a third defendant convicted of similar offences, who had armed himself with the corrosive fluid and had used it indiscriminately, and had previous convictions which indicated a pattern of offending.
D1 and D2 had pleaded guilty to violent disorder and were convicted of applying a corrosive fluid with intent to cause grievous bodily harm, contrary to the Offences Against the Person Act 1861 s.29. D3 was convicted of violent disorder, of one s.29 offence and six further counts of applying a corrosive fluid with intent. Six other defendants had pleaded guilty to violent disorder. D1 received an extended sentence of 17 years, comprising a 14-year custodial sentence and a three-year extended licence period; D2 an extended sentence of 17 and a half years, with a custodial element of 14 and a half years; and D3 a 20-year extended sentence, with a 17-year custodial element. The offences arose from an altercation between the appellants and an unidentified man in the early hours of the morning. A bystander, the victim of the s.29 assaults, used his mobile phone to film events. He was attacked by D1 and others. D3 produced a bottle containing corrosive fluid and repeatedly sprayed the victim in the face. The victim was then punched and kicked to the face by D1 and D2 when he was on the ground. The victim’s friends intervened and were also attacked, some being sprayed with the corrosive fluid. The victim was in hospital for five days with bruising and lacerations to his head, face, arms and legs. He also had chemical burns to his arms and face, most seriously to one eye, and suffered a fractured eye socket. D1, aged 27 when sentenced, had previous convictions for violent disorder, assault and possession of weapons. D2, aged 30, had previously been sentenced to five years’ imprisonment for possession of firearms. D3, aged 24, had convictions for violent disorder and assault with intent to rob. All three appellants were assessed in pre-sentence reports as constituting a high risk of reoffending and of causing harm to the public. A community impact statement referred to the increased prevalence, and public concern, of use of corrosive fluids as weapons. The judge referred to the sentencing guidelines for offences under s.18 of the 1861 Act and stated that the use of such a weapon constituted higher culpability, which justified sentences towards the higher end of Category 1.
Held
Appeals allowed.
Were the determinative sentences manifestly excessive? There were no sentencing guidelines for a s.29 offence and the judge was right to apply, by analogy, the guidelines for causing grievous bodily harm with intent. The appellants argued that the judge had erred in treating the victim’s injuries as “life-changing” or as sufficiently serious in the context of a s.18 offence to justify a starting point of 12 years. However, the s.18 guidelines allowed a court to consider factors that bore on the seriousness of s.29 offending. The necessary intent in a charge under s.29 “to burn, maim, disfigure, or disable any person or to do some grievous bodily harm…” highlighted the risks and potential consequences of targeted or indiscriminate throwing of corrosive fluid, which was rightly regarded with abhorrence. The extent of the victim’s recovery was a factor when considering the harm caused. The instant victim did not suffer injuries that required prolonged facial surgery or involved severe physical damage with long-term effect, but it was clearly an offence of higher culpability under the s.18 guidelines. The presence of the fluid showed some premeditation and spraying it at the victim’s face demonstrated intent to cause more serious harm than had resulted. It was an unprovoked group attack in a public place and he judge was entitled to take account of the community impact statement and the public concern about such attacks, R. v Brzezinski (Tomaosz Adam) [2012] EWCA Crim 198, [2012] 2 Cr. App. R. (S.) 62, [2012] 1 WLUK 657 applied. Severe deterrent sentences were justified (see paras 52-62 of judgment).
Dangerousness – The appellants were all dangerous within the meaning of the Criminal Justice Act 2003 Pt 12 s.229. A sentencing judge had to consider whether a lengthy determinate sentence would provide sufficient protection to the public before deciding to impose an extended sentence on a dangerous offender, Attorney General’s Reference (No.27 of 2013) [2014] EWCA Crim 334, [2014] 1 W.L.R. 4209, [2014] 3 WLUK 66 followed. There was an implicit tension between submissions in favour of a reduced determinate sentence and those that relied on the length of the determinate term as sufficient protection. However, the length of the determinate sentences for D1 and D2 provided a sufficient degree of public protection despite the serious nature of their offending. D3 was in a different position. He had armed himself with the corrosive fluid, he used it widely and indiscriminately, including spraying bystanders, targeting their faces, eyes and mouths, knowing that maximum damage would be caused. His pre-sentence report demonstrated a lack of insight into his criminally anti-social conduct, and his previous convictions for other Sch.15 offences under the 2003 Act indicated a pattern of offending (paras 63-69).
Conclusion – The original sentences were quashed. D1 and D2 received determinate sentences of 12 and 14 years’ imprisonment respectively. D3 received an extended sentence of 19 years, comprising 16-year custodial term and a three-year extended licence period (para.70).
