Westlaw criminal cases update

The Westlaw case analysis page provides everything you need to know about a case in one place, including law report citations, a case digest, case status, graphical history, and links to the full text transcript, relevant cases, legislation, books and journal articles. The following Westlaw content has been selected for Police Professional by the editors of Criminal Law Week. Commentary is provided by experts from the Criminal Law Week Commentary Board.

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Chief Constable of Kent Police v Carter

Divisional Court

July 5, 2022

[2022] EWHC 1972 (Admin), CLW/22/32/9

Summary: A magistrates’ court had erred in law in refusing to make a sexual risk order pursuant the Sexual Offences Act 2003 s.122A on the basis that the Chief Constable had failed to prove that the defendant was guilty of a criminal offence. The requirement in s.122A that a defendant had committed “an act of a sexual nature” did not necessarily mean a criminal offence.

The Chief Constable of Kent Police appealed by way of case stated against a magistrates’ court’s refusal to grant a sexual risk order (SRO) against the respondent under the Sexual Offences Act 2003 s.122A.

The appellant had brought the application on the basis that it was believed that the respondent had an explicit interest in corporal punishment for sexual gratification, that he favoured vulnerable victims including children, and that he had been dressing boys up in school uniforms before caning and sexually assaulting them. The evidence before the court related to various reports of sexualised behaviour by the respondent, including six individuals who alleged that the respondent had spanked them with a cane. One of the men had said that he was then sexually assaulted. The respondent’s flat and computer were searched. A cane was found, along with a picture of one of the alleged victims and pictures of teenaged boys showing their bare bottoms. The appellant also relied on the fact that the respondent had previously been cautioned for spanking a young boy. The respondent denied the accusations but admitted the caution. The magistrates declined to grant the SRO on the basis that they were not satisfied to the criminal standard that the respondent had carried out an act of a sexual nature. They also indicated that they had not found the respondent guilty of a criminal offence. They did not expand on that reasoning.

The questions for the case stated were whether:

(1) the magistrates had erred in law in finding that the respondent had to be found guilty of a criminal offence before an SRO could be granted;

(2) the magistrates’ conclusion that they could not be sure that the defendant had committed an act of a sexual nature was reasonable; and

(3) the magistrates had failed to consider that the legislation was preventative rather than punitive.

Held

Appeal allowed.

Legal framework – Pursuant to s.122A, the court could make an SRO only if it was satisfied that the defendant had done “an act of a sexual nature” as a result of which it was necessary to make such an order for the purpose of protecting the public from harm, or protecting children or vulnerable adults from the defendant outside the UK. Such an order would prohibit the defendant from doing anything described in the order, for a period of not less than two years. There was no definition in the 2003 Act of “an act of a sexual nature”. The statutory guidance stated that it depended on the individual circumstances, behaviour and context, and covered a broad range of behaviour. It did not necessarily mean a sexual offence. An application for an SRO was a civil application, but the court had to apply the criminal standard as to whether the defendant had carried out a sexual act, R. (on the application of McCann) v Manchester Crown Court [2002] UKHL 39, [2003] 1 A.C. 787, [2002] 10 WLUK 472 followed. If that was satisfied, the question of whether an order was “necessary” to protect the public from harm was to be considered on the balance of probabilities. Hearsay was admissible.

Whether the respondent had to be found guilty of a criminal offence – The magistrates had made a clear error of law. To establish that an SRO was necessary under s.122A, an applicant did not have to prove that a defendant had committed a sexual offence. If that was the case, there would be no point to the SRO. It was also contrary to the wording of the legislation.

Reasonableness of decision – The decision had not been reasonable. The magistrates had given no explanation why they had refused the application. A reasonable decision had to be capable of being analysed, but there had been no reasons given at all. The respondent had admitted being cautioned for spanking a boy in the past. Further, although he denied behaving in the way alleged, the magistrates had before them strikingly similar evidence from six different individuals, who did not know each other and who could not have colluded. The respondent maintained it was just rumours and innuendo, but that was a misrepresentation of the evidence, which consisted of detailed account of the complaints made. Further, the respondent’s explanation as to how the incriminating material had been found at his home and on his computer appeared inadequate. There had been no explanation as to how all of that evidence had been put to one side in the magistrates’ finding that the appellant had failed to prove that the respondent had committed an act of a sexual nature.

