Matytsina v Russia: ECHR 27 Mar 2014

ECHR Article 6
Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Handling of evidence in a manner that resulted in placing the defence at a substantial disadvantage vis-a-vis the prosecution: violation
Facts – The applicant worked for a non-profit association providing training sessions, lectures, personal consultations and the like. According to one of the association’s brochures, the treatment provided would help fight insomnia and depression, strengthen cardio-vascular systems, control emotions and boost natural defence mechanisms. The association operated without a licence as its activities were not considered ‘medical’ in nature. In 2003 criminal proceedings were opened against the applicant for the illegal practice of medicine after a client, SD, was diagnosed with serious psychological problems she claimed were directly linked to her participation in training sessions run by the association. A series of expert examinations were conducted in the pre-trial phase to establish whether S.D. had suffered any physical or mental harm as a result of her participation in the sessions and whether the sessions were ‘medical’ in nature. However, she did not give evidence before the trial court owing to her fragile mental state. The applicant was ultimately convicted.
Law
Article 6 – 1: The applicant complained that expert evidence adduced by the prosecution had been taken into consideration, whereas the reports and opinions of experts suggested by the defence had been declared inadmissible. The Court began by noting that the fact that at the beginning of the trial the trial court had only had before it expert reports obtained by the prosecution without any participation of the defence was not, as such, contrary to the Convention, provided that in the trial proceedings the defence had sufficient procedural tools to examine that evidence and effectively challenge it.
As regards the evidence concerning S.D.’s mental condition, the defence had not participated in the process of obtaining any of the expert reports at the investigation stage. Further, a key expert for the prosecution (the rapporteur of the only report based on a personal examination of S.D. and the only person to have claimed that the association’s training sessions had a direct causal link with her subsequent mental disorder) had been absent from the trial and the defence had not been able to question him. The court had refused to order another expert opinion, despite the fact that two other experts had thought a further opinion necessary. Moreover, under Russian law the defence did not have the same rights as the prosecution with regard to obtaining expert opinions: all they could do was either ask the court for an expert examination (and suggest experts and questions) or seek the assistance of ‘specialists’, whose opinion however carried much less weight than that of an ‘expert’. In consequence, the defence had had virtually no possibility of challenging reports submitted by the prosecution with their own counter-evidence. The Court concluded that the combination of the above handicaps experienced by the defence throughout the proceedings had put it at a net disadvantage vis-a-vis the prosecution.
As regards the evidence concerning the nature of the association’s activities, the Court observed that an expert opinion favourable to the defence which the authorities had obtained at the pre-trial stage was either never produced in court or was simply disregarded. Either way, the authorities had breached the fundamental principles of a fair trial, since according to the Court’s case-law, the prosecution must disclose to the defence ‘all material evidence in their possession for or against the accused’, including exculpatory evidence. That rule would make no sense if courts were allowed to leave such evidence without consideration and not even mention it in their judgments.
In sum, the Court was mindful of the fact that the trial judge had heard a number of witnesses for the defence, had examined several expert opinions and had studied various documents. However, the question of whether or not the defence had enjoyed ‘equality of arms’ with the prosecution and whether the trial had been ‘adversarial’ could not be addressed solely in quantitative terms. In the applicant’s case it had been very difficult for the defence to effectively challenge the expert evidence submitted to the court by the prosecution, on which the case against the applicant had been built. In those circumstances, the way in which the expert evidence had been handled had rendered the applicant’s trial unfair.
Conclusion: violation (unanimously).
Article 6 – 3 (d): The applicant also complained of his inability to examine SD in court. Instead of hearing her in person, the trial court had used her testimony obtained in the course of the police investigation without the defence’s participation. She was not called to testify in person owing to her fragile mental condition and the danger of a relapse.
The Court was prepared to accept that the interests of a witness, and in particular the physical and mental integrity of the alleged victim of a crime, were important factors which could sometimes justify limitations on the rights of the defence and that the decision at issue had not been arbitrary. More importantly, it considered that S.D.’s testimony had yielded no conclusive evidence against the applicant and had not been ‘sole and decisive’ evidence against her. Given the low level of importance of her testimony, her absence from the trial had not prejudiced the interests of the defence in any significant manner and had been outweighed by genuine concern for her well-being.
Conclusion: no violation (six votes to one).
Article 41: EUR 4,000 in respect of non-pecuniary damage.

58428/10 – Legal Summary, [2014] ECHR 435, [2014] ECHR 661
Bailii, Bailii
European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 03 December 2021; Ref: scu.524553

Regina v Davis and Thabangu: CACD 5 Dec 2013

The court exercised its rights under section 20 to penalise solicitors pursuing vexatious appeals.

Lord Thomas of Cwmgiedd, Griffith Williams J, Goss QC
[2013] EWCA Crim 2424
Bailii
Criminal Appeal Act 1968 20
England and Wales
Cited by:
CitedAchogbuo, Regina v CACD 19-Mar-2014
The Court considered a renewed application for leave to appeal which the Registrar had considered to be without merit and was referred under section 20 of the 1968 Act.
Held: The reference had been properly made. The application for extension . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 03 December 2021; Ref: scu.524027

Singh-Mann and Others v Regina: CACD 15 Apr 2014

The defendants appealed against their convictions for conspiracy to defraud, attacking the judge’s summing up.
Held: The appeals failed.
Fulford LJ said, as to where the accused had not given evidence: ‘On the basis of those authorities, it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge’s duty is simply to remind the jury of ‘such assistance, if any, as (defence) counsel had been able to extract from the Crown’s witnesses in cross-examination’ and any ‘significant points made in defence counsel’s speech’. In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury’s consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused.
The timing and the form of this summary (of the main arguments relied on by the defendant) will depend on the circumstances of the case – most particularly, whether the relevant evidence needs to be gathered together in one section of the summing up or whether it is preferable to refer to it incrementally as the judge summarises the evidence in the case as a whole – but in either case the judge ought to explain the key submissions of the accused in support of his defence at a convenient juncture during the summing up.’

Fulford LJ, Hickinbottom, Simler DBE JJ
[2014] EWCA Crim 717
Bailii
England and Wales
Cited by:
CitedHussain, Regina v (No 2) CACD 28-Apr-2016
. .
CitedLunkulu and Others v Regina CACD 7-Aug-2015
Request for leave to appeal out of time against convictions for murder and against sentence. Much evidence had been circumstantial, and the defendants alleged bias in the summing up, and complained of the admission of bad character evidence.
Criminal Practice

Updated: 02 December 2021; Ref: scu.523750

Pershad, Regina v: CACD 10 Apr 2014

The defendant appealed against his conviction for cheating the public revenue. He said that the prosection had been allowed to produce and use at trial evidence not previously disclosed. As a practicing barrister he had not paid his VAT for 12 years. He said that he believed this was being paid by his set.
Held: The appeal failed. The court had been wrong to allow the evidence, and in some ways the judge’s summing up had been deficient. However, the case against the defendant was overwhelming. It was essentially correct as to the law and the evidence was otherwise formidable.

Lord Thomas of Cwmgiedd, CJ, Keith, Royce JJ
[2014] EWCA Crim 692
Bailii
England and Wales
Citing:
CitedRegina v Rice CCA 1963
The court considered the status in evidence of a used air ticket.
Held: Where the prosecution have available evidence to establish an essential part of the case for the prosecution, that evidence should be called as part of the case for the . .
CitedRegina v Phillipson CACD 1990
The prosecution had failed to disclose certain letters and photographs exchanged by the Defendant and the father of her child and used them in cross-examination to rebut her defence that she had been carrying drugs under duress exerted by him. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 02 December 2021; Ref: scu.523656

JC and Another v The Central Criminal Court: QBD 8 Apr 2014

The court was asked whether an order made under s. 39 of the 1933 Act, prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years.
Held: A section 39 order expires when the young person turns 18,and could not be used to protect a young person thereafter.

