Westlaw criminal cases update
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R. v Debonsu
Court of Appeal (Criminal Division)
23 July 2025
[2025] EWCA Crim 959, CLW/25/46/1
Summary: A trial judge’s directions to a jury regarding admissions made during phone calls made from prison by a defendant accused of murder by joint enterprise had been acceptable and adequate. The defendant could not rely on the Police and Criminal Evidence Act 1984 Pt VIII s.76(2)(b) which excluded confessions obtained by improper means as there was no evidence that he had been influenced to make admissions by an external source of authority which was likely to render any confession unreliable.
The appellant (D) appealed against his conviction on two counts of murder.
D had been a passenger in a car with four others which had hit the victim (Y). The four others had then left the car and attacked Y with knives. During the attack, one of the attackers (X) was also stabbed. D had remained in the car. Y and X both died of their injuries. The prosecution case was that D had intentionally participated in a joint enterprise to murder. It said that D and the others were gang members who had gone into rival territory armed and ready stab any rival gang member. His defence at trial was that he had been at the scene but had not understood that an attack had been planned. The prosecution relied on recordings of phone calls D had made to friends while he was in detention awaiting trial. During them he said that he had been prepared to go and attack a member of the opposing gang, that he had been armed, that Y’s stabbing had been the desired outcome, and that he had not physically joined in only because the others had already stabbed Y. D submitted to the trial judge that the jury should be directed that if it concluded that what he said might have been obtained as a result of things said or done which were likely to render such statements unreliable, it should disregard them. The judge rejected that submission and directed the jury that the transcript of the calls recorded what D said about himself and the others, and that their reliability and truthfulness was a matter for the jury. He said that D’s own words were to be considered alongside all the other evidence. The judge noted that D had suggested that what he had said in the calls had been influenced by his desire to protect his street credibility and to avoid being thought of as weak or a snitch.
The judge directed the jury to consider that explanation and decide whether it led it to regard what D had said as being unreliable, and if it was reliable, whether what he said was true. The jury convicted D of both murders.
D submitted that the judge had failed to direct the jury adequately regarding its approach to confession evidence in the prison calls because he failed to identify the correct test which was not whether what was said was reliable and true, but whether the statements had been obtained in consequence of anything said or done which was likely to render admissions unreliable.
Held
Appeal dismissed.
Legal framework regarding confessions – The Police and Criminal Evidence Act 1984 Pt VIII s.76(2)(b) provided that confessions were inadmissible if they had or might have been obtained in consequence of anything said or done which was likely to render them unreliable. That was also known as having been obtained by improper means. The transcripts had been admitted mostly by agreement and D’s appeal turned on whether anything had been said or done which was likely to render the confessions unreliable. The words “said or done” did not include anything said or done by the person making the confession and was limited to something external to that person and to something which was likely to have had some influence on him, R. v Goldenberg (Meir) (1989) 88 Cr. App. R. 285, [1988] 5 WLUK 173 considered. A jury should be directed to disregard a confession if it considered that it had been obtained in consequence of anything said or done which was likely to render it unreliable, R. v Mushtaq (Ashfaq Ahmed) [2005] UKHL 25, [2005] 1 W.L.R. 1513, [2005] 4 WLUK 446 followed. The Mushtaq direction concerned improper means deployed by the police but could be required where the improper means had come from another authority figure (see paras 26-28, 33, 36 of judgment).
Judge’s direction – D’s position was that if the jury found that the admissions had been obtained by improper means, it was required to disregard them even if it was sure that they were true. There was no suggestion of police or any other authority figure pressurising D. He said that he made admissions in response to what his friends had said to him. To lie to retain street credibility was not to lie in consequence of any form of improper treatment. It was to lie as a matter of free will, not for external reasons. There was no evidence that D had lied out of fear because of an allegation that he was a snitch. There was no evidence of anything said or done, which was external to D, which was even arguably likely to render unreliable any confession made by him in consequence of it. The judge’s directions had been perfectly acceptable and adequate (paras 39-40, 44-48).
Safety of conviction – The confession evidence had been obtained while D was on remand. The police already had a case against him which was strong enough to justify arrest and charge. The main evidence was CCTV footage. D’s credibility and inconsistent accounts had been clearly in issue from the outset. The outcome would have been no different if the jury had, on the judge’s direction, concluded that the confessions were or might have been made in consequence of something said or done which was likely to render them unreliable with the result that they had to be disregarded. The convictions were safe (paras 49-50, 52, 54-55).
CLW comment
Although the result of this appeal is unobjectionable, it was a missed opportunity to clarify a confused area of law. The confusion stems from Lord Rodger’s judgment in Mushtaq. The appeal and the certified question in that case were concerned exclusively with oppression under section 76(2)(a) of the 1984 Act. Instead of confining himself to that provision, Lord Rodger treated both section 76(2)(a) and (b) as dealing with “oppression or any other improper means” (at [30]). Section 76(2)(b) says nothing about “improper means”. It is concerned with the risk of eliciting an unreliable confession “in the circumstances existing at the time”. Such a risk can arise from words or actions that are neither improper nor those of the police, as the present case illustrates.
The ratio of Mushtaq was that the jury must not “take into account a confession which they considered was, or might have been, obtained by oppression or any other improper means in violation of [the] right against self-incrimination” (at [53]), because to do so would infringe Article 6 of the European Convention on Human Rights. While it does not specifically address this point, the Court of Appeal recognises that the issue that concerned the House of Lords is far removed from the situation where the appellant’s girlfriend, and the girlfriend of the fellow gang-member who died of his injuries, told the appellant that he was being called a “snitch” or a “pussy” because he had not joined in the attack on the other victim.