Whether the legislation was preventative rather than punitive – The purpose of the legislation was not a matter for the court, but the reference to punishment suggested that the magistrates had wrongly believed that they had to find that a criminal act had occurred.

Disposal – The matter should be remitted to a different magistrates’ court to consider whether an SRO was necessary, to be determined on the balance of probabilities.

R. v Olive and others

Court of Appeal (Criminal Division)

August 10, 2022

[2022] EWCA Crim 1141, CLW/22/33/1

Summary: A conviction for murder, based on circumstantial evidence together with evidence of gunshot residue in the offender’s car, was safe. The fact that the gunshot residue might have been present as a result of contamination went to the weight rather than the admissibility of the evidence, and the judge had been entitled to leave it before the jury.

The appellant (O) appealed against her conviction for murder on three grounds and made a renewed application for leave to argue a further seven. The applicants renewed their applications for leave to appeal against their convictions for the same offence.

O was the mother of the two applicants. The Crown’s case was that the applicants and two others had been involved in the shooting and killing of the victim, and that they had been driven to and from the scene by O.

A spent shotgun cartridge containing gunshot residue (GSR) was recovered from the scene and two particles of GSR, one of which was the same type as that from the cartridge case, were found in O’s car. O denied any involvement in the offence, and an expert instructed on her behalf considered it likely that the GSR in her car resulted from contamination from firearms officers. The Crown’s expert conceded that there was an equal likelihood that the matching particle came from one of the people involved in the shooting or from contamination. She seemed to suggest that either of those possibilities was more likely than it having got there by chance, and she made it clear that she could not assist the jury in deciding which of the three possibilities was likely to be correct. The judge rejected an application to exclude the GSR evidence. He held that the possibility of contamination went to weight rather than admissibility, and he directed the jury that if they accepted the evidence of the Crown’s expert then, at most, the GSR evidence was circumstantial evidence consistent with the presence in the car of someone connected with the shooting.

O argued that the judge had (1) wrongly allowed the GSR evidence to be admitted; (2) allowed the Crown’s expert to give evidence which inflated the significance of the GSR and placed insufficient weight on possible contamination; (3) failed properly to sum up the GSR evidence or to direct the jury on relevant matters, including the failings of the Crown’s expert.

Held

Appeal dismissed, applications refused.

Admissibility of GSR evidence – The judge had been right to conclude that the GSR evidence was admissible. It was not unfair to leave that evidence before the jury, and it was for the judge to direct them on how to approach it. Although it was not probative on its own, it could be aggregated with other circumstantial evidence to support the conclusion that the second GSR particle came from someone involved in the shooting (see paras 48-49 of judgment).

Crown’s expert – O’s second ground of appeal was an eloquent and detailed disagreement with the Crown’s expert. It identified no error of law or misdirection on the part of the judge and was therefore to be rejected (para.55).

Summing-up – When summing up, judges were not required to repeat every point made by the defence; what mattered was that the summing-up was fair, balanced and assisted the jury. In the instant case, the summing-up was adequate, R. v Gjikokaj (Lundrim) [2014] EWCA Crim 386, [2014] 3 WLUK 216 followed. The judge had made it clear that if the members of the jury thought that the GSR might have got into the car by chance or through contamination, then they were to disregard the GSR evidence. He also directed them that the GSR on its own proved nothing because it was at such a low level, and whether it could be added to the case against O depended on their view of the other evidence. There was enough evidence upon which the jury could be sure that O’s car had been used in the shooting, and they were entitled to add the GSR evidence to that. Whether they did so could not be known but, either way, the admission of the GSR evidence did not undermine the safety of O’s conviction (paras 56, 63).