Sir Brian Leveson P QBD, Cranston, Holroyde JJ
[2014] EWHC 1041 (QB), [2014] 1 WLR 3697, [2014] 2 FCR 571, [2014] 4 All ER 319, [2014] WLR(D) 166, [2014] Crim LR 902, (2014) 178 JP 188, [2014] 2 Cr App R 13, [2014] EMLR 20, [2014] EWHC 1041 (Admin)
Bailii, WLRD
Children and Young Persons Act 1933 39
England and Wales
Cited by:
CitedMX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
CitedAitken v Director of Public Prosecutions Admn 23-Apr-2015
The newspaper was accused of publishing an article in breach of reporting restrictions imposed under section 33. The court now asked whether the appellant, the newspaper editor, was for these purposes, the publisher and at risk of criminal . .

Lists of cited by and citing cases may be incomplete.

Media, Criminal Practice, Children

Updated: 02 December 2021; Ref: scu.523596

McInnes v Her Majesty’s Advocate: SC 10 Feb 2010

The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later become standard practice.
Held: The test for whether should have been disclosed is to ask whether there was a real possibility that, had the jury been shown the evidence not disclosed, they would have reached a different verdict. Disclosure should be made if the statement might have materially weakened or strbengthened either prosecution or defence cases. Under that test, all police statements should be disclosed. However, before a trial could be declared unfair under article 6 on appeal, the court should look to the significance of what had not been disclosed. It was axiomatic that an unfair trial created a miscarriage of justice. If there had been a real possibility of a different outcome, the jury’s verdict should not be allowed to stand. The appeal court had however already applied the correct standard, and the appeal failed.
Lord Brown said: ‘What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non- disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury’s verdict should be allowed to stand. I understand Lord Hope’s approach in para 22 to be entirely consistent with this formulation.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 7, UKSC 2009/0128, 2010 SLT 266, 2010 GWD 8-136, [2010] UKHRR 287, 2010 SC (UKSC) 28
Bailii, Times, SC, SC Summ, Bailii Summary
Criminal Procedure (Scotland) Act 1995, European Convention on Human Rights 6
Scotland
Citing:
Appeal fromMcInnes v Her Majesty’s Advocate HCJ 26-Sep-2008
The appellant appealed his conviction for a serious assault with the support of the Scottish Criminal Cases Review Commission. He complained that documents should have been disclosed to his defence team.
Held: The failure to disclose certain . .
CitedSinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
CitedAllison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
CitedHolland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
CitedHer Majesty’s Advocate v Murtagh (the High Court of Justiciary Scotland) PC 3-Aug-2009
All police statements as a class must be disclosed to the accused. . .
CitedMcDonald v Her Majesty’s Advocate PC 16-Oct-2008
mcdonaldhmaPC2008
(The High Court of Justiciary Scotland) The defendant sought to appeal against his convictions for murder and and assault. The HCJ in Scotland had refused to receive a devolution minute.
Held: The refusal was itself sufficient to give the . .
CitedRuddy and others v Procurator Fiscal, Perth and Another; Robertson v Higson PC 6-Feb-2006
(High Court of Justiciary Scotland) . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedSpiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
CitedMills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
CitedKelly v Her Majesty’s Advocate HCJ 23-Nov-2005
A statement to the police by the complainer was not made available to the defence. . .

Cited by:
CitedFraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
CitedMcCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another CA 20-Jan-2015
The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
CitedMacklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 30 November 2021; Ref: scu.396704

Downey, Regina v: Misc 21 Feb 2014

Central Criminal Court – The defendant faced charges of terrorist act of murder during the Irish troubles. He argued that the trial ws an abuse of process on four grounds, but particularly for a letter he had received after the Good Friday agreement which, he said, in effect gave a clear reassurance that he would not face trial if he returned to the UK.
Held: On that ground but not otherwise, the prosecution should be stayed: ‘Given the core facts as I have found them to be, and the wider undisputed facts, I have conducted the necessary evaluation of what has occurred in the light of the competing public interests involved. Clearly, and notwithstanding a degree of tempering in this case by the operation of the 1998 Act, the public interest in ensuring that those who are accused of serious crime should be tried is a very strong one (with the plight of the victims and their families firmly in mind). However, in the very particular circumstances of this case it seems to me that it is very significantly outweighed in the balancing exercise by the overlapping public interests in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute, and the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain. Hence I have concluded that this is one of those rare cases in which, in the particular circumstances, it offends the court’s sense of justice and propriety to be asked to try the defendant.’

Sweeney J
[2014] EW Misc 7 (CCrimC)
Bailii
England and Wales

Criminal Practice

Updated: 30 November 2021; Ref: scu.521637

Yam v Attorney General: Misc 27 Feb 2014

Central Criminal Court

Ouseley J
[2014] EW Misc 10 (CCrimC)
Bailii
Citing:
CitedA and Others, Regina v; Regina v The Crown Court at the Central Criminal Court ex parte A Times Newspapers Ltd etc CACD 13-Jan-2006
The defendant was to be charged with offences associated with terrorism. He had sought stay of the trial as an abuse of process saying that he had been tortured by English US and Pakistani authorities. The judge made an order as to what parts of the . .
See AlsoYam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
See AlsoYam v Regina CACD 5-Oct-2010
The defendant appealed against his conviction for murder saying that since part of the trial had been in camera the result was unsafe.
Held: The appeal failed. The Court addressed submissions advanced on his behalf indicating how substantially . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 November 2021; Ref: scu.521641

Chuah, Regina (on The Application of) v Birmingham Crown Court and Another: Admn 30 Jul 2013

Application for judicial review of refusal of leave to appeal against conviction out of time.
Held: Proceedings by way of judicial review were wrong, because the Claimant sought to undermine the basis of the conviction and so any challenge to the Crown Court rulings ought to have been by way of Case Stated.

Saunders, Hickinbottom LJJ
[2013] EWHC 3336 (Admin)
Bailii
England and Wales

Criminal Practice, Judicial Review

Updated: 29 November 2021; Ref: scu.520864

Jie Lin and Sheng Lu and Qing Guang He and Xin Chen v Her Majesty’s Advocate: HCJ 30 Nov 2012

The defendants, awaiting trial on charges for supplying drugs, appealed against the refusal of bail.
Held: It is competent before the sheriff, and by way of appeal by Bill of Suspension, to challenge the grant of a warrant for full committal, either on the basis that it is defective in form (there being three necessary requisites) or because the granting of the warrant would amount to oppression. The Bills of Suspension were not competent because they did not contain contentions that the warrants were either defective in form or oppressive

Lord Carloway LJC
[2012] ScotHC HCJAC – 151, 2014 SLT 173, 2014 SCCR 109, 2013 GWD 40-762, 2014 SCL 120
Bailii
Cited by:
CitedCMcL v Her Majesty’s Advocate HCJ 28-Mar-2013
The defendant, accused of murder appealed against refusal of bail, denying the existence of a prima facie case against him.
Held: Jie Lien was not authority for the proposition that a warrant can be suspended in the course of a bail appeal. . .

Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 27 November 2021; Ref: scu.519282

Baybasin and Others, Regina v: CACD 13 Dec 2013

The defendants sought leave to appeal against drugs related convictions saying that the method used for jury ballotting by the Crown Court was unlawful, the prosecutor having withdrawn his request for this, and that a juror had convicted after conducted internet searches about his family.
Held: The judge had followed the standard practice at that centre for long trials, but that practice was not used elsewhere. The procedures followed would not have alerted the jurors in any way prejudicial to the defendant, and the procedure might be considered by the Rules Committee.
The allegations of internet misuse were not made out.

Sir John Thomas LCJ, Cox, Holroyds JJ
[2013] EWCA Crim 2357
Bailii
England and Wales
Citing:
CitedRegina v Comerford CACD 28-Oct-1997
Jury interference was anticipated. The assembled jurors were each allocated a number before being brought into court. Instead of their names being called out in the ballot, their number was called for the ballot. No juror was identified in court by . .
CitedLewis and Others v Regina CACD 23-May-2013
The defendants appealed saying that a juror had extraneous material regarding the matters before the court had been researched by a juror.
Held: The court observed at that the inference that complaints after verdicts simply represent a protest . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 27 November 2021; Ref: scu.518988

Spetsializirana Prokuratura (Declaration Des Droits) (Judicial Cooperation In Criminal Matters): ECJ 30 Sep 2020

Opinion – Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to receive information in criminal proceedings – Directive 2012/13/EU – Articles 3 to 7 – Written Letter of Rights upon arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested under a European arrest warrant – Remedy against the decision to issue a European arrest warrant – Validity of Framework Decision 2002/584/JHA – Charter of Fundamental Rights of the European Union – Articles 6, 47 and 48

C-649/19, [2020] EUECJ C-649/19_O, ECLI:EU:C:2020:758
Bailii
European
Cited by:
CitedSpetsializirana Prokuratura (Declaration Des Droits) (Judicial Cooperation In Criminal Matters) ECJ 28-Jan-2021
Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2012/13/EU – Articles 4 to 7 – Letters of Rights set out in Annexes I and II – Framework Decision 2002/584/JHA – Right to information in criminal proceedings – . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 27 November 2021; Ref: scu.663880

Stocker, Regina v: CACD 13 Nov 2013

The prosecutor had made an error in framing a charge against the defendant, who now appealed saying that it was a nullity. After reviewing the authorities, Hallet LJ noted that there was now ‘a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect’.

Hallet LJ VP CACD, Sweeney J, Ziedman QC
[2013] EWCA Crim 1993
Bailii
England and Wales
Cited by:
CitedWhite v Regina CACD 15-Apr-2014
The defendant sought an extension of time for leave to appeal against his conviction for fraud. After his conviction there had been academic debate as to its basis, and the present application was not opposed. He had originally been charged under . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 25 November 2021; Ref: scu.517651

Gittins v Central Criminal Court: Admn 14 Jan 2011

The claimant sought judicial review of decisions to issues search warrants to HMRC in respect of his premises. HMRC wanted to look for evidence of tax avoidance schemes which it thought might be unlawful. Until the morning of the hearing, HMRC maintained that it could not disclose the information on the basis of which the warrants had been issued, for fear of prejudicing the continuing investigation which was not confined to the claimants. However, on the morning of the hearing HMRC provided a document giving the ‘gist’ of its case, and a redacted transcript of the hearing before HHJ Stephens QC.
Held: Gross LJ observed: ‘When an application for judicial review is launched seeking to quash the grant of a search warrant, it is, again, in some respects, akin to the ‘return date’ for Marevas, Anton Pillers and Restraint Orders. Ordinarily, the expectation will be that the party challenging the grant of the warrant must be entitled to know the basis upon which the warrant was obtained.
By their nature, criminal investigations are such that there will be occasions when, for good reason, HMRC (or other authorities as the case may be) will not be able to divulge the full information or the full contents of the discussion before the judge who granted the warrant. There is an important public interest in combating economic crime, and HMRC’s proper efforts to do so should not be undermined.
Where full disclosure cannot be given (and there will be cases where it cannot be), HMRC should, if at all possible, and again unless there is good reason for not doing so, make available, and in a timely fashion, a redacted copy or at least a note or summary of the information and the hearing before the judge, where appropriate, backed by an affidavit.’
Davis J said: ‘It must not be overlooked that an order issuing a warrant of the kind sought and granted in this case is, by its very nature, highly intrusive. Hence indeed the stringent pre-conditions under the 1984 Act Parliament has stipulated should be fulfilled before such an order may be made. Further, such orders are ordinarily, as here, sought on an ex parte basis: a reversal of course (albeit on well established grounds) of the usual rule that a party is entitled to be heard before any order is granted against him. Those two considerations seem to me to indicate that the prima facie starting point should be for HMRC to give, where requested, to the person who may be aggrieved at the issuing of the warrant and who may wish to challenge it, as much relevant information as practicable, provided it is not prejudicial to the investigation, as to the basis on which the warrant was obtained from the Crown Court.
It is of course relatively easy to envisage that there may be many cases where it could indeed be prejudicial to the investigation, prior to any charging decision, to disclose parts of the information and other materials deployed before the Crown Court judge in seeking the warrant. Non-disclosure in such circumstances can be justified. In the present case for example, we are told that a 59-page information and three supporting folders of materials were placed before the judge. Those have not thus far, in their full terms, been disclosed to Mr Gittins, and indeed Mr Jones QC did not seek to say they should have been, at all events at this stage. But, to repeat, it is not legitimate to move, without additional justification, from a position whereby it can properly be said that not all the materials placed before the Crown Court judge should be disclosed, to a position whereby it can be said that the recipient of the warrant is to be told nothing at all as to the basis on which the warrant was sought.
In my view, therefore, in each case where a request for such information is made by the person the subject of a warrant of the kind made here, HMRC should consider such requests on a individuated basis. Specifically, HMRC should assess what materials and information relied on before the Crown Court can properly be disclosed, with or without editing, and whether by way of summary or otherwise, without prejudicing the criminal investigation. It would be wrong simply to hide behind an asserted general policy as a justification in itself for declining to give any information. Indeed, I suspect that, while there perhaps may be cases where declining to give any information at all may be justified in particular circumstances, such a situation is likely to be an exception. Certainly it should not be taken as a norm. Where such a situation is said by HMRC to arise, then HMRC should be prepared to justify it. It is indeed, as I see it, salutary that that should be so.’

Gross LJ, Davis J
[2011] EWHC 131 (Admin), [2011] Lloyd’s Rep FC 219
Bailii
Criminal Justice and Police Act 2001 50
England and Wales
Cited by:
CitedGlobal Cash and Carry Ltd, Regina (on The Application of) v Birmingham Magistrates’ Court and Others Admn 19-Feb-2013
The claimant sought an order quashing a search warrant, and for damages. The officer had said that he had evidence that the claimants were storing an distributing from the premises large quantities of counterfeit goods and drugs.
Held: The . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
CitedHaralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
CitedA and Another, (On the Application of) v The Central Criminal Court and Another Admn 26-Jan-2017
(As redacted) Search warrants were challenged on the grounds that insufficient care had been taken of the possibility of the presence of privileged and or ‘excluded’ material. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Taxes Management

