Issue 2, March 11, 2013 Archbold 2... · 2013-12-09 · SMITH [2013] EWCA Crim 11; January 15, 2013 S appeared for trial on an indictment charging (count 1) making a threat to kill

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ArchboldReview

Issue 2, March 11, 2013

Cases in briefEvidence—identification—initial identification by photo-graphs on Facebook—failure to retain/disclose relevant ma-terial by prosecution—effect; guidance in relation to Facebook identification in the futureALEXANDER AND MCGILL [2012] EWCA Crim 2768; November 1, 2012(1) A and M were initially identified by a robbery victim from photographs on Facebook, which he looked at with his sister, and then again with officers. Subsequently, video identification procedures were held. At trial, the prosecu-tion were only able to produce a Facebook page relating to A, the provenance of which was unclear. Police officers gave evidence in relation to why they had not retained any of the material that they had viewed when they looked at Facebook with the victim and why they had not sought en-tries from Facebook which had been looked at by the victim initially. There should have been material before the jury which would have enabled them to assess in more detail the circumstances in which the identification occurred, and the breach of duty on the part of the prosecution put A and M at a real disadvantage. The prosecution did not, however, amount to an abuse of process. It was the result of incom-petence, not bad faith, the jury were properly warned of the disadvantage to A and M, they had all the relevant material and no proper criticism could be made of the summing up.(2) For the future, where an identification occurred by looking through Facebook pages, it was incumbent upon the police and the prosecutor to take steps to obtain, in as much detail as possible, evidence in relation to that initial identification. For example, it would be prudent to obtain the available images that were looked at and a statement in rela-tion to what happened. It was not for the Court to set out for the future what processes should be adopted. The DPP and ACPO could, in conjunction with the relevant Ministry, give consideration so that short and simple guidance could be given in short order, so that what happened in this case does not reoccur.

Indictment—defendant pleading guilty to improperly added count—effectSMITH [2013] EWCA Crim 11; January 15, 2013S appeared for trial on an indictment charging (count 1) making a threat to kill and, as an alternative, (count 2) af-

fray. A third count contrary to the Public Order Act 1986 s.4 was wrongly added to the indictment on the prompting of the judge, to which S pleaded guilty. Following the plea, again at the prompting of the judge, the Crown said it would proceed to trial only upon count 1. Nothing was said about the disposal of count 2. S was acquitted on count 1, and thereupon sentenced on count 3. Had counts 1 and 3 stood alone, count 3 would have been a nullity and the conviction based upon it quashed: Callaghan (1992) 94 Cr.App.R. 226. However, the s.4 offence was available as an alternative to affray: Public Order Act 1986 s.7(3), and it would accord-ingly have been open to S to have pleaded guilty to a s.4 offence: Criminal Law Act 1967 s.6(1)(b). S could therefore have pleaded not guilty to count 2 but guilty to the s.4 of-fence. Accordingly, the error was one of form only – the plea was taken in response to a question addressed to a third and invalid count rather than in response to a question addressed to the second count. The appellant was in no way prejudiced. In determining whether there was a procedural failure only or an excess of jurisdiction which rendered the appellant’s plea of guilty invalid and his subsequent sen-tence a nullity, the test to be applied was as set out in Clarke and McDaid [2008] 1 W.L.R. 338. The question was whether Parliament intended that a plea of guilty to a statutory al-ternative verdict offence under s.6(1) should be treated as a nullity merely because the plea was taken in response to a question based upon a count improperly added to charge that alternative offence (count 3), rather than in response to the original charge (count 2). The Court concluded that

CONTENTS

Cases in brief ........................................................1

Sentencing cases ..................................................3

Comment ...............................................................3

Feature ..................................................................6

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Parliament could have had no such intention. The over-riding consideration was the fairness of the proceedings. No unfair prejudice could have arisen. The only misunder-standing was as to form. S’s plea to the improperly added count 3 should be treated as intended to be an alternative verdict under count 2, and the judge retained the power to sentence for that offence (the Court concluded that, con-trary to the record in the court log, a verdict of not guilty had not been entered in respect of count 2 under Criminal Justice Act 1967 s.17, but rather by default under Criminal Law Act 1967 s.6(5)).

Perverting the course of justice—breach of a restraint order under Proceeds of Crime Act 2002—whether breach could constitute offence without more—guidance to prosecutorsKENNY [2013] EWCA Crim 1; January 30, 2013A restraint order made under the Proceeds of Crime Act 2002 was capable, without more (i.e. involving no illegality beyond the breach of the order itself), of constituting the offence of perverting the course of justice. Relevantly, the state of the law concerning the offence could be summarised as follows: (1) there was no closed list of acts which may give rise to the offence (Clark (Mark) [2003] 2 Cr.App.R. 23 at [10]); (2) nevertheless, any expansion of the offence should only take place incrementally and with caution, reflecting both princi-ples of common law reasoning and the requirements of Euro-pean Convention on Human Rights Art.7, ECHR (Clark, [13]; relying on Selvage [1982] 1 Q.B. 372 at 381); (3) So far as con-cerns the offence generally, neither authority nor principle supported confining the requisite acts to those giving rise to some other independent criminal wrongdoing (not following the ruling of HHJ Head in Ludlam and Others (unreported) Crown Court at Nottingham, October 11, 2011, relied upon by K. The Court declined to give a view on the correctness of HHJ Head’s ruling in relation to High Court restraint orders under Criminal Justice Act 1988 s.77, the issue before the Judge); and (4) There was therefore no basis for importing such a restriction as a matter of law into the elements of the offence where it arose in the context of a breach of a restraint order. However, in cases of breach of restraint orders, pros-ecutors should not charge perverting the course of justice where it was unnecessary to do so. Ordinarily the sanction of contempt of court would suffice. The Court echoed the observations in Archbold 2013, para.28–2, founded on Sookoo [2002] EWCA Crim 800; The Times, April 10, 2002 that the offence should only be charged where there were serious aggravating features such that the maximum sentence for contempt may be insufficient. The judgment did not extend the offence, or if it did, it did so only incrementally (other cases considered: Justin Michel v The Att-Gen of Jersey [2011] JCA 145; Director of the Serious Fraud Office v B [2012] 1 W.L.R. 3170; Vreones [1891] 1 Q.B. 360; Clipston (Vincent) [2011] 2 Cr.App.R.(S.) 101; Rimmington [2006] 1 A.C. 459; Kellett [1976] 1 Q.B. 372; Machin [1980] 71 Cr.App.R. 166; and Abbas Hussain [2012] EWCA Crim 1714).