It was at least arguable that this was something said that was likely, in the circumstances, to render unreliable any ‘confession’ (ie, any statement adverse to his case) made in response, because it gave the appellant an incentive to talk up his part in the attack. Rather than press this point as a ground for excluding the evidence under section 76(2)(b), the defence accepted it as admissible but later asked for a Mushtaq direction. As the court acknowledges at [41], such a belated invocation of section 76 might be justified in some cases, and in this case the prosecution did not complain that it caused them any prejudice.
It would be hard to argue that the principle underlying Mushtaq has any application in this case. Unfortunately, the court does not resolve the confusion in respect of that principle, but instead draws a distinction between misconduct by “persons in authority” and others. As McKeown points out in his Criminal Law Review commentary to this case, if leading members of the gang had been shown to have threatened the appellant, they would arguably be “persons in authority”. But they would not be investigators whose misconduct undermined his privilege against self-incrimination (as the defendant’s employer’s false promise not to prosecute did in Roberts). This was the principled ground on which it was right to deny the appellant a Mushtaq direction, but regrettably the Court of Appeal failed to identify it.
Tony Ward
R. v Patel (Darshan)
Court of Appeal (Criminal Division)
5 September 2025
[2025] EWCA Crim 1149, CLW/26/03/2
Summary: An offender’s appeal against his conviction, having entered guilty pleas, for offences relating to his importation of controlled drugs, namely herbal cannabis, on the basis that it was not a controlled drug and that it was not unlawful to import it, relying on the decision in R. v Margiotta (Eleanor) [2023] EWCA Crim 759, [2023] 2 Cr. App. R. 13, [2023] 6 WLUK 431, was dismissed. The offender’s reliance on Margiotta depended on key facts in that case regarding the Delta-9-Tetrahydrocannabinol (THC) quantity levels of the imported material which were not applicable to his case. The guilty pleas entered by the offender on a particular basis were also not equivocal; he had chosen not to pursue any potential defence and had suffered no clear injustice.
The appellant (P) appealed against his conviction for three offences of fraudulent evasion of the prohibition on importation of controlled drugs and one offence of possession of cannabis with intent to supply.
P had pleaded guilty to the offences and was sentenced to 14 months’ imprisonment, suspended for two years.
In August 2020, P completed an online form informing Wiltshire Police that he was starting a business supplying cannabidiol (CBD) hemp and oil products with either a zero or low content of Delta-9-Tetrahydrocannabinol (THC). He asserted that all his stock was “fully within EU laws with the content of each product having less than 0.2% THC”. He invited advice on products he could not stock but did not receive a reply and began to operate a mail order business via a website.
In October 2020, a customs officer intercepted a package from Switzerland sent to P’s business containing herbal material which tested positive for THC.
In November 2020, during the ensuing police inquiry, a police officer replied to P’s August email, advising that cannabis, and products containing the THC cannabinoid, were Class B controlled drugs under the Misuse of Drugs Act 1971. The officer quoted Home Office guidance that licences issued for the cultivation of cannabis plants with a low THC content for the production of hemp fibre for industrial purposes, or for the obtaining of seeds to make oil, did not apply to the leaves and flowers which were controlled parts of the plant.
The officer warned P that his website appeared to be selling flowers and hash covered by the 1971 Act and was therefore illegal, and that continuing such sales would render him liable for prosecution.
P continued to import and sell CBD products and was arrested in January 2021. When interviewed, he asserted that the products were “UK compliant”. The quantity of herbal cannabis seized in respect of each of the importation offences exceeded 1kg. On one count, testing indicated a THC count of 1%, the remaining counts had levels of less than 1%. P initially pleaded not guilty to all counts. However, in November 2021, he indicated he was willing to plead guilty on a particular basis and sought a Goodyear indication regarding sentence. The basis of plea, including the assertion that he had initially believed his actions to be legal, was accepted by the prosecution and the judge indicated a total sentence not exceeding two years’ suspended imprisonment. P now appealed against the convictions.
Held
Appeal dismissed.
Was the relevant material a controlled drug? P submitted that, having regard to R. v Margiotta (Eleanor) [2023] EWCA Crim 759, [2023] 2 Cr. App. R. 13, [2023] 6 WLUK 431, the herbal material was not a controlled drug and it was not unlawful to import it. He argued that it was for the Crown to prove either that the imported material fell outside TFEU art.34, or that the restrictions in the 1971 Act were justified under art.36. He contended that the Crown had failed to adduce evidence proving that the THC quantity of the imported material was more than 0.2%, that he had a right to import low-THC cannabis and that the blanket prohibition in the 1971 Act could not replace the balancing and proportionality exercise required by art.36. The Crown rightly argued that art.34 and art.36 ceased to have direct effect in this jurisdiction after 31 December 2020. A key feature of the facts found in Margiotta was that the THC content of the plant material concerned was less than 0.2%. It followed that, on the court’s conclusions regarding the applicable law, the defendants in that case had not been shown to have committed any crime. However, in this case, P could not provide any admissible evidence supporting his assertion that the imported plant material had a THC content of less than 0.2%, and the prosecution had conceded only that the THC content was less than 1%. Because of P’s guilty pleas, no further evidence had been adduced by either party and no application to adduce fresh evidence had been made to this court. P’s reliance on Margiotta depended on a THC level which was proved in that case, but not in his case, Margiotta distinguished (see paras 61-65 of judgment).