Updated: 23 November 2021; Ref: scu.443271

Regina v Davies: CACD 22 May 2001

The judge when sentencing the offender set a timetable for the purpose of determinations under the 1994 Act, requiring disclosure of assets and expenditure by the defendant within 28 days and a prosecutor’s statement within 28 days thereafter.
Held: Nevertheless, there had been a breach of section 3 because the court had failed to specify a period for which the determinations were postponed. The Court said:
‘The second use of the word ‘may’ in section 3(1) means, in this context, ‘must’ (see R v Ross . .). The Court in Ross did not give reasons for its opinion that this is the proper construction of section 3(1) and Judge LJ did not deal specifically with it in paragraph 58 of his judgment . . in Steele and Shevki. In our view the mandatory nature of the requirement is established by reading section 3 (1) together with section 3(3). The latter reads: ‘Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) which-‘(a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or subsection (4) below, when taken together with the earlier specified period or periods exceeds six months beginning with the date of conviction.’
The plain purpose of the section is to place time limits on the determination proceedings. Had Parliament intended merely to set a period within which, subject to exceptional circumstances, the determination must be made, it could, and in our view would, have explicitly so provided. The whole section, particularly subsection (3), is structured upon the assumption that the setting of a period or periods for postponement will take or has taken place. Without the setting of a period under subsection (1), the limitation imposed by subsection (3) does not bite. It follows that either Parliament intended that there should be no limitation when the court chooses not to specify the period, or it intended that the court should specify a period in every case. In our view the latter construction is inevitable.
30. In expressing its decision under section 3 (1), no particular form of words is required, provided that the decision of the court is made before sentence and that the decision of the court is manifest.
The court continued, saying: ‘If no particular form of words is required provided the decision is manifest, then that which is required to be manifest is a decision in compliance with section 3(1), including the period of postponement.’
Despite the timetable, a period had not in fact been specified. The court referred to the ‘necessity to specify a period under section 3(1)’

[2002] 1 WLR 1806, [2001] EWCA Crim 2902, (2002) Crim LR 224, [2001] All ER (D) 268, [2001] 2 Lloyds Rep 348
Drug Trafficking Act 1994 3(1)
England and Wales
Cited by:
CitedRegina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .
DoubtedSekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
CitedRegina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 November 2021; Ref: scu.654029

Regina v Garrod: CACD 18 Oct 1986

The fact on its own that a statement contained matters that might amount to an admission, that did not make the statement a mixed statement

Evans LJ, Scott Baker, Sedley JJ
[1997] Crim LR 445, [1996] EWCA Crim 1149
Bailii
Cited by:
CitedShirley, Regina v CACD 8-Nov-2013
The defendant had been convicted of several very serious sexual and physical assaults and rapes. He appealed against his conviction, saying that the judge had not fairly represented his defence to the jury. He said that the complainant had been . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 25 November 2021; Ref: scu.517493

Regina v Clarke and Fletcher: CACD 30 Jul 1997

Hutchison LJ said: ‘The way in which this Court should approach an appeal against conviction, based on allegedly inconsistent verdicts is well settled. To succeed the appellant must show first the verdicts are logically inconsistent, and secondly, that they are so inconsistent as to demand interference by an appellate court i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained. For those proposition we rely on the authority of R v. Durante.’

Hutchison LJ
(unreported, 30 July 1997)
England and Wales
Citing:
CitedRegina v Durante CACD 1972
Logical inconsistency is generally an essential prerequisite for success of an appeal against conviction on the ground of inconsistency of verdicts. . .
CitedRegina v McKechnie 1992
When a judge intends to provide an explanatory note for a jury, he should provide a copy to counsel in advance with sufficient opportunity for them to consider and comment on it. . .

Cited by:
CitedMuhib, Regina v CACD 13-Jan-1998
The defendant appealed against his conviction for manslaughter saying that the jury had returned inconsistent verdicts,
Held: ‘there is no possible logical inconsistency in the jury returning a verdict of manslaughter in relation to one victim . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 22 November 2021; Ref: scu.563176

Regina v Rowbotham and others: 1988

Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.’ Although they base that upon the charter of the state, they were of the view that the trial judge had the power to do that even before the advent of the charter; in other words, under the Common Law.’

Judges of Appeal Martin, Corey and Grange
(1988) 41 CCC,(3d) 1
Cited by:
CitedRegina v Dadshani 8-Feb-2008
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder. . .
CitedP, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .
CitedIn re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Aid, Criminal Practice

Updated: 21 November 2021; Ref: scu.541393

In re Brownlee for Judicial Review: SC 29 Jan 2014

The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed fee legal aid scheme. He had succeeded at first instance, but the Court of Appeal had held the Rules to be lawful.
Held: The appeal succeeded. The Rules failed to make allowance for the need for legal representatives to be paid for preparatory work in connection with sentencing had not been allowed for. However, sice the Rules had already been amended, the remedy would be by way of a declaration, rather than mandamus.
The Court of appeal had not allowed for the fact that the change of representation was initiated by the legal representatives and not by the appellant.

Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Reed, Lord Hodge
[2014] UKSC 4, UKSC 2013/0247, [2014] NI 188
Bailii, Bailii Summary, SC Summary, SC
Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
Northern Ireland
Citing:
Appeal fromBrownlee, Re Judicial Review CANI 23-Oct-2013
The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee . .
At First InstanceBrownlee, Re Judicial Review QBNI 20-Mar-2013
The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules . .
CitedRegina v Rowbotham and others 1988
Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .
CitedMcLean and Another v Buchanan, Procurator Fiscal and Another PC 24-May-2001
(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small . .
CitedCullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .
CitedP, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .
CitedPennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Aid

Updated: 21 November 2021; Ref: scu.521153

Rahmdezfouli, Regina (on The Application of) v Crown Court Sitting At Wood Green and Another: Admn 9 Oct 2013

The appellant challenged the refusal to allow him to vacate a guilty plea to a charge of failures to comply with a planning enforcement notice. It had been agreed that the magistrates had failed to ask the two questions required under the 1980 Act. The claimant contended that the Crown Court Judge erred in refusing to allow him to vacate his plea after finding as a fact that the magistrates’ court clerk had ‘failed to ask the statutory questions of the applicant’ as required by s.17A of the MCA. It was not disputed that the requisite procedure had not been followed ‘in any respect’, and ‘defence counsel conferred with his client and on coming into court told the court that his client wished to plead guilty to the offence. It was argued by the Interested Party . . that it was therefore appropriate for the court to accept from what counsel said that this defendant was fully aware of the implications of the offence to which he was intending to plead guilty and should therefore be regarded as having been fully informed before making that decision.’
The claimant, submitted: ‘that there was a requirement that the defendant should at the least have explained to him by the court, in ordinary language as the section requires, of four essential things: that the offence he faced was an either way offence; that he would be asked for an indication as to his plea if the case proceeded to trial; that if he indicated he wished to plead guilty that would be treated as a guilty plea; and fourthly that the court had the power to send him to the Crown Court for sentence if it thought right so to do.’Mackay J replied: ‘The issue therefore in this claim is whether it was the intention of Parliament that a failure to follow the statutory procedure laid down in section 17A rendered all subsequent proceedings invalid and a nullity, or whether they were to be considered a procedural failure.’ The claimant submiitted that the failure in that case ‘went to the heart of the court’s jurisdiction’. A magistrates’ court only derived its jurisdiction from statute and was only entitled to try an either way offence, as opposed to a summary offence, where the statutory requirement has been fully complied with. Mackay J observed that there was ‘a clear line of authority’ supporting that submission. He referred, inter alia, to Cockshott and Ex p Machin. He noted that theauthorities were not disapproved in Ashton. Quashing the conviction, Mackay J reasoned: ‘Adopting the criterion expressed in paragraph 4 of Ashton and not disapproved by the House of Lords in [Clarke] the legislature in enacting section 17A must have intended . . acting in line with then existing authority, that where a magistrates’ court declined or failed to follow the requirements of the section it was acting without jurisdiction every bit as much as if, for instance, it had purported to try a defendant on a charge of homicide . . ..’

