28 October 2019 to 28 October 2020
PNLD Legal Advisers Danielle Johnson and Ruth Hartley provide an overview of Anthony Edwards criminal law update as presented at our Criminal Law Conference on Thursday 17 October 2019.
Danielle Johnson, PNLD Legal Adviser, provides an overview of Part 1 of Anthony Edwards’ criminal law update, as presented at our Criminal Law Conference on Thursday 17th October 2019.
Anthony Edwards, of TV Edwards LLP, started his first presentation by noting this year has again been relatively quiet on the legislative front, with Brexit still impending. A large amount of the legislation in the update is also not yet in force but is included to provide an awareness of what is to follow.
Firstly, he referred to the Stalking Protection Act 2019, which is currently not in force. This allows the Magistrates Courts to make civil orders on the application of the police. An order may be granted if three requirements are met and Anthony noted a particular issue he perceives with the requirement in section 1(1)(b) of the Act, that ‘the defendant poses a risk associated with stalking to another person’. Anthony commented that most stalkers have their attention on one person and this requirement, he believed, required two people to be involved, as firstly, acts associated with stalking are required, and then secondly, another person must be at risk. He added that the notification requirements are a useful addition as those not already on the sex offenders register will placed on the stalking register.
A further key piece of legislation is the Mental Health Units (Use of Force) Act 2018. Key parts of the Act are again not yet in force. The legislation was clearly brought in regarding concerns over the use of force when dealing with the mentally ill. Once this legislation comes into force, all police officers will be required to wear, and have operational, body worn video, when assisting staff working in a mental health unit. Following such, the court will have discretion to exclude evidence if this is not complied with.
The Crime (Overseas Production Orders) Act 2019 came in force on the 9th October 2019 and deals with obtaining electronic data from other jurisdictions. This legislation essentially replaces the procedure under the Mutual Legal Assistance Treaty, which is very slow, and the purpose of this legislation is to speed up the process. An officer can now go before a Crown Court, request the relevant material, and if they meet the requirements, the judge will make an order to release the information. This will only be legally enforceable once a bilateral agreement is signed with the corresponding country. Anthony commented that the main country the UK are concerned with in this area is the US, for the likes of Google and Facebook, and the US agreement has already been signed. One particular issue was noted by Anthony, that although the legislation allows you to have the data it does not permit you to have the encryption codes, so if the data is encrypted, it will not be of use. Further, Anthony expressed his opinion that on the downside, only appropriate officers can apply for the orders, but a defence solicitor may need access to view such material, at the request of their client. Therefore, Anthony states defence solicitors will likely be making disclosure orders on the basis that relevant material is available to the police.
Next, Anthony went on to discuss a new major piece of legislation, the Counter Terrorism and Border Security Act 2019, the majority of which is not yet in force. The Act is split into 2 parts, with the second part increasing penalties. The legislation tightens current offences and brings them in line with modern circumstances. The Act creates a new offence of entering or remaining in a designated area, meaning it will be an offence simply to be in a particular designated country. As far as Anthony was aware, Syria is not currently named. A list of exceptions to the offence also apply, such as humanitarian aid and attending family funerals etc.
The Voyeurism (Offences) Act 2019 introduced the offences known as ‘upskirting’ and came in force on 12th April 2019. The Act comprises of two offences, one to operate equipment without consent and / or reasonable belief of consent and the other to record an image for the purposes of sexual gratification, or to humiliate, alarm or distress. Anthony commented that in relation to the second offence, officers will need to concentrate their questioning on the suspect’s purpose / reasons for carrying out the act, as if a person carried out the act for the purposes of sexual gratification, they will be placed on the sex offenders register.
The Animal Welfare (Service Animals) Act 2019 was briefly discussed, which Anthony commented was to correct a legislative error, which was exempting people from committing the offence. Now, the legislation confirms a person who causes unnecessary suffering or harm to a service animal is guilty of an offence.
Lastly, the Offensive Weapons Act 2019, which is still largely not yet in force, was discussed. Anthony commented that Part 1 of the Act was a catch up in the law due to incidents involving corrosive products and substances. It creates offences for selling, delivering, and arranging delivery, and most importantly, an either way offence of having such substances in a public place.