Prosecution—whether prosecution could be founded on pros-ecutor’s own unlawful actWHITE AND WHITE v SOUTH DERBYSHIRE DISTRICT COUNCIL [2012] EWHC 3495 (Admin); November 8, 2012W should not have been prosecuted for permitting land to be used for the purposes of a caravan site without being

the holder of a site licence, contrary to s.1 of the Caravan Sites and Control of Development Act 1960, where the rea-son that there was no site license was that the purported licence transferred to W from a previous owner of the rel-evant land had been issued ultra vires. The case raised a question which had not been the subject of direct authority: can a public authority which had acted ultra vires rely on the unlawfulness of its own act in order to found a criminal prosecution? The Court concluded that it could not. Cases such as Percy v Hall [1997] Q.B. 924 indicated both that a void act may have some legal effect for some purposes, and that the law would strive to protect innocent third par-ties who had relied upon the apparent validity of that act. Even if there were no other way to regularise the legal posi-tion than a prosecution, a public authority could not rely on its own unlawful act in so doing. In the instant case, it could have regularised the position in another way—even if the local authority could not have judicially reviewed it-self, the mayor or a member of the council could have done so. The Court, in its discussion of the effect of ultra vires acts by public authorities and the “second actor” principle, considered: Smith v East Elloe Rural DC [1956] A.C. 736; Hoffmann-La Roche and Co v Secretary of State for Trade and Industry [1975] A.C. 295; Boddington v British Trans-port Police [1999] 2 A.C. 143; Anisminic Ltd v Foreign Com-pensation Commission [1969] 1 A.C. 147; Hull University Visitor, ex p. Page [1993] A.C. 682; Percy v Hall [1997] Q.B. 924; DPP v Head [1959] A.C. 83; Quietlynn Ltd v Plymouth City Council [1988] 1 Q.B. 114; Wicks [1998] A.C. 92; Credit Suisse v Allerdale BC [1997] Q.B. 306; The King v Downes (1790) 3 T.R. 560 and Pearson v Broadbent (1872) 36 J.P. 485; and Wade and Forsyth, Administrative Law (10th edn), pp.253 to 254 and Forsyth, “The Metaphysic of Nullity—In-validity, Conceptual Reasoning and the Rule of Law” in For-syth and Hare (eds), The Golden Metwand and the Crooked Cord, p.159.Comment: the Council had felt itself hamstrung by the re-fusal of the appellants to regularise the position by applying for the necessary permission (a stance described by Goss L.J. as “troubling”), which would have been granted. The Council resorted to a criminal prosecution because it could think of no alternative, although by the time of the hear-ing of the case stated, at least, the alternative of judicial re-view by the mayor or a councillor was said to be common ground. The appellants lost half their costs below.

Public place—road in university campusCOWAN v DPP [2013] EWHC 192 (Admin); January 18, 2013The justices had been wrong to find that a road through a university was a public place within the meaning of the Road Traffic Act 1988. There was no physical obstacle to the general use of the road. If all that there was evidence of was that students, their visitors and those with business at or employed at the university used the road, then it was not used by the public: those categories of people would have been in the same position as the residents and visi-tors in Deacon v AT [1976] R.T.R. 244; and there was an absence of evidence of other use by the general public. The case was remitted for re-hearing, the Court noting the Crown’s anxiety that drunken students should not be driv-ing round campuses.

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Trial—magistrates’ court—Magistrates’ Court Act 1980 s.142—whether encompassed change of verdictCHAJED [2013] EWHC 188 (Admin); January 17, 2013The magistrates found C guilty of failing to provide a speci-men under s.76 of the Road Traffic Act 1988, whereupon C’s counsel asked if they had made a particular finding and considered an authority. The magistrates adjourned briefly and then returned, announcing a verdict of not guilty. They had been wrong to do so. The magistrates purported to act under Magistrates’ Courts Act 1980 s.142. The purpose and scope of s.142 was very limited, and it was correctly under-stood as a slip rule (Croydon Youth Court ex p. Director of Public Prosecutions [1997] 2 Cr.App.R. 411). Where there had been a simple mistake (or something akin to such), s.142 enabled a Magistrates’ Court to rectify it, if neces-sary by directing the case be reheard by different justic-es (s.142(2)), which rendered the conviction of no effect (s.142(3)(a)). Within that limited scope, the Magistrates’ Court had a wide discretion under the provision. However, once a guilty verdict has been pronounced by magistrates, it did not enable a convicted defendant to make further sub-missions with a view to persuading the bench to change its mind and substitute a not guilty verdict, as happened in this case; nor did it empower the court to hear such submis-sions with a view to their mind being turned. The magis-trates’ reconsideration of their verdict was compounded by their serious procedural failure to give the prosecution an opportunity to respond to the submissions made by C. On the merits, the magistrates’ acquittal was also wrong in law, as it involved them applying the requirement for strict adherence to the statutory procedure for taking a sample in Howard v Hallett [1984] R.T.R. 353 to the non-statutory procedure laid down in a form for the guidance of officers in advance of taking a sample.

