Serious Crime Bulletin – Issue 3 – October 2023

The Serious Crime Bulletin is a quarterly brief providing a snapshot of prominent decisions and news with implications for general crime practitioners.

In the news

• 20 June 2023: Data published by the Law Society shows 1,446 criminal law duty solicitors have left since 2017. It is predicted that 2,000 will have left by 2027.
• 29 June 2023: Ministry of Justice publishes criminal court statistics for January to March 2023. Outstanding Crown Court case load fell by 0.4%, 29% Crown Court cases outstanding for more than a year and 42% effective trial rate for Crown Court cases.
• 27 July 2023: Law Commission issues call for evidence to determine if criminal appeals process requires reform.
• 3 August 2023: Government announces that Common Platform is now live in every court in England & Wales.
• 23 August 2023: HM CPS Inspectorate report published finding 49% of final letters sent to complainants are inadequate
• 14 September 2023: New DPP Stephen Parkinson announced 14 September 2023. Current DPP Max Hill KC ends term late October 2023.
• 26 September 2023: Announcement that swearing in of new Lord Chief Justice Dame Sue Carr to be live streamed 2 October 2023.
• 1 October 2023: New Sentencing Guidelines for perverting the course of justice come into effect and will provide the first guidance for sentencing these common law offences.
• 7 October 2023: The National Crime Agency marks its 10th anniversary on Saturday 7 October, and has revealed it is running more than 800 operations into serious and organised crime groups impacting the United Kingdom.
• 9 October 2023: Op Eternal: More than 420 criminals have been jailed and three tonnes of illegal drugs seized in the three-and-a-half years since the launch of the Met’s largest ever operation targeting members of organised crime groups.

Jurisdiction: Preparatory hearings and interlocutory appeals

R v BHQ (Jurisdiction Only) [2023] EWCA Crim 1018

Facts

• The Central Criminal Court held a pre-trial preparatory hearing (within the meaning of section 29(1B) of the Criminal Procedure and Investigations Act 1996).
• The primary question for the Court of Appeal was whether the court had jurisdiction to address a ruling on abuse of process by way of an interlocutory application to appeal.

Judgment

• The court refused leave to appeal and dismissed the application.
• Restricting itself to the question of jurisdiction and reciting the main authorities (including R v H [2007] UKHL 7), the Court of Appeal held:
  1. that it was important to distinguish between two stages of analysis under the term ‘jurisdictional’, first in the sense of an interlocutory appeal under section 35(1) of the 1996 Act (which concerns the meaning of a ruling on a point of law) and second in the sense of whether it would be appropriate for the court to exercise its appellate jurisdiction by substituting its judgment for that of the first instance judge;
  2. that, in this case, the application to stay proceedings for an abuse of process was based on points of law relating to the case within the meaning of section 31(3) of the 1996 Act [at 42]; and
  3. that, noting that the question of abuse of process ‘typically involves findings of fact and a multi-factorial balancing exercise’; it is not the function of this court, whether on an interlocutory appeal or on an appeal from conviction, to remake the judge’s findings of fact or to perform the balancing exercise afresh, unless the judge has erred in law or approach, taken into account something irrelevant or failed to consider something relevant or reached a decision that no reasonable judge could reach. [at 43].

Murder: Abuse of process and bad character

R v Watson [2023] EWCA Crim 1016

Facts

• The appellant had been convicted at the Central Criminal Court of the murder of the child, Rikki Neave.
• The appeal rested on several grounds, including (i) abuse of process based on the impossibility of a fair trial, due to serious failings in the original investigation (such as failure to retain exhibits to allow examination by defence experts), (ii) the admission of bad character evidence relating to the appellant’s alleged sexual interest in young boys and in strangulation, and (iii) the judge’s remarks to the jury when brought into court having retired to consider its verdict.

Judgment

• The court dismissed the appeal.
• As to (i), the missing or lost evidence was not of such a degree that the appellant could discharge the burden of showing that a fair trial would be impossible [at 62]. The jury was aware of the case’s history, counsel cross-examined the mother of the victim (alleged by the appellant to be the real murderer), and made submissions to the jury [at 63].
• As to (ii), the evidence was admissible ‘if it could properly be relied upon by the jury as showing that the appellant had a sexual interest in young boys, and/or that within a short time after Rikki’s murder he acted in ways which were similar to unusual actions by the killer’ [at 67]. It was properly relied on by the prosecution ‘as going to the identification of the appellant as the killer, rather than as evidence of a relevant propensity’. The other evidence was admissible as it could be regarded as supporting an issue before the jury, namely the killer’s distinctive conduct [at 69-70].
• As to (iii), the court did not consider that the judge’s remarks put undue pressure on the jury or conveyed anything improper (though the court did not that it would have been better for the judge not to have used the phrase of a ‘preferred outcome’) [at 83- 84].

R v Dickson [2023] EWCA Crim 1002

Facts

• The appellant had been convicted of murder at Newcastle Crown Court. Evidence of bad character had been admitted, namely relating to the appellant’s training (or service) in the Army. Disclosure was made relating to a disciplinary process, requested by a co-defendant [at 7]. That allegation had involved violence by kicking the head of another soldier and had been admitted by the appellant. The judge admitted this evidence as evidence of propensity on the part of the appellant to use his feet to inflict violence [at 8].

