Category: Crime

H, Regina v: CACD 25 Apr 2006

The defendant youth appealed his conviction and sentence for rape by oral penetration of a six or seven year old boy. He complained that the evidence contained such inconsistences that the case should not have proceeded. Complaint was also made that the court setting had been inappropriate for a thirteen year old witness.
Held: The evidence as to its essentials was not so inconsistent as to require the judge to intervene. As to the difficulties with the court ‘Such difficulties do not override the demands of the Convention, which does not settle for an inadequate best effort’ but there was no evidence that this defendant had been so overwhelmed as not to be able to take part in the trial. The appeal was dismissed.

Citations:

[2006] EWCA Crim 853

Links:

Bailii

Statutes:

Sexual Offences Act 2003 1, Criminal Procedure (Attendance of Witnesses) Act 1965 2, Powers of Criminal Courts (Sentencing) Act 2000 91

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Ptohopoulos CACD 1968
The judge withdrew from the jury the central issue whether the appellant was habitually in the company of a prostitute. . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Regina v Shippey and Jedynak 1988
The defendants were tried for rape. The defence pleaded no case to answer saying that the complainant’s evidence was weak uncorroborated and inconsistent.
Held: The judge should assess the evidence and if the evidence of the witness upon whom . .
Cited – Regina v Gallo 2005
The court considered when the inconsistenceis in a prosecution became such as to require the judge to intervene in what was otherwise a jury question.
Held: In exceptional cases ‘where the inconsistencies (whether in the witness’s evidence . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – Regina v Wren CACD 13-Jul-1993
The defendant was accused of indecent assault. He said that the complainant had consented.
Held: It was necessary for the jury to consider whether the appellant might honestly have believed that the complainant was consenting because that was . .
Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.241313

Docherty v H M Advocate: 1945

At trial, the judge had failed to make clear to the jury that the conviction of the appellant on a charge of murder depended on whether there was satisfactory proof of having acted in concert with others.
Held: Lord Moncrieff commented on an illustration which the trial judge had given to the jury in the course of his charge, saying: ‘It is true that if people acting in concert have reason to expect that a lethal weapon will be used – and their expectation may be demonstrated by various circumstances, as, for example, if they themselves have carried arms or if they know that arms and lethal weapons are being carried by their associates – they may then under the law with regard to concert each one of them become guilty of murder if the weapon is used with fatal results by one of them. In view of their assumed expectation that it might be used, and of their having joined together in an act of violence apt to be completed by its use, they will be assumed in law to have authorised the use of the fatal weapon, and so to have incurred personal responsibility for using it. If, on the other hand, they had no reason to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence would not be conclusive against them; and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act’. This distinction had the support of many authorities. Secondary responsibility for a criminal act arises only in cases of reasonable expectation. Commenting on the circumstances of the case: ‘But in this case the weapon which was used was a hatchet which was the property of the appellant and which must have been present visibly in the room; and it seems to me that in these circumstances either of the assailants must have ascribed to him a common expectation that in the stress of the event the other might snatch up anything which was handy and which was adapted to achieve the joint purpose’.

Judges:

Lord Moncrieff

Citations:

1945 J C 89

Jurisdiction:

Scotland

Cited by:

Cited – McKenna v Her Majesty’s Advocate ScHC 30-Dec-1999
The appellant was charged with murder. A witness had since died, and he objected to the introduction of his written statement, on the basis that this would infringe his right to a fair trial. The evidence was likely to be decisive.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.181204

Regina v Smith, Regina v Jayson: CACD 7 Mar 2002

The defendants were convicted of making indecent quasi-photographs of children under the Act. They had received e-mails, and opened the images in attachments to those e-mails. They appealed saying that the opening of the attachment was not sufficient to constitute the act of making an image.
Held: Applying Bowden and Atkins, the deliberate opening of the attachment or the downloading of an image from a web page did create a new image, thereby proliferating the distribution of such images. The defendants were properly convicted. The core test was whether the act of making an image should deliberate, and in the knowledge that the image was, or was likely to be, an indecent photograph or pseudo-photograph of a child.

Judges:

Lord Justice Dyson, Mr Justice Johnson and Judge Sir Rhys Davies, QC

Citations:

Times 07-Mar-2002

Statutes:

Protection of Children Act 1978 1(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Bowden CACD 10-Nov-1999
The defendant downloaded indecent images of children onto his computer, and printed them out. He was convicted of making new images by virtue of creating copies on his disc by downloading, by displaying them on his screen, and by printing them out. . .
Cited – Atkins v Director of Public Prosecutions; Goodland v Director of Public Prosecutions Admn 8-Mar-2000
For possession of an indecent image of a child to be proved, it was necessary to establish some knowledge of its existence. Images stored without the defendant’s knowledge by browser software in a hidden cache, of which he was also unaware, were not . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.170070

Regina v Parker: CACD 25 Feb 1997

The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having said it was admissible, what would have been its effect? The court could not decide that, and the prosecution had had no chance to test it. A retrial would be necessary.