Trial—witness anonymity orders—duty of prosecution on ap-plication forDONOVAN AND KAFUNDA [2012] EWCA Crim 2749; December 18, 2012A witness anonymity order under Coroners and Justice Act 2009 s.86 was to be regarded as a special measure of last practicable resort. Such cases were, therefore, by their very nature exceptional, and the obligation on the Crown to com-ply with its duties in relation to full and frank disclosure ap-plied with unremitting force (Mayers [2009] 1 W.L.R. 1915). The observation (in the context of restraint orders), in In re Stanford International Ltd [2011] Ch. 33 that “a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant … he would be saying to the judge” applied. The judge required the assistance of the prosecution to ensure that the effect of any anonymity order, made following the hearing of an ap-plication at which the defendant was neither present nor rep-resented, would not result in proceedings which might be unfair. Where formulaic applications were made before the judge, the papers included factual matters which would have provided a source of significant cross-examination about the witnesses’ credibility, the application and supporting reports did not mention that material, it was not clear whether coun-sel had mentioned it orally, and the judge did not allude to it, the convictions were quashed on the basis that his decisions under ss.88 and 89 of the Act were thereby flawed.

SENTENCING CASESOffender suffering from grave illness HALL [2013] EWCA Crim 82; February 8, 2013Where a defendant suffering from a grave progressive ill-ness attempted to smuggle into the country 2.8 kg of co-caine at 83 per cent purity, worth about £370,000, concealed in the cushion of his wheel chair, the sentencing judge was entitled to find, following Qazi [2011] 2 Cr.App.R.(S.) 8 (p.32) that the normal arrangements for special care for the defendant would apply and that his condition was not such as to mean that any imprisonment would involve a breach of Art.3 of the European Convention on Human Rights. A court which was passing sentence ought not to concern itself with the adequacy of these arrangements in any indi-vidual case, except in a case where the mere fact of impris-onment would inevitably expose the prisoner to inhuman or degrading treatment contrary to Article 3. The sentencing court was fully entitled to take account of a medical condi-tion by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment would have on the defendant, or as a matter of generally expressed mercy in the individual cir-cumstances of the case (Bernard [1997] Cr.App.R.(S.) 135). It would not necessarily do so, and normally would not do so, if the powers of release under the prerogative would provide sufficient response in a case of possible future deterioration, nor would it normally do so if the prisoner represented a danger from which the public needed to be protected. Those who were gravely ill or severely disabled might well have to be imprisoned if they committed seri-ous offences. Their condition could not be a passport to ab-sence of punishment. However, the impact on the appellant of a sentence of imprisonment was greater than it would be on an ordinary defendant by a margin which it was difficult to overstate. His personal mitigation was quite exceptional. His was an appropriate case for an exceptional application of mercy. Three years’ imprisonment reduced to 18 months, which represented the term which the appellant had now served, with the addition of a serious crime prevention or-der under the Serious Crime Act 2007, requiring the appel-lant to surrender his passports and preventing him from travelling abroad or applying for a passport within three years of the date of the appeal.

Conveying List A article into prison STERLING AND OTHERS [2013] EWCA Crim 50In determining the appropriate sentence for conveying a list A article into prison, where the article concerned is a con-trolled drug, it is not necessary to consider the work of the Sentencing Council, though the court may well turn to it for the spirit of sentencing practice.

Murder—minimum termGRIFFITHS AND OTHERS [2012] EWCA Crim 2822; December 21, 2012Where the appellants murdered a member of their drug dealing operation and dismembered his body before dis-posing of it in separate places, the sentencing judge was entitled to adopt a 30 year starting point for the determi-nation of the minimum term, notwithstanding that case did not to fall within the terms of para.5(2)(c) as a murder done for gain. Schedule 21 could not be applied mechani-

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cally, and para.5(2) was in no sense an exhaustive list of the kinds of case which a court might determine to be of “particularly high” seriousness. The Schedule could not be applied in an arithmetical manner by adding or sub-tracting years attributable to the features of the case. The question raised by the appeal was where on the scale of murders did this situation lie? Was the sentencing judge entitled to treat it as of a seriousness compatible to the examples listed in para.5(2) or was he not? The court had concluded that the sentencing judge was entitled to hold that the murder was comparable with the examples given in para.5(2).

ATTORNEY-GENERAL’S REFERENCE NO.73 OF 2012 (CHRISTOPHER JOHN HALLIWELL) [2012] EWCA Crim 2924; December 14, 2012Where the appellant admitted the murder of a young woman whose body was found with her clothing partly re-moved but there was no evidence of a more severe sexual assault, the sentencing judge was entitled to adopt a start-ing point of 30 years for determining the minimum term, taking into account all the aggravating factors, before ad-

justing the term to take account of the appellant’s plea. The court did not accept the proposition that once it was established that there was a sexual context in the murder, the lowest minimum term must be 30 years before aggra-vating and mitigating features were brought into account. The guidance given by Sched.21 was provided to assist judges to determine the appropriate sentence. The judge must have regard to the guidance, but each case would depend critically on its particular facts. There were large gaps between the starting points and the three starting points in the Schedule provided a very broad framework for the sentencing exercise. They were so far apart that it would often be impossible to divorce the choice of starting point from the application of aggravating and mitigating factors. The starting points gave the judge guidance as to the range within which the starting point for the appropri-ate sentence was likely to fall having regard to the more salient features of the offence, but the starting points must not be used mechanistically or so as to produce in effect three different categories of murder. Full regard must be paid to the features of the individual case so that the sen-tence reflected the seriousness of the particular offence.

CommentThe Niqab And The Criminal Trial: Reconciling Religious Belief And The Fair Trial GuaranteeBy L.H. Leigh

The Supreme Court of Canada in NS [2012] SCC 72 ad-dressed the issue whether, under what circumstances and subject to what conditions should a witness who professes a sincere religious belief be allowed to wear a niqab in a crim-inal trial? The provisions of the Canadian Charter of Rights and Freedoms concerning the protection of religious free-dom and the fair trial guarantee are sufficiently close to the provisions of the Human Rights Act 1998 and Arts 6 and 9 of the European Convention of Human Rights to suggest that NS will have an interest for an English audience.NS, who complained of sexual assaults against her by two male members of her family, wished for religious reasons to wear a niqab whilst giving evidence. Permission was ini-tially refused on the footing that her religious belief was not strong. The narrow issue before the Supreme Court was whether the case should be remitted to the judge at prelimi-nary hearing so that he might consider fully whether NS’s desire to wear a niqab was based on sincere religious belief [judgment, para.13].The Court, nonetheless, dealt with the much wider issue whether a witness should be permitted to wear a niqab while giving evidence in criminal proceedings and, if so, by reference to what criteria and in what circumstances. This involves a consideration of the majority judgments of McLa-chlin C.J., Deschamps, Fish and Cromwell JJ. and the judg-ment, dissenting in the result, of Abella J. Lebel and Roth-stein JJ., concurring in the result, hold that the wearing of a niqab impedes communication, between witness and court

essential to a fair trial; that it is accordingly an impermis-sible infringement of the fair trial guarantee so trumping the guarantee of freedom of religious expression contained in s.2(a) of the Canadian Charter of Right and Freedoms.