Renewed applications for leave to appeal – The seven further grounds on which O sought leave to argue related to police questioning of her after the shooting, and the judge’s rejection of her submission of no case to answer, his handling of the discharge of a juror, his failure to give a modified good character direction, his allowing the Crown to rely on the previous convictions of one of the applicants as evidence against her, and his giving a Lucas direction. None of those grounds were arguable and O’s conviction was safe (paras 64-93). The applicants sought leave to argue that the judge had erred in admitting both the GSR evidence and the previous convictions of the second applicant. Those grounds were unarguable and it could not be said that their convictions were unsafe (paras 94-106).

CLW comment

The argument in this case appears to have focused on the probative value of the GSR findings. Reference to any assessment of the reliability of the expert evidence in accordance with Part 19 of the Criminal Procedure Rules 2020 (SI 2020/759) (CLW/20/28/25) and the associated Criminal Practice Direction (CPD V Evidence 19A) is conspicuously absent. As the author has previously noted, the reliability factors contained in CrimPD 19A do not seem to be invoked in support of applications to exclude unreliable expert evidence in practice (see CLW/19/11/29).

The prosecution alleged that the first appellant had driven her four male co-defendants (three of whom were her sons) to and from the scene of the shooting in her Vauxhall Mokka vehicle. Two days later, her home was searched. A scenes of crime officer, DC Coe, asked whether any firearms officers had already attended the scene because “it made a difference to the way he performed his tasks” (at [39]). He was incorrectly told that they had not. It is well established – and was accepted by the court (at [37]) – that firearms officers will often have GSR on their hands and clothing as a result of firing and handling their weapons and from their work environment (see The Royal Society’s Primer, Understanding Ballistics: A Primer for Courts 2021 – hereafter Ballistics Primer – p.45). DC Coe was told that no firearms officers had been present. Wearing a fleece jacket rather than a body suit, DC Coe then leaned inside the vehicle to take a photograph. The judgment implies that DC Coe also entered the house, although it does not specify whether that was before or after he entered the vehicle. In any event, the following day, while wearing the same fleece jacket, he recovered two characteristic GSR particles (ie, particles that were most likely to be associated with the discharge of a firearm – see Ballistics Primer, p.68) from the rear seat of the vehicle using a tape-lifting technique. A control sample, when tested, was found to be contaminated with a characteristic GSR particle. It was accepted (at [40]) that DC Coe must have contaminated the sample before carrying out the tape-lifting procedure.

There appear to have been significant problems with disclosure and a first trial was aborted.

At the second trial, body-worn footage was produced showing that 12 firearms officers had attended the first appellant’s home before DC Coe. They walked past the Mokka and went into the property, where they carried out a room-to-room search. In addition, the footage showed one firearms officer leaning on the bonnet of the Mokka and others standing near it, one touching the outside of the vehicle while shining a torch through the window.

The first appellant’s expert had been of the opinion from the outset (at [42]) that contamination of the control sample meant that an outside source of GSR had been brought to the car and, consequently, the GSR findings should not be relied upon. Following disclosure that firearms officers had attended the first appellant’s home and had been in contact with the vehicle, she concluded (at [42]) that it was “likely” that the two recovered particles were present as a result of their involvement.

The prosecution expert noted (at [31]) that two particles was a “low level” of GSR. In oral evidence, she appears to have considered three scenarios for the presence of the particles:

1. They were deposited in the vehicle by a person who was involved in the shooting;
2. They came to be in the vehicle as a result of the presence of firearms officers; and
3. They came to be in the vehicle by chance.

She initially appears to have placed the likelihood of (2) “at the same level” as (3). However, in cross-examination she stated that the likelihood of (1) was the same as (2), and (2) was “a greater possibility” than (3). The Court of Appeal interpreted her evidence as meaning that she regarded scenarios (1) and (2) as equally likely, and each of them as more likely than (3). The court added that “whatever its precise meaning she made it clear that she could not assist the jury in deciding which (if any) of the three possibilities was likely to be correct” (emphasis added, at [44]).

The first appellant’s expert was critical of the approach taken by the prosecution expert. She stated that “it is for the expert to examine two propositions… The choice is a binary one… It is not acceptable to consider three propositions” (at [54]). This appears to accord with the Forensic Science Regulator’s Codes of Practice and Conduct (FSR-C-118) and is the method explained in The Use of Statistics in Legal Proceedings: A Primer for the Courts (The Royal Society, 2020). The Court of Appeal declined to consider this argument, stating that “it was not incumbent upon the judge to criticise [the prosecution expert] for her approach (which, we note, was the same as that taken by the expert in Gjikokaj without complaint)” (at [54]).