Moses LJ, MacKay J
[2013] EWHC 2998 (Admin), [2013] WLR(D) 377, (2013) 177 JP 677, [2014] 1 All ER 567, [2014] Crim LR 158, 177 JP 677, [2014] 1 Cr App R 20
Bailii, WLRD
Magistrates Court Act 1980 17A
England and Wales
Citing:
CitedRegina v Kent Justices, Ex parte Machin 1952
The applicant had been charged before the justices with indictable offences. He consented to summary trial but it had not been explained to him that he might be committed to the Quarter Sessions for sentence.
Held: The court allowed . .
CitedClarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .

Cited by:
CitedWestminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Magistrates

Updated: 21 November 2021; Ref: scu.516326

Practice Direction On Costs In Criminal Proceedings: CACD 3 Oct 2013

John Thomas, Baron Thomas of Cwmgiedd LCJ
[2013] EWCA Crim 1632, [2013] 1 WLR 3255
Bailii
England and Wales
Citing:
See AlsoCriminal Practice Directions CACD 3-Oct-2013
. .

Cited by:
CitedVirgin Media Ltd, Regina (on The Application of) v Zinga CACD 11-Sep-2014
Virgin had successfully taken a private prosecution against the defendants for copyright infringement. They sought an order for their costs to be paid from central funds. On taking confiscation proceedings, costs were now sought against the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Costs

Updated: 21 November 2021; Ref: scu.516268

Jolleys, Regina v, Ex Parte Press Association: CACD 27 Jun 2013

Leveson LJ said: ‘It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence: see R v Central Criminal Court ex parte W, B and C [2001] 1 Cr App R 2 and in civil cases, the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1033 and Derispaska v Cherney [2012] EWCA Civ 1235 per Lewison LJ (at paragraph 14). The order was made when defence counsel asserted the likelihood of the defendant’s son suffering ‘the most extraordinary stigma through no fault of his own’ which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification.’

Leveson LJ
[2013] EWCA Crim 1135
Bailii
England and Wales

Criminal Practice, Media

Updated: 21 November 2021; Ref: scu.516262

Regina v Farooqi and Others: CACD 30 Sep 2013

Defendants appealed against their conviction of terrorist acts alleging incompetence by their leading counsel.
Held: The appeal failed: ‘ Notwithstanding many unfortunate features of this trial the convictions of three of the defendants, and the acquittal of the fourth defendant, followed a fair trial.’ Criticisms had been made, but ‘ the question for decision is not one of professional discipline, but whether the trial was marred by any unfairness to one or more of the appellants which renders any of the convictions unsafe.’ Defence counsel: ’embarked on the forensic strategy of an all-out attack on every aspect of the prosecution case, sometimes at a very late stage in the process, in circumstances which can be described as ‘ambush’ and of confrontation with and disobedience to the judge. The objective of this strategy would have been to seek to distract the attention of the jury from the simple question which they were required to address: what conclusions should properly be drawn from the incontrovertible evidence of these conversations? ‘ . . And . . ‘This was not fearless advocacy, with the advocate necessarily standing firm in the interests of his client in the best traditions of the Bar. Advocacy of the kind employed . . would rapidly destroy a system for the administration of justice which depends on a sensible, as we have emphasised, respectful working relationship between the judge and independent minded advocates responsibly fulfilling their complex professional obligations.’
The court gave detailed guidance on the limits of behaviour for an advocate in presenting his client’s case.
As to the defendant’s decision not to give evidence: ‘There is no credible material to support the proposition that Farooqi did not make an informed decision or that he was improperly advised. The submission that he should have been told in terms that he needed to go into the witness box has the disadvantage of being made in hindsight and from a different tactical viewpoint. It also fails to acknowledge the devastating nature of the cross-examination to which Farooqi would have been exposed, and its possible damaging impact on the remaining defendants including Farooqi’s son. It is clear to us that there was significant discussion of the pros and cons of giving and/or calling evidence; it is clear that Farooqi was aware that he had a free hand in the matter; and the overwhelming inference is that he understood the general approach of the defence, which was not to challenge the primary evidence given, but to seek to set it in a context favourable to him. There is nothing in this point.’

Igor Judge, Baron Judge LCJ, Treacy LJ, Sharp J
[2013] EWCA Crim 1649
Bailii
England and Wales
Citing:
CitedRegina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
CitedRegina v Rochford CACD 28-Jul-2010
The defendant appealed against sentence after being found in contempt. His lawyers had filed a defence statement, based on the defendant’s case, which the judge felt was inadequate. It was said that the defendant was in contempt after failing to . .
CitedKelly, Regina (on the Application of) v Warley Magistrates Court and The Law Society Admn 31-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 November 2021; Ref: scu.516265

Prokuratura Rejonowa Lodz-Baluty (Judicial Cooperation In Criminal Matters – Mutual Recognition – Failure To Provide A Translation of The Decision Being Enforced): ECJ 6 Oct 2021

Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Mutual recognition – Financial penalties – Framework Decision 2005/214/JHA – Grounds for non-recognition and non-execution – Article 20(3) – Decision imposing a financial penalty – Observance of the rights of the defence – Notification of documents in a language not understood by the sentenced person – Translation of the essential elements of the decision

[2021] EUECJ C-338/20, ECLI:EU:C:2021:805
Bailii
European
Citing:
OpinionProkuratura Rejonowa Lodz-Baluty (Judicial Cooperation In Criminal Matters – Mutual Recognition – Failure To Provide A Translation of The Decision Being Enforced – Opinion) ECJ 2-Sep-2021
Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Mutual recognition – Financial penalties – Framework Decision 2005/214/JHA – Grounds for non-recognition and non-execution – . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 November 2021; Ref: scu.668604

Prokuratura Rejonowa Lodz-Baluty (Judicial Cooperation In Criminal Matters – Mutual Recognition – Failure To Provide A Translation of The Decision Being Enforced – Opinion): ECJ 2 Sep 2021

Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Mutual recognition – Financial penalties – Framework Decision 2005/214/JHA – Grounds for non-recognition and non-execution – Failure to provide a translation of the decision being enforced – Linguistic rights – Right to a fair trial

C-338/20, [2021] EUECJ C-338/20_O
Bailii
European
Cited by:
OpinionProkuratura Rejonowa Lodz-Baluty (Judicial Cooperation In Criminal Matters – Mutual Recognition – Failure To Provide A Translation of The Decision Being Enforced) ECJ 6-Oct-2021
Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Mutual recognition – Financial penalties – Framework Decision 2005/214/JHA – Grounds for non-recognition and non-execution – . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 November 2021; Ref: scu.668521

Spetsializirana Prokuratura (Declaration Des Droits) (Judicial Cooperation In Criminal Matters): ECJ 28 Jan 2021

Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2012/13/EU – Articles 4 to 7 – Letters of Rights set out in Annexes I and II – Framework Decision 2002/584/JHA – Right to information in criminal proceedings – Letter of Rights on arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested on the basis of a European arrest warrant in the executing Member State

[2021] EUECJ C-649/19, ECLI:EU:C:2021:75
Bailii
European
Citing:
CitedSpetsializirana Prokuratura (Declaration Des Droits) (Judicial Cooperation In Criminal Matters) ECJ 30-Sep-2020
Opinion – Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to receive information in criminal proceedings – Directive 2012/13/EU – Articles 3 to 7 – Written Letter of Rights upon arrest – Right to be informed of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 November 2021; Ref: scu.669894

Brownlee, Re Judicial Review: QBNI 20 Mar 2013

The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules operate to constitute a breach of the applicant’s right to a fair trial pursuant to Art 6 of the ECHR. He was awaiting sentence, on a matter which might leave him subject to an indeterminate life sentence, but had no legal representation. The judge at trial had decided that he needed representation at a senior level. The LSC had cofirmed that having switched legal representation, fees would be available only on a fixed fee basis.
Held: The Rules were unlawful: ‘in order to avoid illegality there must be a modest adjustment to the impugned scheme or some other provision to enable the necessary adjustment to meet the exceptional and unusual circumstances which have arisen and to avoid the injustice which will thereby inevitably result if this is not done.’ Treacy J made an order of mandamus requiring the respondent, the Department of Justice to take all necessary steps to make Mr Brownlee’s right to legal aid effective.