Judges:

Otton, Butterfield LJ, Rant CB QC J

Citations:

[1997] EWCA Crim 573

Statutes:

Homicide Act 1957 3

Jurisdiction:

England and Wales

Citing:

Not followed – Luc Thiet Thuan v The Queen PC 2-Apr-1996
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his . .
Cited – Worcestershire Works Finance Limited v Cowden Engineering Limited 1971
The Privy Council, if it disapproves of a previous decision of the Court of Appeal, is at liberty to depart from it. . .
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .
Cited – Regina v Thornton (Sara) CACD 13-Dec-1995
Battered women’s syndrome may be a relevant characteristic in a murder trial to be taken account of when judging context of provocation. . .
Cited – Regina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .
Cited – Regina v Dryden 1995
The court considered the defence of provocation to a charge of murder.
Held: ‘eccentric and obsessional personality traits’ were mental characteristics which should have been left for the jury. . .
Cited – Regina v Humphreys CACD 1995
Defence of provocation to murder. Abnormal immaturity and attention seeking by wrist slashing were mental characteristics which should have been left for the jury to decide upon. . .
Cited – Regina v Raven CACD 1982
The 22-year old defendant had a mental age of 9 years. He said it was inappropriate when judging the availability of the defence of provocation to a charge of murder to ignore that fact. The Recorder of London ruled that, having regard to the test . .
Cited – Regina v Baillie 1995
Defence of provocation to charge of murder. . .
Cited – Regina v Ahluwalia CACD 31-Jul-1992
The appellant sought substitution of a conviction for manslaughter of her husband for that of his murder. She had long suffered violent treatment by him. She had not raised the issue of diminished responsibility at trial.
Held: The court . .

Cited by:

Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.150028

Regina v Hilton: CACD 7 Mar 1997

The defendant on a theft charge was a signatory on an account and caused money to be transferred to other accounts.
Held: The instructions to the bank had caused the transfers, and the defendant had therefore misappropriated the credit balance by assuming the right to that balance. The offence had taken place.

Judges:

Evans LJ, Clarke J, Brian Walsh QC

Citations:

[1997] EWCA Crim 661, [1997] 2 Cr App R 445, (1997) 161 JP 459, [1997] Crim LR 761

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
Cited – Regina v Graham, Kansal, etc CACD 25-Oct-1996
The court discussed when it was appropriate for the Court of Appeal to substitute other lesser convictions, after the main conviction had been declared unsafe.
Held: After studying the authorities at length, the court felt that the various . .

Cited by:

Distinguished – Regina v Briggs (Joan) CACD 12-Dec-2003
The defendant appealed her conviction for theft. She had involved herself in the sale of an elderly relatives house and arranged for a new house to be bought in her and another name.
Held: Hilton was to be distinguished. There, the defendant . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.150116

Regina v Giles: CACD 13 Mar 1997

The case involved an assault. The crown sought to introduce as evidence a statement made by the defendant’s brother at the scene under the res gestae rule.
Held: The circumstances were such as to allow admission of the evidence under the tests laid down in Andrews and Ratten.

Citations:

[1997] EWCA Crim 731

Jurisdiction:

England and Wales

Citing:

Cited – Ratten v The Queen PC 1-Jul-1971
Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which . .
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .

Cited by:

Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.150186

Regina v Wilson: CACD 5 Mar 1996

The appellant was convicted of an offence under s.47. He had, with his wife’s consent, branded his initials onto her buttocks with a hot knife.
Held: Consensual activity within a marriage was capable of being a matter for criminal prosecution. The appeal succeeded: ‘There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery. In our judgment, Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in Brown related only to a ‘sadomasochistic encounter’. However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition. The speeches of Lord Templeman, Lord Jauncey, and the dissenting speech of Lord Slynn all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under s. 47, albeit that actual bodily harm is deliberately inflicted. For our part we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else. We do not think we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter.’

Citations:

Times 05-Mar-1996, [1996] 2 Crim App R 241

Statutes:

Offences against the Person Act 1861 47

Jurisdiction:

England and Wales

Cited by:

Cited – Meachen, Regina v CACD 20-Oct-2006
The appellant appealed his conviction for anal rape. He said the incident had been consensual. He had administered a date rape drug. He said again that this had been consensual. The prosecution alleged that the injuries left were inconsistent with . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.88329

Prosser, Regina v: CACD 3 May 2019

Appeal from conviction for possessing a Class A drug with intent to supply. Appeal that now shown to be mixture of caffeine and paracetamol. The prosecution said that a conviction for attempt should be substituted.

Citations:

[2019] EWCA Crim 836

Links:

Bailii

Jurisdiction:

England and Wales

Crime

Updated: 06 July 2022; Ref: scu.637828

Cleeland, Regina (on The Application of) v Criminal Cases Review Commission: Admn 10 May 2019

Request for judicial review of a refusal of the defendant to refer the claimant’s conviction to the Court of Appeal.
Held: Refused.
‘ In future, we would expect the CCRC to be given an opportunity to make representations at an oral renewal hearing before permission is given to bring judicial review proceedings against it.’

Citations:

[2019] EWHC 1175 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Crime, Criminal Practice

Updated: 06 July 2022; Ref: scu.637778

G and R v Secretary of State for the Home Department: CACD 12 Apr 2006

The defendants appealed their convictions for rape of a girl under 13.
Held: The appeals were dismissed, but the sentences were reduced to conditional discharges.

