Criminal update
Criminal law update: case-law review
Philip Brown comments on important rulings concerning criminal law practice and procedure.
About the author
Philip Brown specialises in operator licensing and road transport law at AMD Solicitors, Bristol.
Facts: A claimant was charged with failing without reasonable excuse to provide a specimen of blood for a laboratory test, having been stopped by police while driving a motor car. Although convicted at the magistrates’ court, those proceedings had concerned the question of whether or not the refusal to provide a blood specimen because of a needle phobia amounted to a reasonable excuse.
An application was made to the High Court for the magistrates to state a case. The magistrates concluded that all the necessary elements of the offence had been proved and that the appellant did not raise his defence sufficiently, providing no evidence at court to support the allegation of needle phobia. The court did not believe his assertion, made at the police station, that he was needle phobic and, therefore, there was no reasonable excuse present for not providing a specimen for analysis. As a result, the magistrates concluded that the application was not a question of law and, accordingly, they refused to state a case for the High Court.
At this stage, the appellant made an application for permission to apply for judicial review, as a challenge to the lawfulness of the refusal by the magistrates to state a case. The ground of appeal for the request to state a case was that there was evidence before the court that the defendant had raised the issue of reasonable excuse at the police station and this was all the defendant needed to do. The magistrates decided that the question posed in the application was not a question of law and, accordingly, they refused to state a case.
Decision: The Queen’s Bench Division held that although it was satisfied that the question posed was indeed a question of law, this was, on analysis, a question which could only be and could obviously only be answered one way. It was for the claimant to provide some evidential basis for what he asserted to be a reasonable excuse, in this case needle phobia.
By simply asserting, at the police station immediately or otherwise, that a person has a needle phobia cannot possibly constitute a basis for the police to have to disprove it. In such a case as this, there had to be some evidential basis, which was missing in this case.
Accordingly, the magistrates were completely right to refuse to state a case. The magistrates made no error of law in relation to where the burden of proof lay. Accordingly, the application requesting the magistrates to state a case was dismissed.
Comment: When a court is asked to state a case for the benefit of the High Court, it is lawful for a refusal to state a case to be made on the ground that the application is frivolous. The word ‘frivolous’ has a technical and enlarged meaning in relation to the statement of the case (para 12). It covers a conclusion that the question asked is not a question of law or that the question asked has no reasonable basis for being pursued at all, is totally without merit or hopeless.
In this case, because the claimant failed to provide any evidence that he suffered from needle phobia when the matter came to trial (other than his assertion at the police station that he was needle phobic) he had no prospect of succeeding in his application. The claimant, in the absence of providing any evidence concerning his condition, lacked any evidential basis for his claim.
Facts: A defendant was convicted of common assault and appealed against that conviction to the Crown Court. At the appeal hearing, the judge noticed someone in the public gallery making notes. He indicated that he would hear any application to allow this to take place on the basis that, following an earlier High Court ruling, there is ‘a convention that members of the public require permission before taking notes’ (para 6). The judge at the appeal hearing indicated that he would hear any application for permission to take notes, adding that ‘any taking of notes without permission will be regarded as a contempt of court and will be dealt with as such’ (para 7).
The appellant asked that someone should be allowed to make notes for him. The court agreed that one of the appellant’s supporters could come forward to make notes. The court ruled that the notes should be given to the appellant. The appellant had made the application on the basis that he did not have his glasses with him. Later in the day, the appellant’s glasses were located (he had hidden them in a file) and he asked for pen and paper. The judge then told the person who had been making notes to stop taking notes and to return to the public gallery. The appellant changed his mind about making his own notes, but then the judge indicated that no one else in court would thereafter be allowed to make notes for him.
On the second day of the appeal, the judge repeated that no one was to make notes without his permission, and he added that ‘transcripts are available to anyone who wants them and for a modest fee’ (para 9). The person who made the notes wrote a letter threatening judicial review of the court’s decision relating to note taking. A claim for judicial review was made.