Knife Crime Prevention orders are also introduced in the Act. Unlike the Stalking Protection Orders, these can be made on a civil application or on conviction. Anthony’s view was that a Criminal Behaviour Order could always be sought on conviction, so it is more likely to be used as a civil order. Anthony discussed the notification requirements, with the breach of such also being an offence. Furthermore, the burden of proof has been lowered to a reasonable person test for threatening a person with an offensive weapon and the first offences of threatening a person with an offensive weapon, bladed article or corrosive substance or possession of certain offensive weapons in a private place have been introduced. The final part of the Act introduces a new device and weapon into the Firearms Act 1968 with transitional provisions.
Next, Anthony went on to discuss changes and updates affecting criminal investigations.
Firstly, Anthony spoke about the significant case of R v Green 2019 EWCA Crim 11, which changes the position of inferences from silence. It was ruled that a general open question can now give rise to inferences. Anthony mentioned that in his view, the particular point to note in this case was that there had been full disclosure of the incident. CCTV of the incident was available and the defence solicitor was able to view it before the interview.
Changes to PACE Code C & H were briefly mentioned and the necessary amendments for dignity, respect and hygiene needs, particularly in relation to women with menstrual hygiene needs.
The case of R v Shepherd 2019 EWCA Crim 1062 was then discussed. The defence sought to exclude evidence at trial from a witness, on the basis he was giving an interview in which PACE protections should have been applied, as the interview amounted to an admission of an offence under the Port of London byelaws. The court stated that officers are not to be deprived of information obtained just because an esoteric technical offence has arisen in an honest, investigative situation. Therefore, such evidence should not be excluded from trial. Anthony noted that officers also need to be aware when using body worn video for an interview that should have been conducted properly and subject to the appropriate protections. His personal approach is that if such evidence is to be produced at court, he will not permit the sound to be played, as in his opinion, it is either hearsay or an interview that should have been conducted under PACE rules.
Appropriate adults were mentioned and Anthony’s particular point of note was that the interview at the police station is day one of the trial. If he believes his client is mentally unwell and the police still refuse to accept that, but a Forensic Medical Examiner supports him and then subsequently an expert at trial, this point is won for him. In such instances, his view is that the most sensible custody officer will allow an appropriate adult, especially in the most serious cases, since evidence could be held inadmissible.
Anthony briefly outlined the case of the Commissioner of Police for the Metropolis v MR 2019 EWHC 888 (QB), which is one of many that confirms that the test of whether an arrest is necessary is a high bar. He noted that in regards to arrest, special warnings appear to be rarely used, but furthermore, arrests are rarely made. He viewed special warnings as a powerful police tool and if given directly, he believes they will unnerve most serious of criminals.
Comment was also made in regards to search warrants and the duty of candour to any court application for that matter. Anthony reiterated that it is necessary for the officer to be open on the circumstances, in order to avoid pitfalls later on. Anthony further expressed his opinions on the disclosure of criminal records and the multi conviction rule, whereby if more than one offence is committed, it is not protected from disclosure. The disclosure of such offences appears to still be happening, despite the Supreme Court ruling that it is incompatible with Human Rights as in R (on the application of P) v Secretary of State for the Home Department  UKSC 3.
Anthony noted some particularly useful points from the updates to the CPS guidance, including the guidance on mentally ill victims and witnesses, and on the prosecution of the mentally ill. Public Order offences now include an interesting third stage in the test, which is the ECHR stage to consider freedom of expression etc. Anthony also discussed vigilante groups in regards to child sex offenders, where such offences were previously charged as an attempt. Advice states that impossibility is not a defence, so the full offence should be charged, as an offence of attempt will give rise to discounts on sentencing. Furthermore, guidance in relation to firearms states that where firearms are found disguised as another object (e.g. stun guns disguised as torches), there will be no minimum sentence unless there are aggravating factors.
Next, mention was made to the reviewing of prosecution decisions and the case of R (Torpey) v DPP 2019 EWHC 1804 (Admin). This case was subject to a victim’s right to review and a decision not to prosecute a police officer when the subject of a police chase was killed. In this instance, it was ruled that the CPS had not looked at enough evidence leading up to the event and it was important to know how the officer had driven before the crucial moment. The CPS were therefore asked to look at the case again.
Anthony then proceeded to discuss criminal procedure and any notable cases or changes in the law.