Judges:

Lord Phillips CJ

Citations:

[2006] EWCA Crim 821, [2006] 1 WLR 2052

Links:

Bailii

Statutes:

Sexual Offences Act 2003 5

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 05 July 2022; Ref: scu.240434

Hendy, Regina v: CACD 12 Apr 2006

The applicant was sentenced to life imprisonment in 1992 for a brutal murder. He had pleaded diminished responsibility. There were now no papers from the trial. Medical evidence now suggested that at the time of the trial he would have suffered a personality disorder and depression.
Held: If this evidence were called at a trial of the appellant it might reasonably have affected the decision of the jury. In the circumstances this evidence provides another reason for concluding that the verdict of the jury was unsafe. The court imposed a substituted conviction of manslaughter and an order under the Mental Health Act for his continued detention.

Judges:

Lord Justice Gage Mr Justice Forbes Dame Heather Steel DBE

Citations:

[2006] EWCA Crim 819

Links:

Bailii

Statutes:

Criminal Appeals Act 1968

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Dietschmann HL 27-Feb-2003
Voluntary drunkenness No Diminished Responsibility
The defendant had been convicted of murder. At the time of the assault, he was both intoxicated to the point of losing his inhibitions and was also suffering an abnormality of mind sufficient substantially to reduce his mental responsibility.
Cited – Regina v Derek William Bentley (Deceased) CACD 30-Jul-1998
The defendant had been convicted of murder in 1952, and hung. A court hearing an appeal after many years must apply laws from different eras to different aspects. The law of the offence (of murder) to be applied was that at the time of the offence. . .
Cited – Regina v Andrews CACD 15-Oct-2003
The defendant sought leave to appeal her conviction for murder saying that a finding of manslaughter was appropriate for her diminished responsibility.
Held: There was insufficient evidence to establish that the judge’s directions on the . .
Cited – Regina v Gittens CACD 1984
Lord Lane set out the directions to be given to a jury on the defence of diminished responsibility: ‘Where a defendant suffers from an abnormality of mind arising from arrested or retarded development or inherent causes or induced by disease or . .
Cited – Regina v Gilbert CACD 2003
The court reviewed a number of authorities which deal with the correct approach by the court when asked to receive evidence pursuant to section 23. . .
Cited – Regina v Egan CACD 1992
The court considered the appropriate directions to a jury in diminished responsibility defence to murder charge.
Watkins LJ said: ‘In R v Lloyd . . directions as to the word ‘substantial’, to the effect that (1) the jury should approach the . .
Cited – Regina v Atkinson 1-Mar-1985
Jury Directions in diminished responsibility case. . .
Cited – Kelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State PC 14-Feb-2005
(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The . .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Cited – Regina v Hakala CACD 2002
The court discussed the correct approach of the Court of Appeal to new evidence on appeal: ‘However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 05 July 2022; Ref: scu.240367

Regina v Makuwa: CACD 23 Feb 2006

The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the prosecution to prove that she was not a refugee. The remaining elements of the defence were still for the defendant to establish. In this case the conviction was unsafe.

Judges:

Mr Justice Lloyd Lord Justice Moore-Bick His Honour Judge Findlay Baker QC

Citations:

[2006] EWCA Crim 175, Times 28-Apr-2006

Links:

Bailii

Statutes:

Forgery and Counterfeiting Act 1981 3, Immigration and Asylum Act 1999 31

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .

Cited by:

Cited – Evans, Regina v CACD 23-Jan-2013
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration

Updated: 05 July 2022; Ref: scu.239866

Kearney v Her Majesty’s Advocate: PC 6 Feb 2006

(High Court of Justiciary Scotland) The Board considered the assessment of the independence of a judge.
Held: Lord Carswell said that independence has a separate significance, apart from ensuring impartiality between the parties to the cause, for it is also required to protect the judge from dependence upon, and against interference by, the Executive, whether the latter is a party to the litigation or not.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC D1, [2006] HRLR 15, 2006 GWD 15-284, 20 BHRC 157, 2006 SLT 499, 2006 SCCR 130

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Misick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.

Crime, Natural Justice, Human Rights

Updated: 05 July 2022; Ref: scu.238742

Regina v Roffel: 19 Dec 1984

(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The company’s premises were destroyed by fire and the proceeds of insurance were paid into the company’s bank account. The company’s debts exceeded the proceeds of the insurance. The husband drew cheques on the company’s account and was prosecuted for theft from the company and convicted.
Held: (Majority) The court quashed the conviction. Under the Crimes Act 1958 the necessary element of appropriation required proof of adverse interference with or usurpation of some right or rights of the owner (Regina v. Morris). As the company was a separate legal entity, and in the particular circumstances (through its directing mind and will) had consented to the husband’s drawing the cheques, it could not be said that he had appropriated the company’s property.