Decision: The Queen’s Bench Division held that it was a feature of the principle of open justice that those attending public hearings should ordinarily be able to make notes of the proceedings. A court visitor may have many reasons for wishing to have a record of the proceedings for later use or out of interest. Note taking by members of the public is unlikely to interfere with the administration of justice. There was no good reason why the starting point should be that note taking is not allowed unless permission has been sought and granted. Any distinction which may be drawn between members of the public and journalists and legal commentators in connection with live text-based communications (as described in the Criminal Practice Directions Amendment No 3 [2015] EWCA Crim 430) does not apply to ordinary note taking. The most important question for a judge who may be considering the withdrawal of the liberty to make notes would be whether the note taking in question would be likely to interfere with the proper administration of justice.
Comment: This is a case where a claimant cited the effects that articles 6, 10 and 14 of the European Convention on Human Rights (‘ the convention’ ) had on the right of the public to make notes in open court. The claimant had sought clarification of the approach to note taking in open court in England and Wales. His application succeeded, and there is now a clear judgment that general note taking in court should not be prohibited unless there is reason to believe that it would interfere with the administration of justice. Open justice is a fundamental principle of the English legal system, now guaranteed by the convention.
Facts: The European Court of Human Rights (ECtHR) was asked to determine whether a defendant’s right to a fair trial had been breached by the admission, at that trial, of an absent witness’s telephone conversations being used against him at his trial.
In this case, a defence statement had been served by the applicant in which he alleged that another person (P) had murdered the victim. The person named by the defendant had been convicted of serious drug and firearm offences, and at the time when the applicant made his statement, P was serving a prison sentence for murder.
When P was interviewed by the police about the allegations made by the applicant, he answered ‘no comment’ to the questions asked. Subsequently, P had telephone conversations with his son and his wife, and informed them that he had never heard of the applicant. He denied any involvement in the murder. Both conversations were recorded and P, a Category A prisoner, would have known this.
When the applicant appeared at trial on a charge of murder, P was asked to give evidence but he refused to do so. The prosecutor requested the judge to permit the recordings of P’s telephone conversations with his family to be admitted in evidence. The prosecution also relied on further evidence, including evidence showing that the applicant and the victim had been involved in drug dealing together and that the applicant had been in debt to the victim. The judge ruled in favour of the prosecution. The applicant was convicted, after a jury trial, of murder. The applicant was sentenced to life imprisonment with a minimum term of 30 years.
The Court of Appeal dismissed the applicant’s appeal. It stated that in any event the evidence against the applicant, although circumstantial, was overwhelming. In respect of the evidence of P, in particular, there was evidence that the applicant had been in debt to the victim and the victim had been pressing him for payment. These circumstances meant that the applicant had had a motive to kill the victim, and the applicant had only alleged that P was involved very late in the investigation. Other evidence included a witness description of the gunman seen at the scene of the murder, and this matched the applicant but not P.
Decision: The ECtHR stated that the principles to be applied when the witness did not attend a public trial had been established in earlier case-law and, in particular, the court had to examine whether there was a good reason for the nonattendance of the witness at trial; whether evidence of the absent witness was ‘sole or decisive’ and whether there were sufficient ‘counterbalancing factors’ , which allowed a fair and proper assessment of the reliability of the evidence in question (para 58).
Schatschaschwili v Germany App No 9154/10 provided confirmation that the absence of a good reason for a witness failing to attend could not, of itself, be conclusive of the lack of fairness of a trial, although it was a very important factor to be weighed in the balance when assessing the overall fairness of a trial. As, in this case, the evidence of P had been used by the prosecution to rebut the only defence advanced by the applicant, the principles established in earlier cases applied to the facts of this case.
The ECtHR was not satisfied that all reasonable efforts had been made to secure the attendance of P. The trial court could have compelled P to attend even if it could not have compelled him to give evidence. The applicant himself accepted that even if P could have exercised his right to remain silent, had he attended the trial the jury would still have been able to see him and assess his behaviour in response to cross-examination .
Having said that, with regard to previous judgments, the absence of a good reason for P’s non-attendance was not, of itself, conclusive concerning the overall fairness of a trial. Although the recorded evidence of P had assisted the prosecution in rebutting the applicant’s defence, that testimony could not be described as determinative of the outcome of the trial. The Court of Appeal, on the contrary, had considered other incriminating evidence against the applicant to be overwhelming and, therefore, had had no doubts about the safety of the conviction, quite apart from the telephone recordings. Having taken those factors into account, the evidence of P, as an absent witness, could not be said to be ‘sole or decisive’ (para 63).