Equivocality of guilty pleas – The guilty pleas were not equivocal. Having been advised, P had chosen to abandon any possible defence and to enter guilty pleas. Being sentenced on a particular basis did not render his pleas equivocal. Neither his legal representatives nor the judge were under any obligation to treat the basis of plea as a reason for not accepting the guilty pleas and, importantly, P had not wanted them to. His submission that he should have been given more encouraging advice regarding the strength of potential defences open to him was also rejected. He could not properly have been advised that either defence would probably succeed, and his reasons for wanting to avoid a trial would still have existed. He had therefore suffered no clear injustice, R. v Tredget (Peter) [2022] EWCA Crim 108, [2022] 4 W.L.R. 62, [2022] 2 WLUK 93 and R. v Boal (Francis Steven) [1992] Q.B. 591, [1992] 3 WLUK 199 followed (paras 74-75).
Breach of ECHR art.7 rights – P argued that the law relating to cannabis products containing a low level of THC was not sufficiently clear, and that criminalisation of his conduct therefore breached his rights under ECHR art.7. However, even at the time of his guilty pleas, the law was clear. The importation, possession and supply of cannabis was prohibited by the 1971 Act. The Act defined what cannabis was, in terms which did not depend on THC being present at a particular level. P was expressly warned that he appeared to be selling products covered by the Act. Instead of seeking further legal advice, commissioning specific testing of the imported material or applying for a licence, he had carried on his business. He did not proceed on the basis that the law was uncertain; he decided that the law was in his favour and had dismissed the police officer’s advice (para.76).
R. v Webb and another
Court of Appeal (Criminal Division)
19 November 2025
[2025] EWCA Crim 1491, CLW/26/02/2 & 3
Summary: The court discussed the definition of ‘slavery’ in the Modern Slavery Act 2015 Pt 1 s.1(1)(a) and suggested jury directions to be given when slavery was at issue.
The appellants appealed against their convictions for holding a person in slavery or servitude contrary to the Modern Slavery Act 2015 Pt 1 s.1(1)(a).
The complainant needed substantial physical care and assistance. The first appellant had been employed as the complainant’s carer and the second appellant was the complainant’s wife. The prosecution case was that the appellants, who were having an affair, coerced and controlled the complainant over four years. It alleged that, although the complainant had not provided work for the appellants, they had coerced him into enabling the carer to keep his job when he was failing in his duties and behaving abusively, and into providing a home to both appellants and resources to the wife. The appellants denied any mistreatment.
The judge defined servitude as “one person’s obligation to provide services to another, an obligation that is imposed by the use of coercion”. He directed the jury that, although the complainant had not provided any work or service for the appellants, it was enough to amount to servitude if his conduct had produced a benefit for them and they had coerced him to do that. He defined slavery as “treating someone as belonging to oneself by exercising some power over that person as one might over an animal or object”. Noting that the charge alleged holding the complainant in slavery “or” servitude, he gave a direction in accordance with R. v Brown (Kevin) (1984) 1 B.C.C. 98970, [1983] 12 WLUK 32 that, to convict, the jury all had to be sure that the conditions in which the complainant had been kept amounted to slavery, and/or that they amounted to servitude.
Each appellant was sentenced to 11 years’ imprisonment in respect of the s.1(1)(a) offences. They were each sentenced to nine years’ imprisonment, to be served concurrently, for further offences arising from the same facts.
Held
Appeals allowed.
Servitude where victim provided no work or services – The judge’s directions left open the possibility that the jury had convicted on the basis that they were not satisfied that there had been slavery, but were sure that there had been servitude. Servitude had to involve the provision of work or services under coercion, R. v K [2011] EWCA Crim 1691, [2013] Q.B. 82, [2011] 7 WLUK 222 and Siliadin v France (73316/01) (2006) 43 E.H.R.R. 16, [2005] 7 WLUK 810 applied. The complainant had not provided services or done work for either appellant. Accordingly, the judge had made a misdirection: there had been no basis on which the case could be left to the jury on the footing that it was open to them to find that the complainant had been held in servitude (see paras 71-74 of judgment).
Whether s.1(1)(a) contained one offence or two – Section 1(1)(a) created one offence involving conduct of a kind which involved slavery or servitude, which were closely related concepts. Both would usually involve the domination of a person to induce them to provide work or services; to constitute servitude, that element had to be present. There was no purpose to be achieved by interpreting the provision so that it created two offences where the distinction between the ingredients was so fine and where in very many cases both would be present (para.79).
A Brown direction had not been required, R. v Chilvers (Peter) [2021] EWCA Crim 1311, [2022] 1 W.L.R. 1089, [2021] 8 WLUK 191 followed. If the jury had agreed that the complainant was held in slavery or servitude then the offence would be made out. There had been no evidence of servitude; the only word the jury should have considered was “slavery”. That could have been addressed by deleting the word “servitude” from the indictment or directing the jury that the word was irrelevant in this case. Where there was no coercion to provide work or services, particular care had to be taken to define “slavery” to show how it could exist without that element (para.81).
As it was possible that the jury might have been unsure that there was slavery, but sure that there was servitude and had convicted on that basis, the convictions were unsafe (para.82).
Definition of ‘slavery’ and jury directions – In Siliadin, the court found that the victim had not been enslaved in the sense that the accused had not had a genuine right of legal ownership over her. As it was not possible in law to own another person, that approach was difficult to reconcile with the prohibition on slavery in s.1. The essence of slavery was the domination of another person’s life so that they were deprived of any real personal autonomy. They were deprived of important freedoms by the coercion and controlling behaviour of another person. That could involve a form of imprisonment, forced work, demands for sexual and other services, or forced compliance with demands for obedience. They might have no freedom to decide where to live, or with whom. Slavery (and servitude) was a status, not a condition lasting only a short time. The judge had directed that the jury should decide whether the period of time was long enough to justify a finding that the complainant had been held in slavery or servitude; that was accurate, clear and helpful (paras 85, 92-93).