The issues statedThe problem, of achieving a just and proportionate balance between two Charter rights, that of the witness’s freedom of religion and the accused’s fair trial right, is similar to the enquiry that must be conducted under Art.9.2 of the ECHR once Art.9.1 has been satisfied. McLachlin C.J. concludes that a witness who, for sincere religious reasons wishes to wear a niqab while testifying, will be required to remove it if requiring such removal is necessary to prevent a serious risk to the fairness of the trial because reasonably available alter-native measures will not prevent the risk and the salutary ef-fects of requiring such removal including the effects on trial fairness outweigh the deleterious effects of doing so, includ-ing the effects on freedom of religion [judgment, para.3].The Court must first determine whether permitting the wit-ness to wear a niqab while testifying is necessary to protect her freedom of religion. This issue concerns the sincerity of the witness’s religious belief rather than whether it cor-responds to the dictates of the religion that she professes. Inconsistent adherence to a religious practice, does not nec-essarily indicate a lack of sincere belief: the witness may, for example, have had to accommodate secular requirements such as permitting (as here) a photograph of her face to be

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taken for the purpose of obtaining a driver’s licence. The strength of the witness’s religious beliefs may become rel-evant at a later stage at which a balancing of rights may be required.The court thus sidesteps the vexed question whether wear-ing the niqab is a requirement of Islamic belief or a tribal custom not mandated by religious texts. This was the ap-proach taken in the New Zealand case of Razamjoo [2005] DCR 408 which followed American authorities. It would also appear to be the correct approach under the European Convention on Human Rights where the inquiry is into the genuineness of an individual’s belief as a question of fact but not into its validity by reference to orthodox teaching of the religion in question: R. (Williamson and Others) v. Sec-retary of State for Education and Employment [2005] UKHL 15 at [22], per Lord Nicholls of Birkenhead). Freedom of religion protects the subjective belief of the individual.Assuming sincere belief, the inquiry then shifts to consider whether there are alternative measures for protecting trial fairness that would also allow the witness to exercise her religious practice. A similar mode of inquiry arises under Art.9 of the European Convention in Human Rights where it is accepted that while freedom of religion is absolute its manifestations in any given context may be evaluated. If no reconciliation can be effected the inquiry moves to the third question, noted above, whether the effect of ordering removal of the niqab in the interests of preventing a serious risk to the fairness of the trial outweighs the deleterious effects of doing so. In this latter respect very different con-siderations are being weighed: assessing a risk that victims and witnesses will not come forward to testify if required to remove a niqab involves a different, not necessarily wholly speculative inquiry, to that which asks whether doing so will have an disproportionate effect on religious freedom. The latter question involves an inquiry into values to which empirical evidence can have little relevance.McLachlin C.J.’s judgment concludes that the common law assumption that seeing a witness’s face is important to a fair trial cannot, in the absence of negating evidence, be discarded lightly [para.21]. Such assumptions regarding the importance of a witness’s facial expressions to effective cross-examination and assessments of credibility have not been shown to be unfounded or erroneous. In Canada a wit-ness may be permitted to give evidence by audio link if the Court considers it appropriate but the Court must consider any potential prejudice to the parties caused by the fact that the witness would not be seen by them (Criminal Code, Canada, s.714,3 and s.7.14(b)). This, and other provisions permitting a child witness to testify by closed-circuit televi-sion or from behind a screen so that the witness cannot see the accused but the accused can see the witness, reinforced McLachlin C.J.’s conclusion that not seeing a witness’s face may limit the fairness of a trial by impeding effective cross-examination and the assessment of credibility [paras 23–24]. Changes in a witness’s demeanour can be highly instructive [para.27]. Its importance is too deeply rooted in the criminal justice system to be lightly set aside.Whether the ability to observe a witness’ face may have an impact on the fairness of the trial depends on the evidence the witness is to give: purely formal evidence stands on a different footing from contested evidence central to the case and a witness who gives formal or uncontested evi-dence may wear a niqab should she choose to do so.