Having regard to the circumstances of this case, the ECtHR concluded that the criminal proceedings generally could not be said to have been rendered unfair by the admission in evidence of the telephone recordings. Accordingly, there had been no violation of article 6.1 or article 6.3(d) of the convention.
Comment: This case illustrates that evidence admitted at a criminal trial, in the absence of the witness who provided that evidence, will influence a decision as to whether or not a trial is ‘fair’ in the context of article 6 of the convention. A ruling that a trial is unfair is unlikely to be made where there is other evidence which is sufficient to indicate a defendant’s guilt. Notwithstanding the facts of this case, the principle of the right to a fair trial has not been diluted by this judgment.
Facts: In this case, the appellant and the co-defendant were arrested and charged with various terrorism offences. One of the defendants was convicted of possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to the Terrorism Act 2000. He received a sentence of 42 months’ imprisonment.
The trial itself had been the subject of reporting and other restrictions from the outset. Various media parties applied for permission to appeal against the reporting restrictions order, which were made under Criminal Justice Act 1988 s159. The contention by the media parties was that following the conclusion of the trial against the defendant, who was sentenced to 42 months’ imprisonment, there was no longer a significant risk or serious possibility that the administration of justice would be frustrated if the media was in a position to publish reports of the case relating to that defendant. Alternatively, it was submitted that the publication of reports of parts of the core of the trial would not give rise to such a risk.
Decision: In dismissing the appeal, the Court of Appeal Criminal Division held that a departure from the principles of open justice was strictly necessary if justice was to be done, given the nature of the evidence in this case. As a result, it was necessary that the evidence and other information which was adduced at the trial was heard in camera.
The nature of the evidence meant that the reasons for making an order for reporting restrictions to apply continued to subsist despite the conclusion of the trial in relation to one of the defendants. Any public accountability for matters which related to the prosecution could not be achieved through the press in its function as a ‘watchdog’ of the public interest (para 75). The Intelligence and Security Committee of parliament could consider and examine any relevant issues in order for public accountability to be achieved in that way.
As Lord Thomas CJ stated: ‘It must always be a possibility that at a future date, disclosure will be sought at a time when it is said that there could no longer be any reason to keep the information from the public’ (para 79). This would include the court’s reason for upholding the decision of the trial judge.
Following this case, the Registrar of the Court of Appeal was asked to form a working party from those interested in these matters to advise the Court of Appeal Criminal Division on the course of action it should adopt.
Comment: Clearly, this is a case where the Court of Appeal had to balance security considerations against the need for open justice. Having analysed the various procedural rules and case-law , the Court of Appeal, in dismissing this appeal, observed that where courts have to determine issues that are similar, the court will try to achieve a consistence of approach by referring to previous case-law . In this kind of case that was difficult because closed judgments contain the detailed reasons why a court has decided that the evidence should be heard in camera, and no records are retained within the court. The Court of Appeal took the sensible step, therefore, of setting up a working party to resolve such issues. It will be interesting to learn how the working party attempts to resolve the many difficulties which are likely to arise as a solution is sought to what continues to be a delicate balance between the competing interests of open justice and national security.
Facts: The ECtHR was charged with determining applications by two applicants, who challenged the length of proceedings in Scotland in which they had been convicted of murder. Back in August 1998, the applicants had been convicted of various sexual offences. They were sentenced to periods of imprisonment of eight and six years respectively. While serving their sentences, both applicants were detained by the police; they were interviewed in relation to the disappearance and suspected murder of AM, with whom they had shared an apartment. Neither applicant was charged or arrested following the interviews because of insufficient evidence.
Facts: The ECtHR was charged with determining applications by two applicants, who challenged the length of proceedings in Scotland in which they had been convicted of murder. Back in August 1998, the applicants had been convicted of various sexual offences. They were sentenced to periods of imprisonment of eight and six years respectively. While serving their sentences, both applicants were detained by the police; they were interviewed in relation to the disappearance and suspected murder of AM, with whom they had shared an apartment. Neither applicant was charged or arrested following the interviews because of insufficient evidence.
Charges were brought against the applicants for the murder of AM in April 2005, together with an allegation of concealing and disposing of the victim’s body. The prosecuting authorities decided not to prosecute because of concerns over insufficient evidence. In the following three years, the authorities conducted periodic reviews of that decision.