The best way to direct a jury about the meaning of slavery was to produce a direction tailored to the facts of the case. It would be helpful to identify the conduct of the defendant which was said to amount to holding the person in slavery, and to direct the jury that they had to decide whether that conduct had the effect of reducing the person’s personal autonomy to such an extent and for such a period that it amounted to holding them in slavery. The court offered two formulations of the general principle:
- Are you sure that the defendant exercised power over the complainant, as one might as an owner, which deprived him of the exercise of his free will as a person in his own right?
- Are you sure that the defendant made the complainant his slave, that is, stopped him being a person in his own right by exercising coercive power over him, treating him as if he owned him?
The judge’s direction on slavery had been drawn from R. v K, but it had been inadequate in that it drew attention to how one might treat an “animal or object”, rather than focusing on the effect of the conduct of the complainant’s personal autonomy and freedom. There had been evidence on which a jury properly directed could have concluded that the complainant had been held in slavery, but it had not been so overwhelming that, despite the judge having wrongly left it open to them to find that he had been held in servitude, the jury must inevitably have concluded that the complainant had been held in slavery. The convictions were unsafe (paras 95-100).
Sentence – The 11-year sentences for the s.1(1)(a) offences therefore fell away. The appellants’ applications for permission to appeal against the nine-year sentences imposed in respect of the remaining offences was dismissed (paras 105-113).
Retrial – The interests of justice did not require a retrial (para.122).
CLW comment
This case involved prolonged and cruel abuse of a physically disabled man by his wife and the man’s paid carer, who became the wife’s lover. Even after quashing the 11-year sentence each defendant received for holding the victim in slavery or servitude, the Court of Appeal upheld sentences totalling nine years imposed on each defendant, for three offences of ill treatment by a care worker in Webb’s case, and aiding and abetting the same offences in the case of the victim’s wife. In such distressing circumstances, there is a temptation to “throw the book at” defendants by stretching the gravest possible offences to include their actions. As the court remarks at [76], however, “it is an important principle” when construing a penal statute “that, as far as the wording allows, there should be no doubt about what conduct is penalised and what is not”. The court observes this principle in its construction of the term “servitude”, only to depart from it in its dicta on the meaning of “slavery”.
Section 1(2) of the 2015 Act stipulates that the references in section 1(1) “to holding a person in slavery or servitude… are to be construed in accordance with Article 4 of the Human Rights Convention”. As the court observes at [46], the convention itself provides no guidance as to the meaning of “slavery”; such guidance can be found only in the Strasbourg case law, the leading case being Siliadin. The court here recognises (at [47]) that, even if the evidence had established what the appellants contended was required – a complete deprivation of autonomy – it would not establish slavery under Siliadin, but expresses understandable puzzlement (at [85]) about what the Siliadin judgment can mean by “a genuine right of legal ownership” over a person as an element of slavery (quoted at [46]).
The court rightly holds that the victim was not subjected to servitude, which is, to quote an authority not cited in the instant case, “a special type of forced or compulsory labour or, in other words, ‘aggravated’ forced or compulsory labour” (CN and V v France, unreported, 11 October 2012, ECHR, at [91]). When discussing “slavery”, however, the Court of Appeal observes (at [51]) that it is not bound by Siliadin, but rather is free to construe Article 4 for itself (taking Siliadin into account). Although the convictions under the 2015 Act were unsafe because the jury was misdirected over servitude, the court’s suggested directions would have made a conviction possible in respect of slavery. While accepting that slavery involves something analogous to the exercise of a right of ownership, these directions are wide enough to apply in any case of coercive or controlling behaviour (an offence with which the wife in this case could have been charged: see [69]) where the jury is sure that the victim was not treated as “a person in his [or her] own right” – whatever they might take that to mean. From one point of view, this case is a welcome recognition of the gravity of severe domestic abuse; but it is also a setback for the principle of legal certainty.
Tony Ward
Guralp Systems Ltd v Director of the SFO
Divisional Court
13 January 2026
[2026] EWHC 37 (Admin), CLW/26/02/1
Summary: The correct interpretation of a deferred prosecution agreement (DPA) requiring a company to pay £2 million in disgorged profits by 22 October 2024, taking into account the interests of justice, was that the DPA did not automatically expire where the agreed sum remained unpaid. Accordingly, the Crown could apply within a reasonable period after 22 October 2024 to terminate the DPA and reinstate criminal proceedings, and a 21 November 2024 application had been made within that reasonable time.
The appellant company (G) appealed by way of case stated against the Crown Court’s finding that the respondent Serious Fraud Office (SFO) could apply to the court to terminate a deferred prosecution agreement (DPA).
The SFO and G had agreed that around £2 million had been unlawfully generated by G from alleged bribery offences. In October 2019, instead of prosecution, the parties and the Crown Court agreed to suspend the indictment and make a DPA. The DPA required G to disgorge the £2 million profits to the SFO. Paragraph 4 of the DPA stated that the agreement would end by 22 October 2024, when the financial terms had been satisfied. Under para.7, the SFO agreed that if G fully complied with its obligations, it would not prosecute G. Pursuant to para.26, if the SFO believed that G had failed to comply, it could apply under sch.17 para.9 to the court for the agreement to be terminated and the suspension of the indictment lifted, thereby reinstituting criminal proceedings. The money was not paid.
On 21 November 2024, the SFO applied to terminate the DPA because G had failed to comply with its terms. G maintained that the DPA had already expired, on 22 October 2024, and so could not be terminated. The Crown Court held that the DPA was still in force at the time of the Crown’s application.