Judgment

• The key question was whether, at the close of the prosecution case, ‘could the case against the appellant, absent the bad character evidence, properly be described as weak?’ The court concluded that it could not, given identification of the appellant by one witness as kicking and punching the victim, being near to the group attacking the victim and the training shoes that could have cause the fatal injury in contrast from the footwear of the other defendants [at 38].

Rape: DNA evidence and non-disclosure

R v Malkinson [2023] EWCA Crim 954

Facts

• In 2003, a woman had been attacked and raped in the early hours of the morning. The appellant had been convicted of a number of offences, including two of rape. He was sentenced to life imprisonment, but always denied the offences.
• The Criminal Cases Review Commission referred the case to the Court of Appeal, following developments in DNA analysis focused on the Y chromosome [at 26].

Judgment

• As to the fresh evidence relating to DNA analysis, the lack of any connection with the appellant meant that the respondent conceded the first ground of appeal. The conviction was unsafe and, accordingly, quashed [at 39 and 54].
• As to the other grounds, there had been non-disclosure of photographs (which, in turn, thrust doubt on the accuracy of a doctor’s notes) [at 65]. On that ground, the court also allowed the appeal. The court considered the same in respect of non-disclosure of the criminal records of prosecution witnesses, despite requests at the time, albeit only when taken alongside the second ground.

Deferred sentences

R v Swinbourne [2023] EWCA Crim 906

Facts

• The appellant was to be sentenced under section 314 of the Sentencing Act 2020 (in respect of a mandatory minimum term for a dwelling burglary) [at 2]. There had been a prospect of his suitability for participation in a programme designed to rehabilitate offenders.
• The judge was invited to defer sentence, but noted the obstacle of the mandatory minimum term [at 14]. Given the lack of a realistic prospect of a non-custodial sentence at the end of the period of deferment, and the absence of exceptional circumstances relating to the offence or offender, deferment was not appropriate [at 16-17].

Judgment

• As part of a broader appeal against sentence, the Court of Appeal made observations about ‘deferred sentences’. In practice, without a specific guideline, the Sentencing Council’s New Sentences Definitive Guideline ‘provides that sentence should be deferred in a small group of cases, at either the custody threshold or the community sentence threshold, where the court may be prepared to impose a lesser sentence provided the defendant is prepared to adapt his behaviour in a way clearly specified by the court. When passing sentence, the court should indicate the type of sentence it would be minded to impose if the defendant does not comply. Deferment can only be appropriate if a sentence other than one of immediate custody will follow in the event of compliance’ [at 21].
• The Court of Appeal rejected the submission that ‘sentence may be deferred without an indication that a non-custodial sentence will be imposed in the event of compliance with specified conditions’, as that ‘would be wholly contrary to the purpose of deferring sentence’ [at 22].
• Overall, though the Court of Appeal rejected most submissions, it did consider there had been an error in the judge going beyond the category range before applying the reduction for the plea, so reduced the sentence from three years, two months to 876 days’ imprisonment [at 28-29].

Abuse of process and prosecutorial conduct

R v BKR [2023] EWCA Crim 903

Facts

• The defendant had served a significant term of imprisonment for sexual offences and following release was charged with further sexual offences.
• He pleaded guilty to seven of the eight counts and the Crown considered it was in the public interest to proceed on the remaining count so that justice could be seen to be done for the complainant. The Crown explained its decision in detail to the court.
• The trial judge considered the prosecution “pointless” as it would not add to the overall sentence and granted the defendant’s application to stay the prosecution. It was said that the case proceeding would offend the court’s sense of justice and bring the criminal justice system into disrepute. The Crown appealed.

Judgment

• The appeal was allowed and the Court directed that the proceedings take place in a court other than Woolwich;
• The decision to prosecute is entrusted by Parliament to the CPS and it is, in the ordinary case, no part of the function of a judge to say who should and should not be prosecuted [52];
• The trial judge was entitled to express views on the public interest test but it did not follow that the Crown’s decision to continue the prosecution was an abuse [at 51 – 52];
• There had been no misconduct and the approach of the Crown came nowhere near justifying a conclusion that the prosecution offended the court’s sense of propriety [at 53];
• The case is another in a long line reiterating the exceptionality of successful abuse applications [at 52].

No duty on a defendant to bring issues relating to electronic tagging equipment to the attention of the court

R v Sothilingham [2023] EWCA Crim 485

Facts

• The trial judge held that to be entitled to benefit from credit for time spent on an electronically monitored curfew pursuant to the regime prescribed by the Sentencing Act 2020, the monitoring had to be “effective.”
• The sentencing judge held that the appellant kept quiet about the fact the monitoring tag equipment had been not been fitted and therefore he was not entitled to credit pursuant to the 2020 Act. The appellant brought an appeal on the basis that the trial judge erred in law by failing properly to interpret an “electronic monitoring condition” under section 326 of the Sentencing Act as “any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976.”

Held

• There is no duty on a defendant to bring issues relating to electronic tagging equipment to the attention of the court in order to maintain an entitlement to credit for time spent on a qualifying curfew.

Contributors: Michael Goodwin KC, Jack Talbot, Anita Clifford and Alex Benn