Treacy J
[2013] NIQB 36
Bailii
Crown Court Proceedings (Cost) (Amendment) Rules 2011, European Convention on Human Rights 6
Citing:
CitedP, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Cited by:
Appeal fromBrownlee, Re Judicial Review CANI 23-Oct-2013
The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee . .
At First InstanceIn re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Criminal Practice, Legal Aid, Human Rights, Legal Professions

Updated: 20 November 2021; Ref: scu.503527

Regina v Shaw: CACD 1980

It was counsel who must decide whether he could continue properly to represent a client, not the judge.

[1980] 70 CAR 313
England and Wales
Cited by:
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 20 November 2021; Ref: scu.260271

Regina v G and B: CACD 2004

Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’.

Rose LJ
[2004] 2 Cr App R 37, [2004] EWCA 1368
England and Wales
Cited by:
CitedH, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.252539

Regina v Kempster: CACD 11 Dec 2003

Mantell LJ said that: ‘The judge has a discretion whether or not to grant an adjournment so as to permit fresh counsel to be instructed. The discretion has to be exercised with regard to the interests of justice in the particular case. The interests of the defendant, but also those of the prosecution, the witnesses and the public have to be taken into account. We have had regard to these principles, and to the provisions of Article 6.’

Mr Justice Jackson Lord Justice Mantell The Recorder Of Manchester
[2003] EWCA Crim 3555
Bailii
England and Wales
Cited by:
CitedCadamartriea, Regina v CACD 18-Oct-2019
Appeal from conviction of murder – whether a fair trial after a withdrawal by his counsel at the conclusion of his evidence. Counsel had said they were professionally embarrassed by new instructions.
Held: The appeal succeeded. The judge had . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 20 November 2021; Ref: scu.188712

Gazette Media Company Ltd. and Others, Regina (on the Application Of) v Teeside Crown Court: CACD 26 Jul 2005

The claimants appealed an order restricting their reporting of a criminal case so as to identify the defendant.
Held: Orders preventing the naming of a defendant in order to protect associated children are unlikely to enhance any child protection issues. The order was however required in this case. The actual order was quashed and an order along the lines of ex parte Godwin substituted.

[2005] EWCA Crim 1983, Times 08-Aug-2005
Bailii
Children and Young Persons Act 1933 839
England and Wales
Citing:
Citedex parte Godwin CA 1992
An order had been made to include provision that ‘the names and addresses of the defendants shall . . not be revealed or published’. The court was now asked whether a criminal court had power under section 39 of the CYP Act to prohibit in terms the . .
CitedIn re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
CitedCarter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica) PC 14-Jun-2004
(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was . .
CitedBriffett v Director of Public Prosecutions; Bradshaw v Director of Public Prosecutions QBD 6-Nov-2001
A bare order restricting reporting under the section was too vague to allow a later prosecution for contempt. Crook had established that the court must specify just what restrictions are to apply. . .
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2021; Ref: scu.229033

Regina v Williams: CACD 28 Jun 2005

The defendant had been convicted of many motoring offences. In sentencing him the judge had added an Anti-Social behaviour Order, which would have the effect of imposing a greater punishment for any further offences than would be possible for the offences themselves.
Held: The order if used for that purpose was improper.

Mance LJ, Elias J, Sir Charles Mantell
Times 15-Jul-2005, [2005] EWCA Crim 1796
Bailii
England and Wales
Citing:
CitedRegina v Hall CACD 2004
The court considered the propriety of making an anti-social behaviour at the same time as sentencing for traffic offences: ‘There is nothing wrong in principle in making such an order when there are driving offences of such a regularity and type and . .
CitedRegina v Kirby CACD 2005
The court asked when it might be able to add an anti-social behaviour order when sentencing: ‘To make an anti-social behaviour order in a case . . . Where the underlying objective was to give the court higher sentencing powers in the event of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2021; Ref: scu.228612

Regina v Abdrolkov; Regina v Breen; Regina v Williamson: CACD 28 Jul 2005

The defendants severally claimed that the presence on their respective juries of serving police officers or a solicitor employed by the CPS would cause bias.
Held: The presence of somebody involved professionally in the administration of justice need not allow a presumption of bias. None had any direct connection with the cases before them. The jury system which required unanimity or a majoity of ten provided real protection against individual bias. No reasonable objective onlooker would conclude that there was bias. The appeals were dismissed.

Lord Woolf LCJ, Richards, Henriques JJ
Times 18-Aug-2005
England and Wales

Criminal Practice

Updated: 20 November 2021; Ref: scu.229376

Regina v Jones (Robert) No 2: 1972

The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant.

[1972] 1 WLR 887, [1972] 56 CAR 413
England and Wales
Cited by:
CitedDelroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.242117

In re Hill and Others (Restraint Order): CACD 20 Dec 2005

The Revenue appealed against discharge of a restraint order. The discharge had been on the basis that some of the offences under investigation (perpetrating a fraud on the revenue) took place before the 2002 Act came into effect.
Held: The appeal succeeded. Under the former law, criminal proceedings had to be about to be begun before the jurisdiction to make an order arose, but: ‘the judge erred in his approach to the requirement of section 40(2)(a), when read in conjunction with Article 5 of the Commencement Order. The test to be applied is whether an investigation has begun into an offence which took place after 24th March 2003. In order to satisfy section 69, the offence must be one in respect of which a confiscation order may be made following conviction. For the purpose of establishing jurisdiction to make an order, it matters not whether the investigating authority is also investigating one or more offences which occurred before 24th March 2003. Nor does it matter, for the purpose of jurisdiction, that there is criminal conduct occurring before 24th March 2003, which underlies the post March 2003 offences – as may occur with money laundering. In our view, the time at which the test is to be applied is the time when the application is made, not when the investigation began. That is clear from the words of section 40(2)(a). All that is required therefore, to establish jurisdiction, is that an offence that may, following conviction, give rise to a confiscation order is under investigation at the time of the application. ‘

Smith LJ, Jack J, Milford QC
Times 27-Dec-2005, [2005] EWCA Crim 3271
Bailii
Proceeds of Crime Act 2002 \\\\840(1)
England and Wales
Citing:
CitedSekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
CitedRegina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2021; Ref: scu.237474