The issues were whether (1) the High Court had jurisdiction to hear the appeal; (2) the DPA had expired on 22 October 2024, or continued so that enforcement action could be taken in relation to the non-payment.
Held
Appeal dismissed.
Legal framework – Pursuant to the Crime and Courts Act 2013 Sch.17 Pt 1 para.2, a DPA automatically suspended court proceedings. The effect of a DPA was to prevent a trial on indictment from ever taking place, provided that its terms were complied with. If they were not, then a trial might be allowed to proceed if the agreement was terminated by the court under sch.17 para.9(3)(b), and the Crown then applied to lift the suspension. An application under sch.17 para.9 could only be made while the DPA was in force (see paras 7, 13, 23 of judgment).
Whether the High Court had jurisdiction to hear the appeal – Pursuant to the Senior Courts Act 1981 s.28, an appeal to the High Court by way of case stated, from the Crown Court, could not be made where the Crown Court decision related to a trial on indictment. A judicial decision about DPA taken while the indictment was suspended did not “relate to a trial on indictment”. Accordingly, the High Court had jurisdiction to consider the appeal by case stated (paras 6, 14).
Interpretation of the DPA – The DPA was not a commercial contract, but an agreement created by statute that was intended to operate in the public interest. The agreement could not come into force unless the court made a declaration under Sch.17 para.8 that it was in the interests of justice. DPAs usually provided for the recovery by the state of the proceeds of crime. The ordinary principles of contractual construction need not be applied to a DPA’s construction. The lower court’s judgment had stated that a consequence of G failing to meet the terms of the agreement might be that it would be prosecuted. All parties to the October 2019 hearing understood that if the money was not paid by the expiry date, the SFO could take steps to renew the criminal proceedings. The court’s task was to ascertain the objective intention of the parties. A reasonable person would have understood the intention of the parties to be that the DPA should continue in force after 22 October 2024. Very clear words would be required to show that it was the intention of the parties that G would be relieved of any obligation to pay the disgorged profits which remained unpaid at 22 October. Such an interpretation would be contrary to the interests of justice. By cl.7, the DPA expressly provided that if G complied with all its obligations under the DPA then the SFO would not continue criminal prosecution against it, and the agreement would expire. It was a necessary corollary of that fact that if the financial terms had not been fully satisfied by 22 October 2024, then the DPA remained in force and the SFO was free to continue to prosecute G. To give efficacy to the DPA as an instrument of justice, the SFO was afforded a reasonable period to make an application to the court. At the expiry of the reasonable time, if no application had been made to address the breach, the DPA would expire. The SFO’s application had been made within a reasonable time, and it was not necessary to consider how much longer might have been available before the DPA expired. G’s case involved reading cl.4 of the DPA in isolation from the rest of the DPA and from its context. The DPA remained in force on 21 November 2024 to allow effective action in the interests of justice, Arnold v Britton [2015] UKSC 36, [2015] A.C. 1619, [2015] 6 WLUK 320 considered (paras 31-33, 35, 39, 46, 48-50).
G4S Health Services (UK) Ltd v Lewis-Ranwell
Supreme Court
21 January 2026
[2026] UKSC 2, CLW/26/03/4
Summary: The defence of illegality was engaged during negligence claims where a claimant alleged that certain public bodies had been negligent in failing to provide him with adequate care and mental health assessment, with the consequence that he had killed three people. Although the claimant had been found not guilty by reason of insanity in criminal proceedings, the distinctions drawn by the criminal law between diminished responsibility and insanity could not be permitted to govern the scope of the illegality defence in civil proceedings. The claimant’s conduct had to be regarded as unlawful for the purposes of the illegality defence.
The appellants appealed against a decision upholding the refusal to strike out negligence claims which the respondent (L) had brought against them.
L had a schizophrenia diagnosis and had spent periods in psychiatric intensive care. On 8 and 9 February 2019, he had spent two periods in police custody after being arrested on suspicion of burglary and causing grievous bodily harm. During both detention periods, he had appeared to be very mentally unwell. The need for a mental health assessment was discussed, but no assessment was arranged. On 10 February 2019, L attacked and killed three elderly men during a serious psychotic episode, in the delusional belief that they were paedophiles. He was charged with murder, but found not guilty by reason of insanity and detained under the Mental Health Act 1983 s.37 and s.41.
The appellants, against whom L brought his negligence claims, were: the chief constable of the relevant police force; a private company which provided forensic medical services to persons in custody; the NHS trust responsible for ensuring assessment of people with mental health issues in the criminal justice system; and the local authority responsible for the community mental health team. L alleged that the appellants had been negligent in failing to provide him with adequate care and mental health assessment on 8 and 9 February, thereby causing him to be released into the community in a psychotic state. He maintained that but for that negligence, he would have been admitted to hospital and would not have killed the men.
In seeking to strike out the negligence claims, the appellants relied on an illegality defence, maintaining that the court could not entertain a claim founded on a claimant’s unlawful act. The judge concluded that the defence only applied where a claimant had known that they were acting unlawfully, whereas the insanity verdict established that not to be the case. The Court of Appeal upheld that decision.
Held
Appeal allowed.
Threshold for engagement of illegality defence – It would be unjust if every act by a claimant which involved some unlawfulness, however trivial, barred their pursuit of an otherwise valid legal claim. A threshold was therefore needed. The defence of illegality raised questions of public policy and its underlying rationale was maintenance of the coherence of the legal system. A claimant’s actions did not have to carry criminal responsibility to cross the threshold for the defence of illegality. L’s case concerned a novel situation in which there was no direct domestic authority, so it was necessary to proceed cautiously, on a step-by-step basis, seeking to apply principles established in earlier cases and, where appropriate, developing them incrementally, Les Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2015] A.C. 430, [2014] 10 WLUK 876 followed (see paras 39, 112-114, 117, 119-121 of judgment).