Anthony began with the case of Griffiths v CPS 2018 EWHC 3062 (Admin), which involved domestic violence. As with most cases, the victim did not want to give evidence, however she did confirm that her statements to the police were true. The defence tried to apply to stay the case, as she was not able to be cross examined. Anthony expressed his uncertainty on why the notes were treated as a prior inconsistent statement and in his view, if it was to be treated as such, the evidence would then admissible hearsay. Anthony’s advice to those dealing with similar cases was to think carefully about trying to get victims to court and giving evidence whilst there, otherwise it is unlikely a defence will agree to the evidence being admitted.
Next, the Court of Appeal case, R v E 2018 EWCA Crim 2426, in regards to disclosure, was discussed. The judgement confirms the importance of third party issues surrounding phone and social media evidence and approved the new guidance issued in regards to reasonable lines of enquiry and communication evidence. The judgement outlined appropriate cases when such evidence may be examined, however it is not required in instances of historical abuse, or when no prior contact was made i.e. stranger rape.
Anthony also briefly mentioned the Criminal Procedure Rules, with the latest changes including a specific group of detailed rules and forms regarding applications to the court. He commented the website was useful, as by searching in the appropriate rule, the appropriate form with all the relevant questions required can be found.
In his final comments of the morning Anthony mentioned the case of West Sussex County Council and another v F and others 2018 EWHC 1702 (Fam). The case concerned forced marriage protection orders, whereby an order was refused. In this instance although a marriage was arranged the circumstances did not amount to a forced marriage. The nature of the arrangement was that the marriage would only take place if the supposed victim consented when she reached the legal age to marry.
Anthony discussed his criminal law update further in Part 2 of his presentation. Other cases and changes were mentioned and are available in his speaker notes.
Ruth Hartley, PNLD Legal Adviser, provides an overview of Part 2 of Anthony Edwards’ criminal law update, as presented at our Criminal Law Conference on Thursday 17th October 2019.
Continuing on from Part 1 of the Criminal Law Update, Anthony opened his second presentation by explaining that he would be discussing a number of cases relating to various aspects of criminal law. Anthony commenced his analysis by examining the various defences available.
Firstly, Anthony examined the ‘householders’ defence in the context of self-defence, which permits a person to use a disproportionate amount of force in circumstances that require them to defend themselves against a trespasser in their own home. He noted the case of R v Cheeseman  EWCA Crim149, which confirmed the defence would be available where a person may have initially entered a building lawfully, but then subsequently become a trespasser.
Regarding the defence of entrapment, Anthony confirmed the leading case as being that of R v Looseley  UKHL 53, also endorsed in R v Moore  EWCA 85, where the following five factors were outlined as being of particular relevance:
1. Reasonable suspicion of criminal activity as a legitimate trigger for the police operation.
2. Authorisation and supervision of the operation as a legitimate control mechanism.
3. Necessity and proportionality of the means employed to police particular types of offence.
4. The concepts of ‘unexceptional opportunity’ and causation.
5. Authentication of the evidence.
Anthony noted the more recent case of R v Syed  EWCA Crim 2809, in which a suspected terrorist, who had been communicating with the security services, attempted to invoke the defence of entrapment, arguing that the security services had been leading him to behave in a particular way. However, the evidence was not in his favour as he had initiated contact with officers on the majority of occasions.
Anthony moved on to consider the defences that may be available to a suspect accused of murder. In relation to the defence of ‘loss of control’, this may only be put to the jury for consideration when there is sufficient evidence of the defence. The case of R v Goodwin  EWCA Crim 2287 confirmed that as an additional point, where self-defence is raised by a defendant, this does not necessarily amount to a sufficient evidential basis for the defence of loss of control to then be considered as an alternative.
In relation to the offence of manslaughter, Anthony reviewed the change of law relating to joint enterprise, which was necessitated by the case of R v Jogee  UKSC 8 (which related to murder). The previous position in law had been that when a person committed an offence, a secondary person would be guilty as an accessory if he had foreseen the possibility the first person may act as he did. However, in the case of ‘Jogee’ it was confirmed this principle could no longer be supported and that mere knowledge is not the only issue which must be considered. Instead, the position to be taken requires that the individual assisting in the crime be known as an accessory, and the main perpetrator as the principle. For the accessory of the offence to be liable, there must exist proof of conduct and mens rea of the offence.