It is submitted that reliance on Gjikokaj was misplaced, not least because that case was decided before the Criminal Practice Directions in force at the time were amended by the Practice Direction (Criminal Proceedings: Various Changes), CLW/14/28/3, [2014] EWCA Crim 1569, [2014] 1 W.L.R. 3001, Lord Thomas CJ, to incorporate the Law Commission’s reliability factors, several of which seem to be relevant here.

First, the data upon which the prosecution expert relied was obtained by methods that gave rise to contamination of the control sample (see CrimPD 19A.5(a)).

Secondly, the information available to the expert when she prepared her written report was incomplete, as she was not told that firearms officers had been present and had been in the vicinity of, and in contact with, the vehicle (see CrimPD 19A.5(f)). Her evidence at trial once she was aware of that information appears to have become confused. For example, at one stage she gave evidence that was “at odds with her earlier evidence” and, in relation to her opinion as to likelihood ratios, the court appears to acknowledge that the “precise meaning” of her evidence was unclear, which must surely have undermined its reliability.

Thirdly, the first appellant’s expert suggested that the prosecution expert had not taken a valid approach to the development of her evaluative opinion, as she sought to compare three propositions rather than just two. Where an expert’s methods do not follow established practice, the court should consider whether the reason for the divergence has been properly explained (see CrimPD 19A.5(h)). In addition, CrimPD 19A.6 provides that “the court should be astute to identify potential flaws in [an expert’s] opinion, such as: …(d) relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case”.

Both the method by which the GSR was obtained and the method by which its significance was evaluated appear to potentially fall into this category, and it is submitted that it was indeed incumbent upon the trial judge to explore these issues.

Even if it would not have led to the exclusion of the prosecution expert’s evidence, a focus on reliability might have led to greater clarity as to what she was actually saying about the likelihood of the various scenarios, as well as the basis for her opinion. The apparent failure to have any regard to CrimPD 19A suggests that the incorporation of the Law Commission’s reliability factors has not resulted in the “more rigorous approach” to expert evidence that was predicted at the time of their introduction (R. v H, CLW/14/40/1, [2014] EWCA Crim 1555, [2014] Crim.L.R. 905, CA, at [44]).

The amalgamation of the GSR evidence with the (other) circumstantial evidence was also potentially problematic. If, on the basis of other evidence, the jury thought it likely that persons connected with the shooting had been in the car, that increased the likelihood that the GSR came from them rather than from the firearms officers. To then say that the presence of GSR increased the likelihood that those involved in the shooting were in the vehicle would involve circular reasoning. Given the potential for confusion as to the use that could be made of the GSR evidence, it was surely unduly optimistic to suggest that there was no risk of prejudice in admitting it.

Natalie Wortley

Att.-Gen.’s Reference (No. 1 of 2022)

Court of Appeal (Criminal Division)

September 28, 2022

[2022] EWCA Crim 1259, CLW/22/36/3

Summary: Criminal damage did not automatically fall within the category of offences identified in James v DPP [2015] EWHC 3296 (Admin), [2016] 1 W.L.R. 2118, [2015] 11 WLUK 313 and DPP v Cuciurean [2022] EWHC 736 (Admin), [2022] 3 W.L.R. 446, [2022] 3 WLUK 437 where proof of the relevant ingredients of the offence was sufficient to justify any conviction as a proportionate interference with any rights engaged under ECHR art.9, art.10 and art.11, without the need for a fact-specific proportionality assessment. However, the court outlined the relevant considerations in cases involving criminal damage caused during protests and concluded that the circumstances in which a proportionality assessment would be needed were very limited.

The Attorney General referred questions of law to the Court of Appeal, arising from a trial in which four protestors had been acquitted by a jury of causing criminal damage to a statue, contrary to the Criminal Damage Act 1971 s.1(1).