Judges:

Young CJ, Crockett, Brooking JJ

Citations:

[1985] VR 511, [1985] VicRp 51

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Disapproved – Regina v Philippou CA 1989
The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
Disapproved – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 05 July 2022; Ref: scu.214209

Regina v Chapman: CACD 2015

The defendant appealed against his conviction for misconduct in public office.
Held: The Lord Chief Justice stated that the judge in summing up had to make clear that the necessary conduct was not simply a breach of duty or a breach of trust: ‘It is not in our view sufficient simply to tell the jury that the conduct must be so serious as to amount to an abuse of the public’s trust in the office holder, as such a direction gives them no assistance on how to determine that level of seriousness. There are, we consider, two ways that the jury might be assisted in determining whether the misconduct is so serious. The first is to refer the jury to the need for them to reach a judgment that the misconduct is worthy of condemnation and punishment. The second is to refer them to the requirement that the misconduct must be judged by them as having the effect of harming the public interest.’

Citations:

[2015] 2 Cr App R 10

Jurisdiction:

England and Wales

Crime

Updated: 05 July 2022; Ref: scu.638154

Hilson, McCarthy v Crown Prosecution Service: Admn 11 Apr 2019

The defendants appealed by case stated from convictions for harassment of a judge who had dealt with a family dispute in which they had been involved. The court considered whether their actions were capable of amounting to harassment.
Held: They were.

Citations:

[2019] EWHC 1110 (Admin)

Links:

Bailii

Statutes:

Protection from Harassment Act 1997 2(1) 2(2)

Jurisdiction:

England and Wales

Crime

Updated: 05 July 2022; Ref: scu.637771

Kuddus v Regina: CACD 16 May 2019

The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the defendant knew of that information.
Held: The appeal succeeded.
Looking at someone responsible for running a restaurant: ‘such a person is or will be under a duty to take reasonable care to avoid serving food which can reasonably be foreseen would be likely to injure (or cause illness to) persons who may consume it. Although this is expressed as a duty owed to all who may consume the food, the scope of the duty that is owed must be answered by reference to the individual who consumes the food, applying normal tortious principles of the law of negligence . . .
The scope of the duty owed to any individual will be determined by the circumstances (or, as described in Honey Rose, the factual matrix). Thus, a restaurateur must obviously take reasonable steps not to serve food to a customer that is injurious to all and any members of the public. In relation to allergens (such as peanut protein) which may have an adverse effect on a sub-set of the population, the scope of the duty owed to members of the class (or subset) of allergy sufferers may well extend to identifying by warning in a menu or otherwise the presence of such allergens in food with the request that notice be given to the restaurant if, in a particular case, such an allergen is likely to cause harm.
Whether such a warning is provided by the restaurant or not, if a customer does alert the restaurant about a harmful allergy, the scope of the duty may then extend to operating a system either to ensure that such identified allergens are not provided or, ultimately, to warning the customer that the restaurant cannot provide food which meets their requirements. If the customer does not give notice to the restaurant of the harmful allergy (particularly when warning has been given on the menu or otherwise), it is difficult to see how the scope of duty could be extended to require the exclusion of all potential allergens in the food provided. Thus, the scope of the duty is fact specific.’

Judges:

Sir Brian Leveson P, Stuart-Smith, Jeremy Baker JJ

Citations:

[2019] EWCA Crim 837, [2019] WLR(D) 286

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Rose v Regina CACD 31-Jul-2017
The court was asked ‘In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have . .
Cited – Zaman, Regina v CACD 8-Nov-2017
The court considered what was required to be established for the offence of gross negligence manslaughter: ‘The prosecution has to prove the following elements.
(i) In accordance with the ordinary principles of negligence, the defendant owed . .
Cited – Winterton v Regina CACD 6-Nov-2018
Appeal against conviction for gross negligence manslaughter: ‘The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach.’ . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 05 July 2022; Ref: scu.637825

D Ltd v A and Others: CACD 28 Jul 2017

The complainant had had issued a summons against the defendants alleging fraud. They in turn applied for the summonses to be set aside on the ground of abuse. That having been granted, the complainant sought to have the terminating ruling set aside.

Citations:

[2017] EWCA Crim 1172

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ball v Johnson 29-May-2019
Summons granted for political lies allegation
(Westminster Magistrates Court) The court gave its reasons for acceding to a request for the issue of a summons requiring the defendant to answer a charge for three offences alleging misconduct in a public office.
Held: There was prima facie . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.621118

Chapman, Regina v: CACD 29 Jul 2013

Renewed application for leave to appeal from sentence and in particular a confiscation order, saying that the judge had failed to allow for adjustments she said should be made as to her assets.

Judges:

Moore-Bick LJ, Sweeney J, Judge Rook QC

Citations:

[2013] EWCA Crim 1370, [2013] Lloyd’s Rep FC 683, [2013] WLR(D) 318, [2014] 1 WLR 1376, [2014] Crim LR 611

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Criminal Practice, Criminal Sentencing

Updated: 04 July 2022; Ref: scu.513723

Hakimzadeh, Regina v: CACD 28 Apr 2009

Application for leave to appeal from sentence of two years imprisonment – 14 counts of theft. Books stolen from British library.