Approaching the threshold in that way, L’s conduct was unlawful so as to engage the illegality defence. Previous analogous cases in the UK had involved criminal convictions, whereas L had been found not guilty by reason of insanity. However, there was no justification for allowing the distinction between diminished responsibility and insanity in criminal law to fetter the analysis of the availability of a defence in civil law. In L’s case, there had been no finding of criminal responsibility, but the jury’s verdict established that he had killed the three men. The finding of not guilty by reason of insanity did not negate the mens rea of murder. By contrast with a negligent or other tortious act which engaged the interests only of the parties to litigation, the claimant’s actions in killing the three men manifested the danger which he posed to the public and engaged the public interest. Killing another human being without lawful justification breached a fundamental moral rule and was unlawful conduct which engaged the illegality defence (paras 122-123, 127-129, 131-134).
Assessment of whether to uphold illegality defence:
It was necessary to apply the trio of considerations set out in Patel v Mirza [2016] UKSC 42, [2017] A.C. 467, [2016] 7 WLUK 518 (paras 43-44, 135-137):
(a) Purpose of transgressed prohibition – The prohibition transgressed was the most fundamental injunction against the taking of human life. Its purpose was the preservation of life and the promotion of respect for the sanctity of life. There was also a public interest in the public condemnation of unlawful killing and the punishment of those who behaved in that way, and in the State’s acknowledgement of the grievous wrong done to the victims and their family and friends. That prohibition and its purpose applied with equal force to a person in L’s position who, having killed, was found not guilty of murder by reason of insanity. Although he was spared criminal responsibility for his conduct, and the law focused on the protection of the public as opposed to punishment, his conduct was neither justified nor excused. It was unlawful and deserved to be condemned. The court was entitled and required to take a broad view of the underlying policies. To allow L’s civil claim to proceed would give rise to a series of inconsistencies which would damage the integrity of the law and public confidence in the integrity of the legal system. Members of the public would be profoundly concerned if L were able to claim for the consequences of his wrongful act and if public money were used for that. The purpose of detaining L was to protect the public from the risk which he posed. To compensate him for that detention would be incoherent. There were very weighty considerations supporting the view that the underlying purpose of the prohibition transgressed would be enhanced by denial of the claim (paras 141-151, 154).
(b) Other relevant public policies which might be rendered ineffective or less effective by denial of claim – In general, it was in the public interest that the courts should adjudicate civil wrongs. L’s claims would allow examination of the standards of care provided, which might have the effect of encouraging providers to provide better care for the mentally ill. However, alternative procedures, such as inquests and public inquiries, were better suited for those purposes. Debarring L’s claim would not be inconsistent with the criminal court’s verdict: the distinctions drawn by the criminal law between diminished responsibility and insanity could not be permitted to govern the scope of the illegality defence in civil proceedings, which had to be determined by wider considerations. L’s conduct had to be regarded as unlawful for the purposes of the illegality defence. The policy considerations in favour of denying a civil claim greatly outweighed those in favour of permitting it (paras 155-157, 159).
(c) Proportionality of denying civil claim – Denial of the claim would not be a disproportionate response to the illegality (paras 160-163).
The above conclusion accorded with the essential reasoning of earlier relevant judgments, Clunis v Camden and Islington HA [1998] Q.B. 978, [1997] 12 WLUK 124 applied, Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 A.C. 1339, [2009] 6 WLUK 456, Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43, [2021] A.C. 563, [2020] 10 WLUK 386 and Patel followed (paras 164-171).
R. (Ammori) v Secretary of State for the Home Department
Divisional Court
13 February 2026
[2026] EWHC 292 (Admin), CLW/26/06/22
Summary: The Home Secretary’s decision to proscribe the “direct action” protest group Palestine Action would be quashed. She had taken into account a consideration inconsistent with her own policy, namely the advantages to be had from being able to use the criminal offences consequent on proscription against supporters of the group. That did not comply with the requirement in the policy that the decision to proscribe be proportionate. Further, the failure to comply with the policy meant that the interference with ECHR art.10 and art.11 rights caused by the decision was not prescribed by law and therefore could not be upheld.
A co-founder of Palestine Action, a “direct action” protest group, applied for judicial review of the secretary of state’s decision to proscribe the organisation by adding it to the list of proscribed organisations in the Terrorism Act 2000 Sch.2.
Palestine Action targeted military and corporate entities in the UK, aiming to disrupt their connections with Israel. Its main target was the UK subsidiary of an Israeli defence contractor. Its actions included acts of criminal damage such as spray painting. There was evidence that it had undertaken 385 actions since 2020. The secretary of state identified three actions which met the definition of terrorism in s.1 of the Act in that they involved “serious damage to property” within s.1(2). She considered that Palestine Action was an organisation concerned in terrorism within s.3(5). She went on to consider her discretion to proscribe the group under s.3(3).
The secretary of state’s policy on the exercise of that discretion stated that she would only proscribe an organisation “if it is proportionate to do so”. The policy stated five factors relevant to proportionality. The secretary of state treated the nature and scale of the organisation’s activities, and the extent of the threat it posed in the UK, as the two most pertinent factors. The policy also required the secretary of state to consider “other factors” of the same nature.
The claimant argued that
- the secretary of state had, in breach of procedural fairness, failed to give Palestine Action the opportunity to make representations before she decided to proscribe it;
- the proscription decision had breached the secretary of state’s policy;
- the decision was an unjustified interference with ECHR art.10 and art.11 rights.