No reasonable alternative?Where religious freedom and fair trial rights appear to be in conflict the trial judge must seek to accommodate them where possible. Accommodation must be approached on a case-to-case basis and must not infringe the open-court principle.Where there is no reasonable alternative the Court must weigh whether the salutary effects of requiring the wit-ness to remove her niqab outweigh the deleterious effects of doing so. The task is to evaluate the impact of failing to protect the witness’ sincere belief in the particular context. The issue whether a practice is a requisite of religious belief according to the sacred texts of that religion may, perhaps, arise in the context of an inquiry into the factual question of sincerity of the witness’ belief. It should, furthermore, be possible for a court to determine how important the practice is to the claimant. The actual situation in the courtroom-the people present and any measures that can be put in place to limit facial exposure-and how this situation may affect the harm to a claimant of affecting her religious practice [para.36] may be significant. In Razamjoo the Court ruled that the witness must remove her burqa but her face would be screened from the public and the accused while remain-ing visible to the judge, counsel and female court staff.As to the broader societal harms of requiring a witness to remove the niqab in order to testify the court notes the spectre, raised by the claimant and supporting groups, of niqab wearing women being reluctant to report offences and to give evidence at trial. It might be thought, surely, that a woman who is prepared to remove a niqab for the pur-pose of a photograph required for a driving licence as here (and presumably for other documents such as a passport) would be prepared to vindicate her right to bodily integrity by giving evidence against her abuser, sans niqab, subject to the sorts of accommodation adopted in Razamjoo.If viewing the witness’ face is integral to the witness’s de-meanour and if demeanour may be critical to assessments of credibility it is not easy to see how insistence on giving evidence behind a niqab can, save perhaps in truly excep-tional circumstances, be allowed to weigh in the balance against the fair trial guarantee. Abella J. (dissenting in the result) regarded the arguments asserting the value of see-ing the witness’ face while giving evidence as overblown on the issue of credibility. For the majority “where the liberty of the accused is at stake, the witness’s evidence is cen-tral to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab.” [para.44].How persuasive is this judgment likely to be in England and Wales? Under the ECHR and the HRA 1998 the right to free-dom of religion is absolute, but manifestations of religious belief admit of such restrictions, provided by law, as are neces-sary, inter alia, to protect the rights and liberties of others. Ju-dicial inquiry into the wearing by a witness of a niqab or burqa must turn on the consideration whether, in the circumstances, wearing a niqab is likely to infringe the accused’s right to a fair trial. While the YJCEA ss.16–30 and the exercise of the court’s inherent power permit steps to be taken to protect vulnerable witnesses including concealing the identity of the witness, the right of defence advocates to see the witness’ face has been preserved. Its value to the assessment of credibility is as firmly embedded here as in Canada. Accordingly, it seems likely that the compromise solution proposed by McLachlin C.J. and her colleagues will be persuasive before English courts.

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FeatureConfiscation: Waya and other recent developments

By Polly Dyer1 and Michael Hopmeier2

Part II Waya appliedWaya was recently followed in R. v Axworthy [2012] EWCA Crim 2889 where a confiscation order, made after the appellant’s conviction for theft of a Land Rover and attempting to pervert the course of justice, was quashed because the vehicle had been recovered and returned to its owner. The appellant submitted, and the respond-ent correctly conceded, that given the dicta in Waya [at para.29 of the Supreme Court’s judgment] the confisca-tion order should be quashed as in circumstances where the vehicle had been recovered, making such an order would be disproportionate and in breach of Article 1 Protocol 1 [paras 6 and 11]: “where the item has been wholly restored to the loser, a confiscation order requir-ing the defendant to pay the same sum again does not achieve the object of the legislation of removing from the defendant his proceeds of crime, it simply amounts to a further pecuniary benefit and would be disproportion-ate” [para.12].In Waya the Supreme Court set out principles as to how the benefit figure is to be calculated when mixed funds are used to purchase a property. The Court held that the mortgage advance did not form part of the benefit; this may impact on and reduce confiscation orders made in the future. While some practitioners have been sur-prised that a mortgage obtained through false represen-tations does not form part of the “benefit”, the authors respectfully submit that the Supreme Court followed rational legal reasoning in finding that the loan sum in these circumstances never became the defendant’s or came into his possession [para.53]. In the case of an or-dinary loan induced by fraud, the defendant does obtain the loan sum advanced because it comes into his con-trol and possession: the defendant can use it either as he wishes or for the particular purposes for which it was advanced [para.48]. The defendant in Waya had no con-trol over the disposal of the mortgage advance into the recipient’s hands; the sole and predetermined purpose was to form part of the purchase price of the flat, with the mortgage lender having security for its repayment from the moment of completion. The defendant only obtained the right to have the mortgage advance applied in the acquisition of his flat and this thing in action had no mar-ket value at, or immediately after, completion. Waya does envisage cases where this will not be the case, namely in cases where the false representations included a dishon-estly inflated valuation of the property being purchased, which may induce a larger loan than would otherwise have been made or a loan which is not fully secured as the lender believes, or where the property purportedly being purchased does not exist as in both cases the thing in action will have a real value to the defendant [para.53].1 Barrister at QEB Hollis Whiteman.2 Circuit Judge.

Calculating/identifying “the benefit”—recent casesWaya is not the only recent case to address how the benefit figure should be calculated; Waya and Ahmad involved the interpretation of s.76(4) of POCA and s.71(4) of the CJA re-spectively and there are a number of further recent cases which also provide guidance.R. v James and Blackburn [2012] 2 Cr.App.R.(S.) 44 was ap-plied in Ahmad: it was held, amongst other issues, that the appellant’s expenses, for example for equipment purchased for use in the course of an excise duty fraud, did not form part of the benefit—the equipment was not obtained by the appellant “as a result of or in connection” with his criminal conduct. It was obtained as a result of a lawful transaction with the supplier; his criminal conduct formed no part of the transaction. The position of the Court of Appeal on this issue is made very clear in Ahmad (see Part I).R. v Majid [2012] EWCA Crim 1023 cited Ahmad and ad-dressed s.71 of the CJA. The appellant was convicted of con-spiracy to cheat the public revenue. He was made subject to a confiscation order pursuant to the CJA. The appellant appealed against this confiscation order, both as to the find-ing on benefit and on realisable assets. In relation to the cal-culation of the benefit, it was submitted that the judge had erred by approaching the question of benefit by reference to the total value of the fraud rather than making an assess-ment of the value of the benefit the appellant obtained. In dismissing the appeal, it was held that the judge had applied the correct principle, namely that the benefit gained is the total value of the property obtained, not the appellant’s net profit. This case, along with James and Blackburn and Ah-mad, shows that expenses incurred should not be deducted from the benefit figure. Submissions were also made, citing Ahmad and McIntosh, that there was insufficient evidence to support the conclusion of the first instance judge and, in another reference to proportionality, that the determination of the appellant’s assets should be just and proportionate [para.17]. The Court of Appeal found that the judge had “stood back from the detail of the case, looked at it as a whole and applied what… was logic which cannot be im-peached” [para.25].In R. v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840, the appellant company was convicted of being the owner of a rented property in a selective licensing area with-out a licence (contrary to the Housing Act 2004 s.95(1)). A confiscation order was made under POCA representing the total amount of the rent it had received during the period when the property was unlicensed. The company appealed to the Court of Appeal. Section 95(1) confines the offence to that of having control of or managing a house which was required to be licensed but was not. Section 96(3) of the Housing Act specifies that no rule of law relating to the validity or enforceability of contracts in circumstances in-volving illegality is to affect the validity or enforceability of the provisions of a tenancy or licence requiring payment of rent. It follows that the right to recover rent remained enforceable, notwithstanding that a landlord had no licence