Citations:

[2009] EWCA Crim 959, [2009] Crim LR 676, [2010] 1 Cr App Rep (S) 10

Links:

Bailii

Jurisdiction:

England and Wales

Crime

Updated: 04 July 2022; Ref: scu.346832

Furby, Regina v: CACD 8 Nov 2005

Furby was a decent young man. His close friend was unduly sexually familiar with Furby’s partner, and she protested violently and physically. Furby struck his friend a single moderate blow to the face. A combination of unusual circumstances produced a subarachnoid haemorrhage, and the friend collapsed and died. The defendant immediately went to his assistance, trying mouth to mouth resuscitation. In the result, there was nothing he could do for him. His remorse was total. He was charged with manslaughter, and he pleaded guilty at the first available opportunity. He was sentenced to 2 and a half years’ imprisonment.
Held: The sentence was reduced to 12 months.

Judges:

Lord Phillips LCJ,Rrafferty J, MacKay J

Citations:

[2005] EWCA Crim 3147, [2006] Cr App R (S) 8

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Coleman CACD 1992
The court considered sentencing in manslaughter where death resulted from a single blow followed by a fall which ‘almost accidentally’ resulted in the deceased sustaining a fractured skull. The defendant was on his way home at night when he met two . .

Cited by:

Limited – Appleby, Regina v (Attorney-General’s Reference (No 60 of 2009) CACD 18-Dec-2009
Each defendant had been convicted of an assault resulting in a death, but where no weapon had been used and where but for the death the charge would have been assault occasioning actual bodily harm.
Held: The decision in Furby, while still . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.235804

Goodwin, Regina v: CACD 7 Dec 2005

The defendant had driven a jet-ski negligently. He appealed his conviction under the 1995 Act for having done an act which caused or was likely to cause a serious injury.
Held: The meaning of ‘ship’ might be extended to non-commercial and smaller vessels, but the stretch to classify a jet-ski as a ship was absurd. The appeal succeeded.

Citations:

[2005] EWCA Crim 3184, Times 04-Jan-2006

Links:

Bailii

Statutes:

Merchant Shipping Act 1995 58(2)(a)

Jurisdiction:

England and Wales

Crime

Updated: 04 July 2022; Ref: scu.235805

Fagan v Metropolitan Commissioner: 31 Jul 1968

The defendant was told by a police officer to park up his car. He did so, but stopped with his wheel, trapping the officer’s foot. The magistrates were unable to decide whether the parking on the officer’s foot was deliberate, but agreed that leaving it there had been deliberate.
Held: James J described the distinction between an assault and a battery: ‘For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The ‘actus reus’ is the action causing the effect on the victim’s mind . . The ‘mens rea’ is the intention to cause that effect.’
The appeal failed. ‘On the facts found the action of the appellant may have been initially unintentional, but the time came when knowing that the wheel was on the officer’s foot the appellant (1) remained seated in the car so that his body through the medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that position. For our part, we cannot regard such conduct as mere omission or inactivity.
There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act.’

Judges:

The LCJ, James J, Bridge J (dissenting)

Citations:

(1968) 52 Cr App R 700, [1969] 1 QB 439, [1968] 3 All ER 442, [1968] EWHC 1 (QB)

Links:

Bailii

Citing:

Cited – St George 1840
The ‘actus reus’ in an assault is the action causing the effect on the victim’s mind. . .

Cited by:

Cited – Regina v Ireland CACD 14-May-1996
Silent telephone calls which resulted in psychiatric damage to the victim could constitute an ‘assault occasioning actual bodily harm’ for the purposes of section 47 of the 1861 Act. Swinton Thomas LJ said: ‘The early cases pre-date the invention of . .
Cited – Director of Public Prosecutions v Santa-Bermudez Admn 13-Nov-2003
The prosecutor appealed a finding of no case to answer on an accusation of assault occasioning actual bodily harm. The victim, a police officer, was searching the pockets of an arrested person, when she was injured by a hypodermic needle. She had . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – Director of Public Prosecutions v Mark Thomas Ramos Admn 14-Apr-2000
. .
Cited – Regina v Burstow Admn 29-Jul-1996
Grievous bodily harm can be inflicted by a stalker without direct physical contact and can include psychological damage. The statute could be interpreted to reflect current standards. . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.235710

Tuberville v Savage: 1669

Tuberville laid his hand upon his sword saying, ‘If it were not Assize time I would not take such language.’ It was held that the act could have amounted to an assault but for ‘the declaration that he would not assault him, the Judges being in town.’ ; and the intention as well as the act makes an assault. Therefore if one strike another upoti the hand, or arm, or breast in discourse, it is no assault, there being no identim to assault ; but if one, intending to assault, strike at another and miss him, this is an assault : so if he hold up his hand against another in a threatening manner and say nothing, it is an assault. In the principal case the plaiutiff had judgment.

Citations:

[1669] EWHC KB J25, [1669] EngR 2160, (1669) 1 Mod 3, (1669) 86 ER 684 (C)

Links:

Bailii, Commonlii

Cited by:

Cited – Regina v Ireland CACD 14-May-1996
Silent telephone calls which resulted in psychiatric damage to the victim could constitute an ‘assault occasioning actual bodily harm’ for the purposes of section 47 of the 1861 Act. Swinton Thomas LJ said: ‘The early cases pre-date the invention of . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.235709

Rex v Borron: 1820

A criminal information was applied for against a magistrate.
Abbott CJ said: ‘They [magistrates] are indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, whenever they have been challenged upon this head, either by way of indictment, or application to this Court for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom.’ and
‘the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment.’