The statue was a listed monument, owned by Bristol City Council. It portrayed a wealthy English merchant and was controversial because he had profited from participating in the slave trade. During a peaceful protest prompted by the Black Lives Matter movement, a group of people had used ropes to topple the statue and pull it to the ground before rolling it to the city harbour and heaving it into the water. The statue had been damaged.

The reference concerned the question of whether criminal damage of property during protest fell outside the protection of the ECHR.

The questions referred were:

1. Did criminal damage fall within that category of offences, identified in James v DPP [2015] EWHC 3296 (Admin), [2016] 1 W.L.R. 2118, [2015] 11 WLUK 313 and DPP v Cuciurean [2022] EWHC 736 (Admin), [2022] 3 W.L.R. 446, [2022] 3 WLUK 437, where conviction for the offence was, intrinsically and without the need for a separate consideration of proportionality in individual cases, a justified and proportionate interference with any rights engaged under ECHR art.9, art.10 and art.11?
2. If not, what principles should Crown Court judges apply when determining whether the qualified rights found in those articles were engaged by the potential conviction of defendants purporting to be carrying out acts of protest?
3. If those rights were engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

Held

Judgment accordingly.

Principles emerging from case law – The decision in DPP v Ziegler [2021] UKSC 23, [2022] A.C. 408, [2021] 6 WLUK 347 did not lay down any broad principle that a conviction for any offence arising from a peaceful protest involved a restriction upon the exercise of rights under articles 9, 10 or 11 and that the prosecution consequently had to prove that the conviction would be justified and proportionate, through a fact-sensitive assessment, Ziegler explained, Cuciurean, James and Bauer v DPP [2013] EWHC 634 (Admin), [2013] 1 W.L.R. 3617, [2013] 3 WLUK 609 applied (see paras 40, 42, 46 of judgment).

The 1971 Act had been enacted many years before the Human Rights Act 1998 and Parliament had not considered ECHR rights or proportionality when enacting the offence of criminal damage. However, that did not make it inappropriate to apply the principles emerging from James and Cuciurean. Nor did Strasbourg case law support the proposition that a general criminal measure might not, in itself, strike a proportionality balance. On the contrary, a criminal offence might comprise ingredients the proof of which was sufficient to render a conviction proportionate to any interference with rights under articles 9, 10 and 11. A fact-sensitive proportionality assessment was unnecessary for a person to be convicted of such an offence, Animal Defenders International v United Kingdom (48876/08) [2013] E.M.L.R. 28, [2013] 4 WLUK 468 considered, R. (on the application of SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] A.C. 223, [2021] 7 WLUK 107 and Handzhiyski v Bulgaria (10783/14) (2021) 73 E.H.R.R. 15, [2021] 4 WLUK 620 applied. However, where the court decided that proof of the ingredients of a particular offence did not in itself demonstrate proportionality, a fact-sensitive assessment would generally be required unless that would be inconsistent with the statutory language governing the offence, Perincek v Switzerland (27510/08) (2016) 63 E.H.R.R. 6, [2015] 10 WLUK 413 applied (paras 57-62, 68, 75, 78).

Article 11 only protected the right to “peaceful assembly”. The nature of the conduct leading to destruction or damage of a public monument might often not properly be described as “peaceful” and so would fall outside the protection of the ECHR. In any event, measures criminalising the destruction of or damage to such a statue or monument were proportionate. Articles 9, 10 and 11 did not protect conduct during a protest which caused damage to property from prosecution and conviction, regardless of the nature or extent of the damage caused. Equally, the Strasbourg jurisprudence did not support the proposition that the protection of the ECHR was lost when any damage was inflicted on property during a protest, however minor. The approach of the Strasbourg court was fact and context-specific (paras 80, 87-88, 110).

Answer to question 1 – Criminal damage did not automatically fall within the category of offences identified in James and Cuciurean where proof of the relevant ingredients of the offence was sufficient to justify any conviction as a proportionate interference with any rights engaged under articles 9, 10 and 11, without the need for a fact-specific proportionality assessment. Prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the ECHR either because the conduct in question was violent or not peaceful, or because prosecution and conviction would clearly be proportionate. The circumstances in which a proportionality assessment would be needed were very limited (paras 114-116).

