Serious Crime Bulletin – Issue 1 – February 2023

Welcome to the inaugural issue of the Serious Crime Bulletin published by Red Lion Chambers. The Serious Crime Bulletin is a quarterly brief of recently decided cases and news spanning homicide, firearms, drug and sexual offences. Our aim is to provide a snapshot of prominent decisions and news with implications for general crime practitioners.

In the news

• 1 February 2023: A new fixed fee is being introduced to recognise the extra work carried out by advocates for pre-recorded cross-examination videos in cases with s.28 hearings.
• 31 January 2023: House of Commons Library publishes briefing on court statistics. Latest figures show Crown Court backlog stood at 62,766 as at end of September 2022.
• 19 January 2023: CPS publishes latest quarterly statistics for period 1 July – 30 September 2022 showing rape charges are up 13.7% and charge rates overall are up 79.4%
• From Monday 16 January 2023, the Courts will expect that the principles contained in the BCM handbook will be applied by practitioners to the conduct of cases in the Crown Court. The Crown Court judiciary will be leading a new focus on effective Plea and Trial Preparation Hearings as the foundation of good case management.
• 4 January 2023: NCA confirms development of new tool disabling image distortion to assist in child sex offence investigations

Murder and ‘whole life’ orders

In a five-strong judgment, the Court of Appeal has considered the principles in Schedule 21 of the Sentencing Act 2020 which apply to minimum terms and whole life orders following a conviction for murder. R v Stewart, Couzens, Tustin and Others [2022] EWCA Crim 1063 was a combined case of Attorney General’s references for unduly lenient sentences and appeals against sentence. All but one had been convicted of at least one offence of murder.

Key points

• On the topic of whole life orders, the Court identified the general principles from the statutory provisions and case law [19]. The cases that merit a whole life order in Schedule 21 are exceptional, but the categories are ‘non-exhaustive and not closed’ [74].
• Where a court is satisfied to impose a whole life order, there is no reduction in respect of a guilty plea (though such pleas may affect how serious the case is and any material in mitigation to show remorse).
• Considering Couzens’ plea of guilty in relation to the murder of Sarah Everard, the Court reiterated the view in the case law that ‘[r]emorse is different from acceptance of guilt’ [76]. In gauging whether Couzen’s contrition was genuine the Court considered it relevant that at no stage had he given a full explanation and at various points he had sought to minimise his planning.

‘Choice’ and the insanity defence

In R v Keal [2022] EWCA Crim 341; 2 Cr. App. R 4 the Court of Appeal was asked to consider the scope of insanity under the M’Naghten Rules. The appellant, who suffered from delusions, had raised the defence and been convicted of the attempted murder of three family members. During the course of a frenzied attack, he had said he was possessed by the devil and had apologised for what he was doing. On appeal, it was contended that the trial judge had misdirected the jury by failing to direct them that even if the appellant knew what he was doing was wrong (inferred from his apologies), the defence of insanity would be established if he believed that he had no choice but to commit the act in question.

Key points

• Endorsing a line of authorities, the Court considered that in order to establish the defence of insanity the defendant had to establish that a) he did not know that the act was unlawful; and b) that he did not know it was morally wrong [41].
• The Court rejected the appellant’s submission that the defence of insanity involved an element of choice [48]. The trial judge’s directions were appropriate and the appeal was dismissed.
• The Court referred to the previous work of the Law Commission in 2013 which recognised that the defence of insanity does not presently include an element reflecting lack of control or irresistible impulse and declined to develop the law of insanity in the light of the authorities [50] – [51].

It is noted that in 2013 the Law Commission recommended the abolition of the common law rules on insanity and a new statutory defence that included a ‘choice’ element in relation to one’s actions.This was not taken forward but Keal may reinvigorate discussion about reform.

Admissibility of drill music and gang evidence

In January this year the CPS announced it was reviewing its guidance on the use of drill music as evidence. The review appears to have ended following press reports that the Director of Public Prosecutions, speaking in June 2022, expressed support for the continued reliance on drill music subject to appropriate safeguards.

The admissibility of drill music lyrics and other gang evidence was recently tested in R v Heslop & Ors [2022] EWCA Crim 897, an appeal against murder convictions. Handwritten lyrics were found in one defendant’s home which related to the alleged shooting. Lyrics were on the phone of another defendant which boasted gang membership and involvement in shootings. The lyrics were admitted into evidence by the trial judge.

Key points

• The admissibility of the drill lyrics and wider gang evidence was not disturbed on appeal.
• After considering the authorities, the Court noted that there is more than one route for admissibility of gang evidence [45]. The various routes under the Criminal Justice Act 2003 are s 98(a) which concerns evidence that has “to do with the facts of the offence”, s 101(1)(c) concerning explanatory evidence and s 101(d) dealing with propensity but careful jury directions will be essential [51].

Householder self defence

In R v Magson [2022] EWCA Crim 1064 the Court of Appeal was asked to consider the safety of the appellant’s conviction in circumstances where she had killed her partner in their home in the middle of an argument. The appellant had tried to shut him out and he had forced himself back inside. She had then stabbed him in the chest with a knife from the kitchen. The trial judge had directed the jury as to the elements of the common law defence of self-defence, rather than the additional provisions concerning householders under s 76 Criminal Justice and Immigration Act 2008.

Specifically, s 76(5A) provides that where the case is one involving a householder who believes that another is a trespasser the degree of force is not be regarded as reasonable if it was ‘grossly disproportionate’. In other words, the degree of force will be considered reasonable unless grossly disproportionate. This is different to self defence in non-householder cases where the question will be whether the force was disproportionate.

Key points

• As the appellant’s case at trial had not involved a belief on the appellant’s part that her partner was a trespasser, and the issue had not arisen at trial, the trial judge was right not to have directed the jury. There had been no evidential basis to raise the ‘householder defence’.
• In any event, the jury had not believed the appellant’s account of common law self-defence and her conviction was safe.
• The requirements for raising the householder defence are as set out in s 76 Criminal Justice and Immigration Act 2008.

Sexual offences, ‘suspicion’ and dangerousness

In R v Hussain [2022] EWCA Crim 1328 the appellant had been convicted after trial of two offences of rape. He was sentenced on each count to twelve years’ custody and extended licence of three years, amounting to a total extended sentence on each count of fifteen years’ custody.

Key points

• The sentencing judge had erred in law by finding dangerousness based to a significant degree on his ‘gravest suspicion’ that the appellant had committed other sexual offences [14]. Without previous convictions or supporting evidence, the judge ought to have sentenced the appellant on the basis that this conviction was his first relating to a sexual offence [20].
• However, looking only at the present offences, the Court of Appeal considered there to be particular concerns about the appellant’s risk to others and dismissed the appeal against sentence.