Most recently, the issue of joint liability for manslaughter has arisen in the case of R v Tas  EWCA Crim2 603. During deliberations, it was discussed that where an accessory can demonstrate that they left the scene before the principle offender produced a knife, they may be able to escape conviction. This was not the case here as it was within the reasonable foresight of the defendant that a weapon may be produced in the circumstances. Following the cases of ‘Jogee’ and ‘Tas’, the same principles now apply for both murder and manslaughter.
Anthony moved on to discuss recent cases involving convictions for gross negligence manslaughter. Most recently, the case of R v Kuddus  EWCA Crim 837 saw the owner and chef of an Indian restaurant convicted for the death of a customer suffering from a nut allergy who died after consuming food items cooked in nut products, despite notifying the restaurant of the nut allergy upon submitting the order. Whilst the chef had reviewed the order containing the notification, the owner of the restaurant had not had sight of the email and even if he had done so, was not able to read English. The extent of the owner’s liability was explored during the appeal against his conviction, however the court were not entitled to take into account information which could have been available to a relevant person when examining whether there had been a breach of a duty of care. Therefore, the court were only able to prove there had been a serious risk of harm to the victim and not, that there had been an obvious knowledge of the risk of death known by the owner, resulting in his conviction being overturned. The owner was however found guilty of committing health and safety offences.
This was contrasted with the case of Winterton  EWCA 2435, involving the conviction of a quantity surveyor for gross negligence manslaughter, when he had failed to adequately check support mechanisms that he had personally fitted in trenches, resulting in the death of another. In this case, there was an obvious knowledge of risk of death.
Finally in this area, the case of R v Rose (Honey Maria)  EWCA Crim 1168 was discussed, involving an optometrist who failed to spot a fatal eye condition during the examination of a child. The defendant was convicted of manslaughter but on appeal, the judgement was found to be defective due to a fault in the judge’s summing up. The judge had worked through the relevant test regressively, rather than treating the test in a prospective manner meaning that the defendant had been convicted on the basis of information which had not been available to her at the time of the examination, which was incorrect.
The next topic to be discussed by Anthony was section 1(5) of the Modern Slavery Act 2015. Anthony explained that the effect of this provision is hat in circumstances where a victim of slavery appears to have consented to committing criminal acts, they will not be liable where the consent was in fact coerced. This was confirmed in the case of R v Nguyen (T.H.); R v Nguyen (V.H.); R v Tran  EWCA Crim 670, where the jury were directed that ‘a person may consent to perform work without necessarily doing it voluntarily’.
A consideration of the common law offence of false imprisonment was undertaken by Anthony in the context of the case of R v Wilkinson  EWCA Crim 2154, which involved the passenger of a taxi lacking the money to pay a relevant fair. When the driver discovered this, he locked the passenger in the vehicle and drove them back to the starting point of their journey. The driver raised a defence pursuant to section 3 of the Criminal law Act 1967, which allows reasonable force to be used in prevention of crime; he claimed he was preventing the passenger from committing the offence of making off without payment, and as such, he had a reasonable excuse to act as he did. Despite this, it was clarified that a taxi driver is not actually entitled to their fare until a journey is complete and as this particular journey had not been completed, the driver’s argument failed.
Moving on to the area of sexual offences, Anthony referred briefly to the relationship between the offence of rape and the issue of consent. In R (on the application of Monica) v DPP  EWHC 3469 (QB), it was confirmed that under the Sexual Offences Act 2003, the meaning of consent is the same as that which was previously only provided by the common law.
The case confirmed that consent may be vitiated under pressure, coercion or where there has been deception. Deception vitiating the existence of consent occurs when:
1. There has been a lie as to the nature of a sexual act.
2. There has been a lie regarding an individual’s identity.
A consideration of consent and vitiation by identity was undertaken in the case of ‘Monica’, as the matter involved undercover officers who participated in sexual intercourse with the targets of surveillance. The targets failed to establish that their lack of knowledge regarding the officers’ true identities vitiated their consent to sexual relations.
Assange v Swedish Prosecution Authority  EWHC 2849, whilst pre-dating the case of ‘Monica’, considered the issue of vitiated consent in circumstances where there had been a deception regarding the nature of a sexual act. In this case, sexual intercourse had only been agreed on the grounds that a condom would be used, however the condom was removed prior to penetration, which vitiated consent.