As a result of new evidence coming to light, which led the Crown Office to determine that there had been a change in the prospects of securing convictions in respect of both applicants, the applicants were indicted in September 2008. Between the indictment and the trial, a number of motions were lodged by the applicants, who argued that they could not receive a fair trial because of the significant delay which had occurred in this case.
Eventually, both applicants were convicted of murder and attempting to pervert the course of justice. Appeals were lodged against those convictions. Those appeals were dismissed in March and in June 2014 respectively.
Decision: The ECtHR concluded that certain parts of the proceedings had been protracted. It also ruled that although the actions of the applicants themselves contributed greatly to the delay, a period of approximately nine years was excessive and failed to meet reasonable time requirements. Accordingly, there had been a breach of article 6.1 of the convention. The court further determined that having made this finding, that that was sufficient and no award of damages was made in the case.
Facts: A prosecution was brought against a number of respondents who were alleged to be members of a group which called itself ‘Devon Destroyers’ . The alleged offences were that the individuals concerned had caused an animal fight, contrary to Animal Welfare Act (AWA) 2006 s8(1)( a), but they had kept or trained dogs for use in connection with an animal fight and that in relation to one of the respondents, he had been present at an animal fight.
It was alleged that the group would go into the countryside at night with one or more protected animals under the AWA (ie, dogs) in order to find wild animals, such as deer, foxes and badgers, with the purpose of setting the dogs to attack and kill them. When caught, each animal would fight to protect itself. The RSPCA argued that this activity constituted ‘animal fighting’ (para 5). Part of the RSPCA’s case was that the respondent had moved wild animals from one location to another in order that they could then be ‘placed more discreetly with the dogs’ in order to bring about the desired animal fight (para 9).
The district judge hearing the case ruled, at the close of the prosecution evidence, that taking the prosecution case at its highest, ‘animal fighting’ within the meaning of AWA s8(7) had not been established (see paras 20 and 21). All the charges in respect of the animal fighting issues were dismissed. The RSPCA appealed by way of case stated to the High Court.
Decision: The question before the High Court was whether the district judge was wrong in deciding that in order for an offence of animal fighting to be constituted under the AWA as defined in section 8(7), the other animal with which a protected animal is placed has to be the subject of some control or restraint by some person or persons connected with the activity, or some other artificial constraint insofar that its ability to escape is prevented. The High Court was also asked to consider whether the district judge was correct in considering that the basis of the legislation was aimed at organised and controlled animal fights such as dog fights, which invariably involved money.
In dismissing the appeal, the High Court stated that the dogs were protected animals, and it was they which had to be placed with the other animals. The critical words in the legislation were to be construed as a matter of normal language, which meant that ‘placed with … for the purpose of fighting’ did not mean and could not be equated with the release of a protected animal into the actual or potential unrestricted vicinity of another animal (para 31). A fight or intended fight could not be the by-product of a chance meeting, but must be a contrived or an artificial creation specifically for the purpose of a fight taking place. There could be no hunt or chase to find the other animal.
In addition, there must be control in the sense that the other animal, such as a deer whose instinct will be to attempt to escape, cannot escape. Whether or not the restraint was required depended on the facts. On the facts alleged in this case, where two dogs were bred for fighting, restraint was not required because the ‘other’ dog would fight and not attempt to escape (para 36).
Finally, the whole purpose of AWA s8 was aimed at organised and controlled animal fights such as dog fights. The involvement of money, although an aggravating factor, was not a necessary ingredient of such an offence and, insofar as the judge held otherwise, the district judge was wrong in this case.
Comment: This case is an example of a number of prosecutions where the prosecuting authority tries to take what might be regarded as laudable action in bringing potential offenders to court, but the evidence before the court, although constituting activity which might be regarded by the majority of the general public as wrong, does not fit the definition of a carefully drafted statute.
The prosecution brought by the RSPCA in this case is a typical example. What the case does indicate, however, is that where clear language is used in creating a criminal offence, the definition of the offence is determined by the court interpreting the ordinary meaning of the words used within the context of the facts of the case in question. In this case, the High Court refused to extend the definition of the relevant words in order to bring the activity alleged within the ambit of the AWA.