Held
Application granted.
Palestine Action’s activities – Palestine Action characterised its activities as “civil disobedience”, meaning that the proscription decision was extreme. However, the hallmarks of civil disobedience, namely seeking a change in the law or policy, an approach to law-breaking characterised by restraint, and acceptance of the legal consequences, were emphatically not the hallmarks of Palestine Action’s campaign. It sought to close down the operations of a company pursuing a lawful business and its campaign had not been pursued with restraint (see paras 23-30 of judgment).
Procedural fairness – Executive powers provided under statute were to be exercised in a manner that was fair in all the circumstances, including all aspects of the nature and context of the decision, R. v Secretary of State for the Home Department Ex p. Doody [1994] 1 A.C. 531, [1993] 6 WLUK 233, Bank Mellat v HM Treasury [2013] UKSC 39, [2014] A.C. 700, [2013] 6 WLUK 527 and Begum v Secretary of State for the Home Department [2024] EWCA Civ 152, [2024] 1 W.L.R. 4269, [2024] 2 WLUK 361 followed. Fairness did not require the secretary of state to give Palestine Action notice, to provide reasons, or to give it the opportunity to make representations. The national security context meant that a court should be cautious to supplement the statutory procedural requirements. Consultation with an organisation provisionally believed to be concerned in terrorism was not an obvious step. Any communication would necessarily be guarded and in some cases the secretary of state might conclude that no information could be disclosed. There would also be practical difficulties with a notice requirement: such an organisation might not be open about how to be contacted, and the secretary of state’s knowledge of its leadership might rest on sensitive intelligence material (paras 56-67).
Compliance with Secretary of State’s policy
The requirement of proportionality in the secretary of state’s policy did not require her to make a decision that satisfied the test a court would apply in accordance with Bank Mellat. Taking into account the stated proportionality factors meant weighing them against the consequences of proscribing the organisation. Accordingly, the proportionality requirement obliged the secretary of state to approach her discretion comprehensively: to appreciate the likely consequences of proscribing Palestine Action on its members/supporters and others; to understand the nature of Palestine Action by reference to the stated factors and/or other relevant considerations; and then to assess the need for proscription (paras 73-81).
The “nature and scale of an organisation’s activities” in the stated factors did not refer to the totality of an organisation’s activities; instead, it meant only such activities as amounted to terrorism within the s.1 definition. The proscription power was to proscribe organisations because they acted in ways that meant they were concerned in terrorism, not because of other activities falling short of terrorism (paras 82-84).
Regarding the stated factors, the secretary of state had adopted an appropriate approach of treating the nature and scale of Palestine Action’s activities, and the extent of the threat it posed in the UK, as pertinent factors, and her assessment of those matters as weighing in favour of proscription had been reasonably open to her. Although only three of Palestine Action’s many actions had been assessed to amount to acts of terrorism, the secretary of state had been entitled to attach significant weight to any act occurring in the UK that came within the s.1 definition. She had received evidence that further serious property damage amounting to acts of terrorism would occur in the UK and had been entitled to attach weight to the risk that Palestine Action’s activities would deter development of the UK defence industry and thereby cause prejudice to the UK’s strategic defence objectives (para.88).
However, the secretary of state’s approach to “other factors” had not been consistent with the policy. A theme in the documents leading to the decision had been that proscription would be advantageous because it would mean that the offences at s.11, s.12 and s.13 could be used against persons supporting Palestine Action. That was not a relevant consideration. The purpose of the policy was to limit use of the discretionary power to proscribe. Any “other factor” considered when applying the policy had to explain the particular need to proscribe the organisation above and beyond the belief that the organisation was concerned in terrorism. The operational consequences of proscription was not a factor consistent with the policy: such consequences applied equally to any organisation that met the “concerned in terrorism” requirement (paras 89-95).
Compliance with ECHR
The relevant interference with ECHR rights was the consequence of the criminal offences that were either contingent on proscription (the s.11 to s.13 offences) or the offences that were more easily proved through acts undertaken in connection with a proscribed organisation, such as property and funding offences. Taken together, those consequences were very significant. They were clear interferences with freedom of association. The s.12 and s.13 offences also interfered with the art.10 right to receive and impart information. The interferences applied to anyone who might wish to associate with Palestine Action, not just those who, at the point of proscription, had been members or supporters (paras 103-106).
ECHR rights did not afford any protection to violent protest, Attorney General’s Reference (No. 1 of 2022) [2022] EWCA Crim 1259, [2023] K.B. 37, [2022] 9 WLUK 223 followed. However, the interference with rights that had to be justified did not comprise the prohibitions so far as they affected Palestine Action’s campaign of undertaking and encouraging damage to property. Rather, what had to be justified was the restriction on actions comprising peaceful protest under the Palestine Action banner. Further, the secretary of state could not rely on the ECHR art.17 provision against abuse of rights: she could not rely on the fact of proscription to establish that a statement in support of Palestine Action aimed to destroy ECHR rights, Roj TV A/S v Denmark (24683/14) (2018) 67 E.H.R.R. SE8, [2018] 4 WLUK 239 considered (paras 107-115).
Since the secretary of state had failed properly to apply her policy, the interference with ECHR rights was not prescribed by law. Accordingly, the decision breached the Human Rights Act 1998 s.6 (para.125).