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for the house in question. Therefore, this was held to be inconsistent with the notion that the landlord was unlaw-fully obtaining rent (pursuant to s.76(4)) “as a result of or in connection” with his breach of s.95(1). There was no causal connection between the criminal conduct and the “benefit” received; the continued receipt of rent was not the product of the crime.The Court of Appeal has, however, certified a point of law to the Supreme Court (R. v Sumal & Sons (Properties) Ltd (Supreme Court Pronouncement) [2012] EWCA Crim 3109), namely whether rental income from a property which was unlicensed contrary to s.95(1) of the 2004 Act could be a person’s benefit as being property obtained as a result of or in connection with particular criminal conduct for the pur-poses of s.76(4) of the 2002 Act. In R. v Muia the appellant appealed against a confiscation order made pursuant to the CJA following her conviction for offences concerning dishonest claims for social secu-rity benefits, which occurred over a number of years. Dur-ing this period she had purchased a property, which she let out to a third party, accruing rental income, whilst she continued to live in council accommodation. The trial judge included the rental income from this property, pursuant to s.71(4), as part of the benefit figure. The appeal was dis-missed: a judge was entitled to include it in a confiscation order as the offender would not have received the rental income “but for” her criminal conduct [para.18].R. v Worrall [2012] EWCA Crim 1150 was another case in-volving s.76(4) of POCA. The appellant was convicted of con-spiracy to keep a brothel used for prostitution. The judge had made a confiscation order under s.6 of POCA. In the particu-lar brothel concerned, £40 was paid to the prostitute per cli-ent independently, whilst the brothel received £20. The ques-tion was whether the benefit figure should be £60 or £20 per client. The judge in the Crown Court had held the former. The appeal was successful as the Court held that the judge had erred by equating turnover with benefit: in determining whether a defendant has obtained property the court should, subject to any relevant statutory definition, apply ordinary common law principles to the facts as found (following May). As such, there was no basis for saying that the benefit ob-tained was more than £20 per client.R. v Ramdas [2012] EWCA Crim 417 concerned five bar-rels which, when found on the appellant’s business prem-ises, contained a number of Jamaican dollar coins, which were stolen property. The appellant was convicted of pos-session of criminal property contrary to s.329 of POCA. He was made subject to a confiscation order. The appellant ap-pealed on the basis that the benefit calculation was incor-rect: he had not obtained a benefit as he had been a mere “custodian or courier” of the barrels and coins (as per R. v Clark and Severn [2011] 2 Cr.App.R.(S.) 58). This case turned on its facts and his appeal was dismissed. The judge had found, as was apparent from his remarks in sentencing and at the confiscation hearing, that the appellant was a full participant in the criminal enterprise (although no doubt not acting alone) and there was nothing to suggest limited involvement by him. As such, the appellant was not to be classed as a custodian or courier and, for the purposes of POCA, had obtained the barrels and coins as a result of or in connection with the offence.R. v Clark and Severn [2011] 2 Cr.App.R.(S.) 55 was cited in Ramdas. In this case the Court of Appeal held that, when making a confiscation order in respect of an offender con-victed of conspiracy to handle stolen cars, the judge had

erred in ruling that the appellant had been a principal con-spirator and that the assessment of his benefit should be the valuation of the vehicles that passed through his hands at the material times. The appellant’s role had been assisting in shipping the cars. The Court held that the appellant was a mere bailee of the cars for the purpose of containerising and transporting them in preparation for their shipment. He received the cars in the capacity of bailee and as such he prima facie received the cars not for his own benefit but for the benefit of other principal conspirators. There was noth-ing to suggest that the cars were jointly owned by him with other principal conspirators [para.28]: a defendant may play an important role in a conspiracy without obtaining prop-erty for the purpose of the test of benefit.R. v Lambert & Walding [2012] 2 Cr.App.R(S.) 90 applied the dicta in May (and R. v Green [2008] UKHL 30) in address-ing joint benefit. The appellants appealed against the im-position of their respective confiscation orders. The judge had held that there had been a joint venture between the two co-defendants, with both benefitting jointly. As such, he made joint and several orders rather than apportioning the benefit figure between them. The appellants submitted that this was unlawful, a breach of the European Convention on Human Rights 1950 Article 1 Protocol 1 as the combined effect of the orders meant the State would receive the ben-efit figure twice, and an abuse of process. The appeals were dismissed and it was held that, applying the language of the statute, it was not disproportionate to make an order de-priving a defendant of a benefit which he had in fact and law obtained within the limits of his realisable assets. The offender was protected to the extent that the sum recover-able would not exceed either the joint benefit or his realis-able assets. It was not an abuse to seek a confiscation order where a substantial order was inevitable.R. v Gangar & White [2012] EWCA Crim 1378 illustrates the importance of distinguishing between where co-defendants jointly benefit and where they have joint realisable assets. The appellants appealed against confiscation orders made under the CJA following their convictions for investment fraud. The Crown Court judge had found that the appellants had joint assets and, considering that he was bound to do so by May, he treated the whole of that sum as being avail-able to each individually. The issue was whether he had been right to do so. The appeals were allowed. The judge had er-roneously applied the principle in May (which addressed the determination of the benefit) to determining the available amount. A court is not to make an order that is beyond a defendant’s means to pay. If there was a jointly owned asset, the court had to determine the extent of each owner’s benefi-cial interest. If a defendant was not the sole beneficial owner, the proceeds could not be treated as being all his. This is the position whether the other co-owner is a defendant or an unconnected third party. If all jointly held assets were treated as being wholly available to both appellants, then the result would be orders which, by definition, required one or other defendant to pay what he does not have: if one was satisfied, it becomes impossible to satisfy the other. Therefore, in this case the orders were quashed and replaced by orders that did not contain any double counting of available assets.In the recent case of R. v Druce [2013] EWCA Crim 40 the appellant appealed against the amount of a confiscation order imposed after he had pleaded guilty to being concerned in a money laundering arrangement and to possessing criminal property. The judge at first instance had rejected the appel-lant’s claim that some of the hidden assets had passed out of