Answer to questions 2 and 3 – The ECHR did not protect those who caused criminal damage during protest which was violent or not peaceful or those who inflicted damage violently or not peacefully. Articles 9, 10 and 11 were not engaged in those circumstances and no question of proportionality arose. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which was “peaceful”, could not be disproportionate in ECHR terms. Given the nature of cases that were heard in the Crown Court it was inevitable that, for one or both of those reasons, the issue of proportionality should not be left to the jury (para.120).

It was possible that cases involving minor or trivial damage to property might arise in the magistrates’ court. In those circumstances, the Strasbourg case law suggested that conviction might not be a proportionate response in the context of protest.

Whatever might be the position with public property, the ECHR could not conceivably be used to protect from prosecution and conviction those who damaged private property to any degree other than trivial. It was essential that prosecutorial discretion on whether to proceed to trial should be exercised carefully, applying the Code for Crown Prosecutors in the context of the principles governing articles 9, 10 and 11 with a clear eye on the proportionality of prosecution and conviction (para.121).

CLW comment

The Attorney General sought the opinion of the Court of Appeal on three questions of law that arose in a trial in Bristol Crown Court of four defendant protestors acquitted of criminal damage on 7 June 2020 to a statue of Edward Colston (1636 to 1721), philanthropist, and wealthy slave trader. In 1977 it was designated as a Grade II listed structure. The inscription on its plaque described him as “one of the most virtuous and wise sons” of Bristol. On June 7, 2020, a march attended by about 10,000 was prompted by the Black Lives Matter movement. The majority of those peacefully protesting had passed the Colston statue but, later in the day, a large number of people congregated around the statue, including three of the four defendants. As is now well-known from the media footage, the statue was mounted on a pedestal that was atop a stone base (6m above ground) and ropes were used to topple it to the ground. It was later rolled into the water. Significant damage was done to the bronze statute.

The main question for the court was the extent to which the European Convention effectively allows the use of violence against property during protest, thereby rendering lawful criminal damage to property that would otherwise be a crime. In other words, was the damage done to the statue lawful because it was a proportionate exercise of the right to protest (as protected by Arts 10 and 11)? The reference did not have any bearing on the acquittals. The prosecution argument at trial, simply put, was that the conduct was not peaceful and so was not protected by the convention. The trial judge appeared not to rule on the question, but decided that if there were an interference with convention rights the jury could consider proportionality, and thus the issue was left to the jury.

At the Court of Appeal, the defendants sought to argue that Cuciurean was wrong as to the ambit of Zeigler (as to which, see also the commentary to the former in CLW by Raj Chada). The instant court rejected the defendant’s argument and said (at [42]): “We adhere to the conclusion at [89(1)] that Zeigler ‘does not lay down any principle that for all offences arising out of ‘non-violent’ protest the prosecution has to prove that a conviction would be proportionate to the defendant’s rights under articles 10 and 11 of’ the Convention, for the reasons given in the judgment.” The court also rejected an argument that the Strasbourg case law supports the proposition that a general criminal measure may not, in itself, strike a proportionality balance. It found that a criminal offence may comprise ingredients, the proof of which is sufficient to render a conviction proportionate to any interference with rights under Articles 9, 10 and 11 and that “a fact-sensitive proportionality assessment is unnecessary for a person to be convicted of such an offence”. (see [78]).

On the question of criminal damage itself, the court concluded that prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the convention “either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate” (at [115]). By contrast, scrawling a message on a pavement using water soluble paint might technically be sufficient to sustain a charge of criminal damage, but to prosecute or convict for doing so as part of a political protest might well be a disproportionate response. So, criminal damage does not automatically fall within the category of offences in James and in Cuciurean whereby proof of the relevant ingredients of the offence is sufficient to justify any conviction as a proportionate interference with any rights engaged under Articles 9, 10 and 11, without the need for a fact-specific proportionality assessment in individual cases. However, the court underlined (at [116]) that the circumstances in which such as assessment would be required “are very limited”. It seems, therefore, that if lasting damage is done to a statue in protest, however abhorrent the statue’s symbolism, those who inflict it will face prosecution and conviction.

Maya Sikand KC