Attorney General’s Reference (No 1 of 1990): CACD 1990

A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those arrested. They were acquitted in January 1988. The investigation of the complaints was then resumed. In March 1989 (approaching two years after the incident), the police officer was served with summonses alleging two offences of assault occasioning actual bodily harm. He consulted a solicitor. In the Crown Court, over two years after the incident, the police officers submitted that in view of the delay the proceedings constituted an abuse of the process of the court. There had been delay by the prosecution in bringing a police officer to trial, so that the trial was not due to start till 27 months after the alleged offence.
Held: The trial judge held that, although the delay was not unjustified, on the balance of probabilities it might be prejudicial to the police officer and he ordered the proceedings to be stayed.
The traditional common law approach to abuse of process cases is that the courts may in their discretion, refuse the relief of a stay where to proceed would not amount to an abuse of process, or the unfairness could be cured. ‘The trial process itself is equipped to deal with the bulk of complaints which have founded applications for a stay.’ The power to order a stay is ‘a power to be exercised only in exceptional cases’.
Lord Lane CJ said: ‘In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.
It follows from what we have said that in our judgment the decision of the judge to stay the proceedings in the instant case was wrong. The delay, such as it was, was not unjustifiable; the chances of prejudice were remote; the degree of potential prejudice was small; the powers of the judge and the trial process itself would have provided ample protection for the respondent; there was no danger of the trial being unfair; in any event the case was in no sense exceptional so as to justify the ruling.
This judgment will, we hope, result in a significant reduction in the number of applications to stay proceedings on the ground of delay. At the risk of repetition, we emphasise the exceptional nature of the jurisdiction. In the event of an unsuccessful application to the Crown Court on such grounds, the appropriate procedure will be for the trial to proceed in accordance with the ruling of the trial judge and, if necessary, the point should be argued as part of any appeal to the Court of Appeal (Criminal Division).’

Lord Lane CJ
[1992] QB 630, (1992) 95 Cr App R 296
England and Wales
Citing:
CitedDirector of Public Prosecutions v Humphrys HL 1977
Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. . .
CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
CitedRegina v Derby Crown Court, ex parte Brooks QBD 1985
The court set out the characteristics of abuse of process in criminal matters. It may be an abuse of process if: ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law . .

Cited by:
CitedCulpepper v The State PC 20-Dec-2000
PC (Trinidad and Tobago) The defendant appealed against his conviction for murder. An elderly lady had been raped and murdered. Other evidence had been destroyed in a fire at the police station, and the . .
CitedRegina v Parker CACD 30-Jan-2003
The defendant appealed a conviction for causing criminal damage by fire with risk to life. The evidence was that no explanation existed other than that the fire had been started deliberately. She said she had been trying to light a cigarette in bed. . .
CitedAaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
CitedDirector of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
CitedRegina v Beedie CACD 11-Mar-1997
Stay for Extended Autrefois Convict
The plea of autrefois convict applies only if the legal substance of the charges is same but the judge has a discretion. The plea is not limited to Connelly v DPP definitions, but is still narrow.
A 19-year-old girl died of carbon monoxide . .
CitedPhipps, Regina v CACD 14-Jan-2005
The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
CitedDepartment for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
re-stated.S, Regina v CACD 6-Mar-2006
The court restated the principles applying a stay for abuse of process occasioned by delay. Rose VP LJ said: , the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind . .
CitedGadd, Regina v QBD 10-Oct-2014
The prosecutor sought leave to bring a voluntary bill of indictment, to pursue historic sex abuse allegations against the defendant. The defendant objected to counts founded on facts which were the substance of a charge of indecent assault . .
CitedJ, Regina v CACD 2-Jul-2001
Orse Attorney General’s Reference No 2 of 2001
The AG sought to appeal from the decision that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1). They were accused of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2021; Ref: scu.179818

Grzegorz Szwejer v Poland: ECHR 18 May 2010

The claimant complained of the length of delay in facing his trial on criminal charges.

Nicolas Bratza, P
5258/08, [2010] ECHR 806
Bailii
European Convention on Human Rights
Citing:
See AlsoGrzegorz Szwejer v Poland ECHR 15-May-2009
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 20 November 2021; Ref: scu.515413

Regina v D(R): Misc 16 Sep 2013

Crown Court at Blackfriars – the court was asked to what extent a witness wanting, from religious conviction, to hide her face with the niqaab form of Islamic dress should be allowed to do so, whilst giving evidence.
Held: The court considered expert evidence as to Islamic belief and custom, and also the Equal Treatment Bench book. The defendant had a qualified right to manifest her religion. The question was not one of judge craft, but of law. The defendant should be obliged to remove the material masking her face when giving evidence.

Peter Murphy Judge
[2013] EW Misc 13 (CC)
Bailii
England and Wales
Citing:
CitedBumper Development Corporation Ltd v Commissioner of Police of the Metropolis CA 1991
An Indian temple having a legal persona recognised in India may assert rights and make claims under English Law. Even though it would not be recognised as a litigant if based in England and Wales, it was nonetheless entitled, in accordance with the . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedRegina v Malvern Justices, Ex parte Evans 1988
The circumstances in which it is appropriate for a court to allow a name or other names to be withheld are rare. The Court cannot derogate from this principle for lesser purposes, including that of sparing the feelings of a defendant. . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 20 November 2021; Ref: scu.515317

Regina v Karakaya: CACD 16 Feb 2005

No Internet Research for juror

After conclusion of the trial, the jury bailiff discovered notes in the jury room which indictated that the jury, after they had retired for their verdict, had read and discussed notes obtained by a juror from the Internet relating to the case.
Held: Applying Mirza, the court could examine the materials found. ‘[T]he material obtained by the juror from the internet after the jury had retired, contravened the principles which prohibit the use of information, potentially relevant to the outcome of the case, privately obtained out of court by a juror, as well as the reception of further material after the jury’s retirement. Having considered the material, we are not satisfied that these convictions are safe. ‘ The court suggested that the Judicial Studies Board might consider guidance on judicial directions to cover these and related issues.

Lord Justice Judge, Cresswell, Deputy Chief Justice of England And Wales, Fulford J
[2005] EWCA Crim 346, Times 28-Feb-2005, [2005] 2 Cr App R 5, [2005] Crim LR 574
Bailii
England and Wales
Citing:
CitedRegina v Owen CCA 1952
The trial judge allowed a doctor who had already given evidence in the case, to be recalled to give evidence in answer to a question raised by the jury after its retirement.
Held: The conviction was quashed: ‘ . . Once the summing up is . .
CitedRegina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
CitedRegina v Wilson QBD 1957
‘The principle that, once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage, . . the conviction will be quashed.’ The court considered the nature . .
CitedRegina v Gearing CACD 1966
Lord Parker CJ said: ‘It has always been a very strict rule of this court that no evidence whatever must be introduced after the jury have retired.’ . .
CitedRegina v Sanderson CCA 1953
It was permissible for the evidence for a witness for the defence (only) to be taken after the summing up had been completed, but before the jury had retired. . .
CitedRegina v Davis (George) CACD 1976
After retirement, the jury requested, and was inadvertently supplied with a copy of a statement made by a witness to the police. The statement had been used by defence counsel for the purposes of cross-examination, but the document itself had not . .
CitedRegina v Stewart and Sappleton CACD 1989
After retirement, the jury requested provision of scales which were given. The defendants faced an accusation of importing cannabis of a certain weight, and claimed to have been unaware of the presence of the cannabis in their bags.
Held: Once . .
CitedRegina v Maggs CACD 1990
The charge was of causing death by dangerous driving. Sketch plans with measurements were supplied to the jury. They asked for and were given a tape measure. The defendant appealed.
Held: Though once they retired the hjury should not be given . .
CitedRegina v Thomas (Horatio Gerald) CACD 9-Feb-1987
The jury had, after retirement, requested and been given a map which had not been referred to in the case. Counsel were not consulted.
Held: The use of the map was a material irregularity: ‘It is hardly necessary to say that an action of this . .
CitedRegina v Oliver (Ian) CACD 6-Dec-1995
Detailed guidance was given on directions when a jury are to be allowed to split up overnight after retiring using the court’s discretion under s43, including ‘1. That the jury must decide the case on the evidence and the arguments which they have . .
CitedRegina v Fricker CACD 24-Jun-1999
The defendant was charged with attempting to handle stolen tyres, a juror, with highly specialised knowledge of tyre manufacturing asked, after retirement, and was allowed by the judge to take this knowledge into account.
Held: Where a juror . .