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his control. On appeal, the appellant sought to admit fresh evidence, in the form of an affidavit, in which he attempted to explain why his earlier evidence about the hidden assets had been lacking. The Court of Appeal held that there was no ra-tional basis on which to admit a witness’s fresh evidence for the purpose of trying to explain inadequacies in his earlier evidence. In view of the appellant’s evidence at first instance, the Court held that it was difficult to see how the judge could have reached a different conclusion. The appeal was, there-fore, dismissed in relation to this issue (grounds three and four). It was allowed to a limited extent in that the benefit figure was reduced to take into account a concession by the Crown that there had been an element of double counting.

Beneficial interests in property—recent casesIt is becoming increasingly common for a Crown Court judge (who may have little, if any, experience in civil or fam-ily law) to be faced with submissions in confiscation proceed-ings that a family member or other third party claims to have an equitable or beneficial interest in property asserted by the prosecution to belong solely to the defendant thereby (if the claim is well founded) reducing the value of available assets. The task of the judge in such cases is by no means simple or straightforward. Guidance has been provided in recent deci-sions which have helpfully clarified and reinforced the princi-ples for assessing an equitable interest. Jones v Kernott [2011] UKSC 53 has become a key case on this issue. The appellant appealed against a decision that a property co-owned by her and the respondent was held by them as tenants in com-mon in equal shares. The appellant and respondent had pur-chased a property and mortgage in their joint names. They had lived there together, sharing the household expenses for over eight years. Subsequently, the respondent had moved out of the property, whilst the appellant had remained with their children. The respondent had made no further contri-bution towards the expenses. This situation continued for over 14 years, before the property was put up for sale. The respondent commenced proceedings in the County Court, claiming a declaration under s.14 of the Trusts of Land and Appointment of Trustees Act 1996. A declaration was made that the beneficial interest was split 90%/10% in favour of the appellant. That decision was upheld on appeal; however the Court of Appeal had allowed the respondent’s appeal.The Supreme Court held that, following Stack v Dowden [2007] UKHL 17, where a property is brought in the joint names of a cohabiting couple (married or unmarried), both responsible for the mortgage, but with no express declara-tion of their respective beneficial interests, the presumption is that the beneficial interest follows the legal estate, there-fore it will be split 50/50. Any challenge to the presump-tion is not to be lightly embarked on given that a decision to jointly buy a property indicates a commitment to a joint enterprise [paras 19–22]; however, it can be rebutted by evi-dence of a contrary intention. Each case will be fact specific. It will be for the court to decide the parties’ common inten-tion (and if necessary impute an intention) as to what their shares in the property should be, in light of their whole course of conduct in relation to it [paras 31; 46–47] (Gissing v Gissing [1971] A.C. 886; Oxley v Hiscock [2004] EWCA Civ 546). In the instant case, the court made a finding of fact that the parties’ intention regarding beneficial interests did in fact change, an intention which could be inferred from their conduct [paras 48–49].Jones v Kernott was applied in Re Ali [2012] EWHC 2302, where six family members applied for declarations of ben-

eficial interests in five properties covered by a restraint order. It was held that the starting point was the legal own-ership of each property and that it was for the party assert-ing that beneficial interests were held other than as per the legal title to prove their case (Stack v Dowden applied). Applying Jones v Kernott, there were two questions to be asked, namely whether it was intended that the other party would have any beneficial interest in the property at all and, if so, what that interest was. In answering the first ques-tion there needed to be evidence of an actual agreement, arrangement or understanding between the parties, which had to be based on evidence or express discussion between them (Lloyds Bank Plc v Rosset [1991] 1 A.C. 107). The court could have regard to the whole course of dealing between the parties in order to ascertain or impute their intentions when considering the second question. The applicant’s credibility is essential in such a case [paras 109–111].It was held in R. v Perrey [2011] EWCA Crim 2316 that in order to establish that a person had acquired a beneficial interest there has to be some evidence as to when and how that ben-eficial interest was acquired. In this case there was none. The appeal was confined to the inclusion in the value of the realis-able property of the entire value of the appellant’s matrimonial home. The property had been purchased and registered in the sole name of the appellant’s wife. The Crown Court judge had included it as realisable property on the basis that the appellant had been the sole owner of the previous matrimo-nial home when it was sold and the proceeds of the sale had been used (somewhat indirectly) to purchase the new house. By placing this property in his wife’s name, the appellant had made a gift to her of the property in that he had procured the conveyance of the property to her without any significant con-sideration being provided. The basis of the appeal was that it was submitted that the judge should have determined that the beneficial interest was 50/50 as between the two and that his wife had provided consideration for her interest because she had had a beneficial interest in the previous home. The appeal was dismissed as there was no evidence to show that the appellant’s wife had acquired a beneficial interest in the first property: she had made no significant contribution to the house and no steps were taken to vest it in her name (which led to the inference that this was not the intention).Jones v Kernott was applied by Crown Prosecution Service v Piper [2011] EWHC 3570 (Admin). The applicant wife claimed a half-share beneficial ownership in the matrimoni-al home that she shared with the respondent, her husband, and which was registered in his sole name. A receivership order had been made over her husband’s assets because he had failed to satisfy a confiscation order. The court was required to determine whether there had been a common intention for the applicant to have a beneficial interest, if so, the size of the beneficial interest and whether the power of sale should be postponed to enable the applicant to buy the respondent’s interest. Judgment was made in favour of the applicant: she had discharged the burden and displaced the presumption that equity followed the law.Whether she had a beneficial interest depended on her and her husband’s common intention. This intention may change over time but in this case the “crunch question” was whether the husband and wife had a common intention at the date of the husband’s arrest and the time the restraint order was made [para.56]. The court, having reviewed the whole course of dealings between husband and wife, decid-ed that everything about their interaction led to the conclu-sion that the applicant had an interest which amounted to