Judges:

Abbott CJ

Citations:

(1820) 3 B and Ald 432, [1820] EngR 136, (1820) 3 B and A 432, (1820) 106 ER 721

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Llewellyn-Jones CACD 1968
The Registrar of a County Court was convicted of offences of misconduct in public office. The indictment charged ‘misbehaviour in a public office, contrary to common law’ and alleged that court orders had been made ‘with the intention of gaining . .
Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – Regina v W CACD 2-Mar-2010
The defendant appealed against his conviction for misconduct in public office. As a police officer he had used an official credit card to pay for personal items. He said that he believed this was allowed where he intended to discharge the debt. He . .
Cited – ABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
Lists of cited by and citing cases may be incomplete.

Crime, Magistrates

Updated: 04 July 2022; Ref: scu.196546

Regina v Central Criminal Court ex parte Francis and Francis: HL 1989

The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an alleged drug trafficker. The solicitors relied on the exemption in section 27(4)(ii) that the material to which the order related included ‘items subject to legal privilege’. The definition of ‘items subject to legal privilege’ was to be found in section 10(1) of the 1984 Act.
Held: On a purposive construction of section 10(2), the relevant ‘intention’ did not have to belong to the particular person holding the items; rather, if the intention of furthering a criminal purpose were held by anyone, the items would lose their privilege. A drug trafficker with criminal intent could not protect himself by placing his documents in the hands of a solicitor. Privilege belonged to the client, not the solicitor, and a criminal intent disentitled the client to privilege.’ A solicitor ought to consult his client before relying upon a claim for legal professional privilege for that client’s documents. (Lord Griffiths) ‘I have no doubt that . . if an order to give access to documentation is made under section 27, the solicitor-client relationship provides a reasonable excuse within the meaning of the section for the solicitor to take his client’s instructions as to whether the order should be contested.’ Lord Goff: Section 10 expresses, but does not amend or vary, the common law position with regard to legal professional privilege.
The House approved the first part of Glidewell LJ’s reasoning in Snaresbrook:- ‘I have to recognise that . . . my conclusion in the present case undermines part of the reasoning of Glidewell LJ [in the Snaresbrook case]. But it does not necessarily undermine the conclusion of the Divisional Court in that case. This is because I am inclined to agree with Glidewell LJ that the common law principle of legal professional privilege cannot be excluded, by the exception established in R v Cox and Railton 14 QBD 153 in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings’ (emphasis supplied).

Judges:

Lord Griffiths, Lord Goff of Chieveley

Citations:

[1989] 1 AC 347

Statutes:

Drug Trafficking Offences Act 1986 27(4)(ii), Police and Criminal Evidence Act 1984 10(1) 27(4(1)

Jurisdiction:

England and Wales

Citing:

Overruled in part – Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions 1988
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .

Cited by:

Cited – Abbey National Plc v Clive Travers and Co (a Firm) CA 18-May-1999
The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the . .
Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – Miller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn 20-Dec-2002
Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
Cited – Hallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Crime

Updated: 04 July 2022; Ref: scu.185102

Regina v Pendleton: CACD 22 Jun 2000

The court set out the legal principles which apply to a proper assessment of the safety of a conviction in an appeal involving an application to adduce fresh evidence.

Judges:

Pill LJ, Sachs, Steel JJ

Citations:

[2000] EWCA Crim 45

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.158695

Regina v B (Attorney-General’s Reference No 3 of 1999); Regina v Weir: CACD 26 May 2000

Where a defendant gave a sample of DNA during an investigation, but the sample was not destroyed on his acquittal, evidence obtained from a cross match relating to a different crime was not admissible. The statute requires the samples to be destroyed, and evidence based upon samples not so destroyed cannot be admitted.

Judges:

Swinton Thomas LJ, Butterfield J, Rafferty J

Citations:

Times 16-Jun-2000, Gazette 06-Jul-2000, [2000] EWCA Crim 43, [2000] 3 WLR 1164, [2000] Crim LR 994, [2000] 4 All ER 360, [2000] 2 Cr App R 416

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 64(3B)

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General’s Reference No 3 of 1999 (Lynn) CACD 26-Mar-1999
There was an obligation to destroy fingerprints and samples in respect of persons who were acquitted. Nevertheless, if such material was unlawfully retained, it could be used for the purpose of investigating another offence, and the evidence could . .

Cited by:

Cited – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
Appeal from – Regina v Forbes (Anthony Leroy) (Attorney General’s Reference No 3 of 1999) HL 19-Dec-2000
The provisions of the Code of Practice regarding identification parades are mandatory and additional unwritten conditions are not to be inserted. Where there was an identification and the suspect challenged that identification, and consented to the . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Appeal from – Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-Dec-2000
A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence . .
Appeal From – Attorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Crime

Updated: 04 July 2022; Ref: scu.158693

Le Brocq v The Liverpool Crown Court: CACD 1 Aug 2019

Appeal against a wasted costs order against the defence barrister as regards remarks made in his closing speech which were said to have been prejudicial to the fairness of the trial.
Held: Allowed.