The aims of protecting others’ rights and freedoms and national security interests were legitimate and there was a rational connection between proscription and those aims. However, a fair balance had not been struck and proscription was disproportionate. Palestine Action promoted its cause through criminality; a very small number of its actions amounted to terrorist action. For those actions, regardless of proscription, the criminal law was available to prosecute those concerned and deter others. The nature and scale of Palestine Action’s activities, so far as they comprised acts of terrorism, had not yet reached the level, scale and persistence that would justify the application of the criminal law measures that were the consequence of proscription, and the consequent very significant interference with rights (paras 128-129, 138-140).
CLW comment
The claimant succeeded on two grounds. The narrower of the two was that the Home Secretary placed undue reliance on the efficacy of proscription in the exercise of her discretion and thus failed to apply her own policy [125]. Were this the extent of it, the current Home Secretary might simply begin the process anew, and if her published comments are reflective of her intent, conclude that proscription is (and was) appropriate. The broader ground results from the application of Articles 10 and 11 of the European Convention on Human Rights. The instant judgment, in lucid prose that is surely destined for close examination on appeal, in effect encompasses three overarching questions. To what extent and in what manner should the criminal courts privilege acts of civil disobedience? Where civil disobedience becomes acts of terrorism, should the state take into account the consequences of proscription upon those who support the cause but not those acts? And if so, how?
To the first, the court refers at [22], via Leggatt LJ in Cuadrilla Bowland Ltd and others v Persons Unknown and others [2020] EWCA Civ 9, [2020] 4 W.L.R. 29, CA (Civ Div), to John Rawls’ A Theory of Justice, published in 1971. According to Rawls, an act of civil disobedience must be non-violent, grounded in political principles of justice, performed openly with “fair notice” to the authorities, and accepting of the legal consequences flowing from it, including arrest and prosecution. In R. v Jones (Margaret) and others; Ayliffe and others v DPP; Swain v Same, CLW/06/13/7, [2006] UKHL 16, [2007] 1 A.C. 136, HL, at [89], Lord Hoffmann encapsulated the role of the state when confronted with such an act:
“My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.
The claimant, one of the co-founders of Palestine Action, sought to portray her organisation’s commitment to direct action as a contemporary example of this honourable history. If accurate, then proscription under the 2000 Act was plainly an “extreme” decision “repugnant to the traditions of the common law” (at [21]). But as the court observed, at [23]:
“The core hallmarks of civil disobedience, namely the objective of seeking a change in the law or government policy, an approach to law breaking that is characterised by restraint and acceptance of the legal consequences of their actions, are emphatically not the hallmarks of Palestine Action’s campaign. Its campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit [a subsidiary of Israel’s largest military manufacturer].”
Further, the evidence from the National Police Co-ordination Centre demonstrated that Palestine Action had conducted 385 distinct operations, of which three were of a gravity capable of constituting acts of terrorism within the ambit of section 1(1) of the 2000 Act (see [28]). In short, the proposition that Palestine Action is a “non-violent” organisation is not sustainable (at [29]). Consequently, it falls outside the consideration afforded to those identified by Lord Hoffmann and might, given the nature and scale of its activities, properly be proscribed, provided there were there no countervailing factors (at [88]).
But what about its supporters who have not themselves engaged in violence, of whom over 2,000 have been arrested since proscription and 694 charged with an offence under the 2000 Act? And more extensively, those who advocate, or simply report, the Palestinian cause but who are unconnected to Palestine Action (see [115], and [121]–[124])? Are their Article 10 and 11 rights engaged by the proscription?
Section 12 of the 2000 Act criminalises expressions of “an opinion or belief that is supportive of a proscribed organisation”. Section 13 makes it an offence to wear any clothing or display any article in public in such a way “as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”. The court declared as “satisfied that, taken together, the criminal law consequences of proscription are very significant” (at [104]) and entail “clear” and “significant” interference with Articles 10 and 11 (at [105 & 106]). This led to arguably its most contentious conclusion (and one that is likely to become the focus of attack on appeal):
“The interference with Convention rights that needs to be justified does not comprise the prohibitions so far as they affect Palestine Action’s ability to persist (for example) in its campaign of undertaking and encouraging damage to property. Rather, what needs to be justified is the restriction on actions comprising peaceful protest, consistent with Convention rights, under the Palestine Action banner ([109]) … this case is primarily concerned with the rights of individuals who have not acted unlawfully either before or since proscription, who would have wanted to express support for and associate with Palestine Action – whose stated aim is ‘to stop genocide and other atrocity crimes by causing disruption to corporate actors who aid, abet, facilitate and profit from those crimes’ – and who wished to engage in peaceful protests under the banner of Palestine Action, but are stopped from doing so ([115]) … we accept that the fact of proscription and the heavy penalties for the offences under the 2000 Act will mean that it is reasonable to expect people to risk averse, to adjust their behaviour and to avoid doing things that run any significant risk that they might commit any of those criminal offences. Since this is so, the interference with Convention rights in this case must be measured both by the restrictions required by the letter of the criminal offences; and by the further extent to which people will exercise self-restraint in terms of what they say and do ([121]) … Deciding where the balance should be struck in this case is difficult … Nevertheless, we are satisfied that the decision to proscribe Palestine Action was disproportionate ([138]) … the nature and scale of Palestine Action’s activities, so far as they comprise acts of terrorism, has not yet reached the level, scale and persistence that would justify the application of the criminal law measure that are the consequence of proscription, and the very significant interference with Convention rights consequent on those measures ([140]).
Standing back, it is surely legitimate to question the efficacy of deploying the heavy weaponry of the terrorism legislation against any group whose aims, if not whose methods, enjoy more than a modicum of public support. Proscription in such circumstances risks the perception that political advantage is being sought under the rubric of national security. Even where this is not the case, an act that extinguishes the target organisation but in so doing inflames its cause is self-defeating.
Andrew Campbell-Tiech KC