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a co-ownership even though neither party had consciously formed such an intention. The applicant’s beneficial inter-est was found to amount to a half share even though she had not paid half the purchase price as there was no indi-cation that they had intended that she should only have a fractional share calculated by reference to their respective monetary contributions. On the evidence, co-ownership had been their common intention.Similarly, in Edwards v CPS [2011] EWHC 1688 (Admin) the presumption of an equal beneficial interest in a jointly owned property was rebutted because that was the com-mon intention of the parties.In R. v Ghori [2012] EWCA Crim 1115 the appellant submit-ted that the judge had erred in failing to discount a charging order made in favour of a third party. The Court empha-sised that the onus was on the appellant to show that his property was so encumbered by producing clear and co-gent evidence and that the court may look critically at that interest on the evidence before it. The fact that a charging order has been made in favour of a third party does not, of itself, necessarily mean that the third party has an interest in the property. It was held that the judge had been entitled on the evidence before her to conclude that the charging or-der was merely a device and the property remained the ap-pellant’s: the burden was on the appellant and he had failed to establish that the value of the property, by reason of the charging order, was diminished.R. v Ghori referred to R. v Rowsell [2011] EWCA Crim 1894, where the Court of Appeal had stated that “in applying the Proceeds of Crime Act 2002, the court cannot ignore ordi-nary rules of property and trust law without specific statutory authority”. In Rowsell the appellant appealed against a confis-cation order made under POCA 2002. He was the registered legal owner of land valued at £20,000. However, the land had been divided, with each purchaser of a plot paying money to the appellant. Whilst each purchaser had paid money to the appellant, no interest had been registered in their favour at the Land Registry. The judge at first instance found that, as legal owner, the appellant was to be regarded as having a full interest in the property and that its market value formed part of the available amount. The appellant asserted that the land had been divided so that he had the beneficial interest in only one tenth of it and the various purchasers had the ben-eficial interest in the remainder. The judge, whilst accepting the extent of the appellant’s beneficial ownership, stated that he could not establish the beneficial claims of the purchas-ers because for the purposes of s.79(3) there was no formal claim or other evidence to support them. The appellant on appeal submitted that the judge ought to have held that the recoverable amount referable to the land was limited to the value of his beneficial interest, namely one tenth. The appeal was dismissed: although it was accepted that others had paid money to the appellant, there was no reliable evidence, such as, for example, a declaration of trust, upon which the ben-eficial interest of those other persons could be established. No details had been given as to the precise nature of their interest i.e. whether a licence or something more had been obtained was unclear and no equitable interest had been registered. Therefore, the judge had rightly been unable to take into account any other interest and came to the only con-clusion available on the evidence. The judgments of Ghori and Rowsell are indicative of the Court of Appeal’s approach where a defendant is asserting the beneficial interests of oth-ers, which if found will reduce his available amount, namely that the onus is on the defence to provide clear and cogent

evidence; anything less will result in the whole value of the property being taken into account.R. v Alom [2012] EWCA Crim 736 repeats the starting point as enunciated in Stack v Dowden: the presumption is equity follows the law. The burden is on the person attempting to prove this is not correct. Furthermore, Baroness Hale’s finding at para.69 of Stack v Dowden that “where legal own-ership is clearly expressed, it will be a rare outcome that beneficial ownership does not follow the same pattern” was referenced and emphasised [para.23]. In this matter, a con-fiscation order had been made under POCA. The conten-tious matter on appeal was the beneficial interest the appel-lant supposedly had in a property. He asserted, along with his parents, all three the legal owners and appearing on the mortgage of the property, that he had only assisted his par-ents in obtaining the mortgage and it was their common in-tention that his parents alone should be the joint beneficial owners. The judge’s finding of fact had been that the appel-lant had failed to discharge his burden of showing that the legal title did not reflect the beneficial ownership. As such, the appeal was dismissed.R. v Harriott [2012] EWCA Crim 2294 concerned the tim-ing and means for determining equitable interests: in this case it was held that the Crown Court judge had fallen into error by concluding that he could not hear evidence and make a finding that a spouse had an equitable interest in a property (he had thought that the equitable interest would have to be asserted in separate civil proceedings and the Crown Court could not declare his interest).

Don’t forget to assist the Judge!R. v Waithe [2012] EWCA Crim 1168 impresses upon trial advocates that a judge is entitled to assistance, particularly from the Crown, in determining the correct amount of a confiscation order. The judge at first instance had not been directed to the appropriate figures and was permitted to fall into error. The Court of Appeal “[found] that disappointing. The Crown was there to advance its case and to assist the judge. He was entitled to better” [para.22].

Endnote(1) The confiscation of the proceeds of crime has proven

to be a vital tool in the fight against economic crime of all kinds, including corruption. The principle that a criminal should not benefit financially from his crime is universally accepted as fair and just. Each year more countries throughout the world adopt asset re-covery provisions in their legal systems.

(2) As economic crime, both domestic and international, appears, according to the NFA, to continue to in-crease, confiscation orders are vigorously pursued by the authorities upon conviction of defendants and are vigorously contested in many cases, particularly where “disproportionate” orders may be sought.

(3) The Proceeds of Crime Act 2002 continues to provide a fertile area for practising lawyers and academics alike to debate and argue the meaning of its provisions and their interpretation on the facts of any particular case. Waya and the cases referred to in both parts of this article should provide assistance to the hard-pressed first in-stance judge and practitioner in approaching these cases fairly and properly. However, there seems little doubt that the Court of Appeal and the Supreme Court will be kept busy in this area of the law for some time to come.

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Issue 2, March 11, 2013 Archbold 2... · 2013-12-09 · SMITH [2013] EWCA Crim 11; January 15, 2013 S appeared for trial on an indictment charging (count 1) making a threat to kill