Judges:

The Lord Burnett of Maldon LCJ

Citations:

[2019] EWCA Crim 1398

Links:

Bailii

Statutes:

Prosecution of Offences Act 1985 19A

Jurisdiction:

England and Wales

Crime, Legal Professions

Updated: 04 July 2022; Ref: scu.641216

Yip, Regina v: CACD 26 May 2010

Appeal against conviction of one Count of acquiring criminal property, contrary to section 329(1)a) of the Proceeds of Crime Act 2002, and one Count of removing criminal property from England and Wales, contrary do section 327(1)e) of that Act.

Citations:

[2010] EWCA Crim 1381

Links:

Bailii

Jurisdiction:

England and Wales

Crime

Updated: 04 July 2022; Ref: scu.637493

Rose v Regina: CACD 31 Jul 2017

The court was asked ‘In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?’ The appellant, a registered optometrist, had examined a boy who, five months later died suddenly of hydrocephalus. It was said that she should have identified this. Held; The appeal succeeded: ‘ The inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach. The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore-seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).’
‘ In the circumstances, the relevant principles in relation to the cases of gross negligence manslaughter can be summarised as follows:
(1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to criminal act or omission.
(2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:
(a) the defendant owed an existing duty of care to the victim;
(b) the defendant negligently breached that duty of care;
(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
(d) the breach of that duty caused the death of the victim;
(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
(3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.
(4) A recognisable risk of something serious is not the same as a recognisable risk of death.
(5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.
A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could, or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.’

Judges:

Sir Brian leveson P QBD, Haddon-Cave J, Inman QC HHJ

Citations:

[2017] EWCA Crim 1168, [2017] WLR(D) 537, [2017] 3 WLR 1461

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.591699

Winterton v Regina: CACD 6 Nov 2018

Appeal against conviction for gross negligence manslaughter: ‘The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach.’

Judges:

Lady Justice Macur DBE

Citations:

[2018] EWCA Crim 2435

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Lists of cited by and citing cases may be incomplete.

Crime, Health and Safety

Updated: 04 July 2022; Ref: scu.628212

Zaman, Regina v: CACD 8 Nov 2017

The court considered what was required to be established for the offence of gross negligence manslaughter: ‘The prosecution has to prove the following elements.
(i) In accordance with the ordinary principles of negligence, the defendant owed the deceased a duty of care.
(ii) The defendant was in breach of that duty of care.
(iii) A reasonably prudent person would have foreseen that the defendant’s actions or omissions constituting the breach of duty had exposed the deceased to an ‘obvious and serious’ risk of death. The court in Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr Ap R 21 and Yaqoob [2005] EWCA Crim 2169 confirmed that the relevant risk to be reasonably foreseen is nothing less than the risk of death.
(iv) The breach of duty either caused, or made a significant contribution (i.e. a contribution that was more than negligible) to, the deceased’s death.
(v) The departure of the defendant’s conduct from the proper standard of care incumbent upon him, involving as it must have done the risk of death, was such that the breach of duty can properly be characterised as gross negligence and therefore criminal.’

Judges:

Hickinbottom LJ, Openshaw J, Topolski QC HHJ

Citations:

[2017] EWCA Crim 1783

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.598729

Carter, Regina v: CACD 31 Jul 2009

Appeal from conviction for murder.

Citations:

[2009] EWCA Crim 1700

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.368611

Regina v Hetherington: CANI 1975

Lowry LCJ discussed the rule against the admission of evidence obtained under mistreatment and said: ‘It is not for the defence to prove but for the prosecution to disprove beyond reasonable doubt in relation to each accused that he was not subject even to any degrading treatment in order to induce him to make a statement on which the Crown rely . . the decision under section 6(2) must be based solely on how the statement is proved to have been obtained and not on whether it was true.’

Judges:

Lowry LCJ

Citations:

[1975] NI 164

Jurisdiction:

Northern Ireland

Cited by:

Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.439724

PF Sugrue Ltd v The Attorney General: PC 14 Nov 2005

PC (New Zealand) The claimant’s helicopter had been seized by the police having been identified as having been used in the course of unlawful hunting of deer. The grounds for the seizure were said to be inadequate. It was disputed whether the purpose of the seizure was for forensic investigation.
Held: The Appeal court had been able to reach the decision it had done on the evidence, and had not strayed outside the limits of its powers in making the order it had. There were no grounds for reversing the finding.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Carswell, Sir Anthony Evans

Citations:

[2005] UKPC 44

Links:

Bailii, PC

Citing:

Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Police

Updated: 04 July 2022; Ref: scu.235360

Regina v Fraydon Navabi; Senait Tekie Embaye: CACD 11 Nov 2005

The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the defence of reasonable excuse and otherwise. The statute had to be read so as to comply with art 31 of the 1951 Convention. The convictions however were safe in this case.
Kennedy L.J said that the burden of proof was legal rather than evidential: ‘For that same reason, namely that the defendant alone is likely to have all of the relevant information, and bearing in mind the importance of maintaining an effective immigration policy, and the limitation on the penalties which can be imposed under the Act, we see no reason to conclude that the burden of proof should be interpreted as being anything less than a legal burden. An evidential burden would do little to promote the objects of the legislation in circumstances where the prosecution would have very limited means of testing any defence raised. ‘