Whilst the recent case of R v Melin  EWCA Crim 557 does not concern sexual offending, it was still noted by Anthony to be relevant to a discussion surrounding consent. In this case, a medical practitioner was convicted of grievous bodily harm after administering Botox to a patient under the guise that he was medically trained to do so. Although the administration of such procedures does not require medical training, the defendant was convicted, as the patient explained they would never have consented to the treatment if they had been aware the individual was not medically qualified.
Returning to the remit of sexual offending, Anthony went on to consider the case of R v B and L  EWCA Crim 1439, involving a couple who had sexual intercourse in front of their child. This was the first case to be prosecuted under section 11(1) of the Sexual Offences Act 2003 (engaging in sexual activity in the presence of a child). The fundamental matter to be evidenced in such cases is that the presence of the child was for the purpose of the defendant obtaining sexual gratification. The judge was not prepared to read the circumstances of this case in that manner and their appeal was allowed.
Next, Anthony referred to section 8 of the Misuse of Drugs Act 1971, which provides offences relating to occupiers and managers of premises, who allow certain drug related activities to take place there. For the offence to be made out, the activities must have taken place ‘on’ the premises, and not ‘from’ the premises. In the case of R v McNaught  EWCA Crim 613, it could not be evidenced that the supply had taken place on the premises, but it could be shown that the offer had taken place on the premises. It was therefore open to the jury to convict the defendant in the alternative of permitting premises to be used for offers to supply drugs.
Anthony moved on to consider the offence of fraud by failing to disclose information, pursuant to section 3 of the Fraud Act 2006. The case of R v D  EWCA Crim 209 is a DWP case involving a property owner who initially had an empty property and was therefore entitled to a single person discount in relation to the council tax on her property. After the position changed and the number of occupants increased, the owner failed to notify the council of the change in circumstances and continued to pay council tax at a single person rate. The council pursued a prosecution for fraud, however the offence was not made out as property owners are not under any general legal duty to notify the local authority of the change. Furthermore, as the council had failed to send any documentation to the property owner, asking them to confirm whether there had been any change in their circumstances, the property owner had not falsely represented themselves.
Then highlighted due to its pertinence to officers, was the offence of assaulting an officer in the execution of their duty under section 89 of the Police Act 1996. It is open for individuals to argue they were acting in self-defence when accused of this offence, however the requirement that the force used is reasonable still applies. This principle was reiterated in Dixon (Corey) v CPS  EWHC 3154 (Admin) where it was deemed that biting an officer was not reasonable in the context of the case. Similarly, in Rawlins v CPS  EWHC 2533 (Admin), the defendant demonstrated aggression towards officers in circumstances where no threat was present, meaning it was not open to him to rely on the defence.
To finish his summary, Anthony moved on to the pertinent topic of offensive weapons. In the case of Garry v CPS  EWHC 636 (Admin), the defendant had been found with a butterfly knife in the glove box of his car, which he explained was due to his employment as a gas engineer. The defendant had been found with the knife in a public location on a day he wasn’t working, so he did not have a reasonable excuse for possession of the item, resulting in a conviction of possessing an offensive weapon contrary to section 1(1) of the Crime Prevention Act 1953.
In circumstances where a knife is deemed to be a folding pocket knife for the purpose of section 139(2) of the Criminal Justice Act 1988, a defendant will not be guilty of the offence of having an article with a blade or point in a public place. Sharma v DPP  EWHC 3330 (admin) concerned a knife which folded in to a credit card, however as the knife was not immediately foldable and could not just be ‘popped’ back in to place, the knife in this case did not come under the relevant exclusion.
In R v D  EWCA Crim 45, it was clarified that a cut throat razor found in possession of a barber looking for work could be distinguished from a pocket knife, given both items have distinct characteristics; the item was a razor, not a knife.
To finish his presentation, Anthony referenced the case of Veysey & others  EWCA Crim 1332, which involved cups of urine being thrown on prison officers. The defendants were prosecuted under the offence of administering a noxious substance. The definition of a noxious substance is something that is ‘unwholesome’, which urine was deemed to be in the circumstances.
The information in the article is a brief overview of the main notable points mentioned during the second part of Anthony’s presentation. Other cases and changes were mentioned and are available in his speaker notes.
Download Part 1 (PDF 186KB)
Download Part 2 (PDF 213KB)
Download Anthony's speaker notes (PDF 340KB)
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Thursday 15th October 2020