Judges:

Kennedy LJ, Bell J, Dobbs J

Citations:

[2005] EWCA Crim 2865, Times 05-Dec-2005

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants etc) Act 2004 2, Convention and Protocols relating to the Status of Refugees 31

Jurisdiction:

England and Wales

Citing:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Khaboka v Secretary of State for the Home Department CA 1993
A refugee does not become a refugee because of recognition as such. He is recognised because he is a refugee so, for the purposes of Article 31.1 the term refugee includes someone who is only subsequently established as being a refugee, in other . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – Regina v Abdul Hussain and others CA 1999
The judge had been wrong to refused to leave the defence of necessity to the jury. The court gave guidance as to the proper approach. The judge should have asked himself whether there was evidence of such fear operating on the mind of the defendant . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .

Cited by:

Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Human Rights

Updated: 04 July 2022; Ref: scu.235244

Director of Public Prosecutions, Regina (on the Application of) v Glendinning: Admn 13 Oct 2005

The defendant had been accused of obstructing a constable in the execution of his duty by warning motorists of presence of a police speed trap. The prosecutor appealed from dismissal of the charge.
Held: ‘the hand signals given by the respondent were intended to warn motorists approaching from behind to reduce their speed because of the presence ahead of a police trap, but that there was no evidence that any such drivers were either driving in excess of the speed limit or were likely to do so. Hence, the Crown Court judge’s conclusion that the situation was analogous to that which would obtain if there was no other traffic in the vicinity.’ Applying the tests in Rice v Connolly, there was no evidence that any of the motorists were speeding or were likely to be speeding. The appeal was dismissed

Judges:

Scott Baker LJ, Owen J

Citations:

[2005] EWHC 2333 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bastable v Little 1907
The police had set up a series of speed traps in London Road, Croydon. Mr Little occupied himself giving warning signals to drivers approaching the traps, thus ensuring that they did not exceed the speed limit. There was no evidence that the drivers . .
Cited – Betts v Stevens 1910
The defendant, an Automobile Association patrolman was accused of obstructing a police constable in the execution of his duty. The police had set a speed trap, and the defendant had warned approaching vehicles of the trap. At the time they were . .
Cited – Green v Moore 1982
The respondent, a probationer police constable was convicted for obstructing police officers in the execution of their duty under s51(3) of the 1964 Act. He was a regular in a bar he knew was to be raided. He warned the landlord who complied with . .
Cited – Rice v Connolly 1966
No Legal Duty to Assist a Constable
At common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries. Lord Parker set out three questions to be answered when asking whether there had been an obstruction of an officer in the . .

Cited by:

Cited – Flegg v Justices of the Peace for the New Forest Local Justice Area Sitting at Lyndhurst Admn 21-Feb-2006
The defendant sought judicial review of the refusal by the magistrates to state a case. He was convicted for failing to identify the driver of a motor cycle of which he was a registered keeper which had been caught by a speed camera. Either of two . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.235192

Timmins, Regina v: CACD 15 Nov 2005

The defendant appealed conviction for indecent assault. The charge alleged assault by intercourse per vaginam with a 13 year old girl. He had been 14 years old at the time. The verdict indicated consent by the complainant.
Held: The appeal failed. The 2003 Act was not retrospective. However: ‘to hold that the express intention of Parliament in 1967 as to alternative verdicts should be thwarted by an express intention of Parliament in 1956 concerning the commencement of proceedings for a different offence than the one the subject of the alternative verdict would be quite wrong . . . the learned trial judge was right to rule as he did. Neither the speeches in J nor the words of Schedule 10 compel a conclusion that he was not. ‘

Judges:

Keene LJ, Hallett J, Calvert-Smith J

Citations:

Times 29-Nov-2005, [2005] EWCA Crim 2909

Links:

Bailii

Statutes:

Sexual Offences Act 1956 14(1), Sexual Offences Act 2003

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Hinton CACD 1995
The defendant had pleaded guilty to indecent assault on his 15 year old stepdaughter. The reason for the charge being under section 14 was that the time limit for prosecution under section 6 had expired. The sentence exceeded the maximum for the . .
Cited – Regina v McCormack CACD 1969
The defendant was charged with unlawful sexual intercourse and it was held to have been correct to leave to the jury as an alternative verdict a verdict of indecent assault. It was held as ‘plain beyond argument’ that if a man inserted his finger . .
Cited – Regina v Hodgson CACD 1973
An alternative verdict of indecent assault is available on a charge of rape. . .
Cited – Regina v Figg CACD 2003
The defendant had been convicted of indecent assault on facts which would have led to his prosecution for unlawful sexual intercourse if the time limit for that offence had not expired. The court considered the proper basis for sentence. . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Cited – Regina v Cotton 1896
The Act provided that on a trial for rape the jury, if not satisfied that the defendant was guilty of rape but satisfied that he was guilty of having intercourse with a girl aged between 13 and 16, contrary to section 5(1) of the Act, might convict . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 04 July 2022; Ref: scu.234964