Cited by:
CitedAttorney General v Fraill and Another CACD 16-Jun-2011
Juror’s use of Facebook was contempt
The court considered whether a juror had committed contempt of court. She had communicated with a defendant via Facebook, despite explicit warnings not to use the internet.
Held: Both juror and defendant in the trial had committed contempt of . .
CitedCadman v Regina CACD 3-Jul-2008
Appeal from conviction of fraud – material provided to the jury after retirement which had not been used during the trial and made available to be challenged.
Held: Conviction set aside: ‘For the jury to use the extraneous material provided . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2021; Ref: scu.223105

O’Hara v Chief Constable of the Royal Ulster Constabulary: HL 21 Nov 1996

Second Hand Knowledge Supports Resaobnable Belief

The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded need not be based on the arresting officer’s own observations. All that is required is a genuine and reasonably based suspicion in the mind of the officer. The test as to whether there are reasonable grounds for suspicion to justify an arrest is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there must be reasonable grounds for forming such a suspicion. Such grounds can arise from information received from another, even if it subsequently proves to be false, provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion.
Lord Hope considered what was the level of suspicion necessary to found a valid arrest under the section, saying: ‘My Lords, the test which s 12(1) of the 1984 Act has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.’
Lord Steyn said: ‘Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay information may therefore afford a constable a reasonable ground to arrest. Such information may come from other officers: Hussien’s case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive ‘discretion’ to arrest or not as Lord Diplock described it in Mohammed-Holgate v. Duke [1984] A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.’ and
‘For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.’

Lord Hope of Craighead
Gazette 15-Jan-1997, Times 13-Dec-1996, [1996] UKHL 6, [1997] AC 286, [1997] 1 All ER 129, [1997] 2 WLR 1, [1996] NI 8, [1997] Crim LR 432, [1997] 1 Cr App Rep 447
House of Lords, Bailii
Prevention of Terrorism (Temporary Provisions) Act 1984 12(1)
England and Wales
Citing:
CitedCastorina v Chief Constable of Surrey CA 10-Jun-1988
Whether an officer had reasonable cause to arrest somebody without a warrant depended upon an objective assessment of the information available to him, and not upon his subjective beliefs. The court had three questions to ask (per Woolf LJ): ‘(a) . .
CitedHussien v Chong Fook Kam PC 7-Oct-1969
(Malaysia) The Board considered the propriety of an arrest by the police. Lord Devlin said: ‘An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when . .
DistinguishedMcKee v Chief Constable for Northern Ireland HL 1984
The House considered the state of mind of an officer required to allow an arrest under the section.
Held: Lord Roskill said: ‘On the true construction of section 11(1) of the statute, what matters is the state of mind of the arresting officer . .

Cited by:
CitedJarrett v Chief Constable of West Midlands Police CA 14-Feb-2003
The claimant sought damages for false imprisonment and assault after her wrongful arrest. She had waived her handbag at an officer investigating a disturbance and been arrested. The police said the arrest was lawful, she being suspected of common . .
CitedKeegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
MentionedCumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedAl-Fayed and others v Commissioner of Police of the Metropolis and others CA 25-Nov-2004
The appellants appealed from dismissal of their claims for wrongful imprisonment by the respondent. Each had attended at a police station for interview on allegations of theft. They had been arrested and held pending interview and then released. Mr . .
Appeal fromO’Hara v The United Kingdom ECHR 16-Oct-2001
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 5-1; Violation of Art. 5-3; Violation of Art. 5-5; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award
CitedCoudrat v Revenue and Customs CA 26-May-2005
The claimant appealed against dismissal of his claim for false imprisonment and malicious prosecution against the Customs and Excise. He was arrested and held accused of VAT fraud. Proceedings were discontinued. He had signed an application for . .
CitedSaik, Regina v HL 3-May-2006
The defendant appealed aganst his conviction for conspiracy to engage in moneylaundering. At trial he pleaded guilty subject to a qualification that he had not known that the money was the proceeds of crime, though he may have suspected that it . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedHough v Chief Constable of Staffordshire Police CA 14-Feb-2001
Where a constable arrested someone based upon information on the police national computer, he was not to be held accountable for wrongful arrest and false imprisonment, if the information upon which that had in turn been based, did not justify the . .
CitedCommissioner of Police of the Metropolis v Raissi CA 12-Nov-2008
The Commissioner appealed against an award of damages for false imprisonment. The claimant had been arrested shortly after a terrorist attack. The judge had held that they had no reasonable belief of his involvement. The Commissioner did not now . .
CitedAlexander, Farrelly and Others, Re Judicial Review QBNI 5-Mar-2009
Each claimant said that they had been wrongfully arrested, the arresting police officers having either failed to ask whether the arrest was necessary (Farrelly), or mistakenly concluding so.
Held: The Order now contained in regulation . .
CitedMercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
CitedArmstrong v Chief Constable of West Yorkshire Police CA 5-Dec-2008
The Chief Constable appealed against a finding that the claimant had been arrested for rape without reasonable grounds. A description of the rapist had been given which the claimant met in several respects, but from which he clearly differed in . .
CitedHayes v Merseyside Police CA 29-Jul-2011
The claimant had been arrested after a complaint of harassment. The officer then contacted the complainant who then withdrew his complaint. The officer went to visit the complainant to discuss it further. On his return the claimant was released from . .
CitedHowarth v Commissioner of Police of The Metropolis QBD 3-Nov-2011
howarth_cmpQBD2011
The claimant sought judicial review of a decision to search him whilst travelling to a public protest in London. A previous demonstration involving this group had resulted in criminal damage, but neither the claimant nor his companions were found to . .
CitedFitzpatrick and Others v The Commissioner of Police of The Metropolis QBD 11-Jan-2012
fitzpatrick_compolQBD2012
The claimants, two solicitors and their employer firm sought damages alleging trespass and malicious procurement by police officers in obtaining and executing search warrants against the firm in 2007 when they were investigating suspected offences . .
CitedMcCann v Crown Prosecution Service Admn 21-Aug-2015
Appeal by case stated against conviction for obstructing a police officer in the execution of his duty. The appellant had been protesting. She, correctly, thought the land to be a rivate highway. The police officer had thought it a public hghway and . .
CitedLane and Another, Regina v SC 11-Jul-2018
The defendants were to be tried for allegedly sending funds abroad to support terrorism. The court now considered the meaning of the phrase ‘reasonable cause to suspect’ in the context of the anticipated use of the funds: ‘Does it mean that the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Police, Criminal Practice

Leading Case

Updated: 20 November 2021; Ref: scu.135035

Regina v Connor and another; Regina v Mirza: HL 22 Jan 2004

Extension of Inquiries into Jury Room Activities

The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use of an interpreter was a mere ploy. In the other a juror reported that other jurors had refused to consider the evidence properly.
Held: ‘We shall never know’ fits in uneasily with modern conceptions of fairness and due process in the criminal justice system. Nevertheless, the common law should not be extended to permit enquiries into events in the jury room where they are not now permitted. That so many jury verdicts are majority verdicts indicates that there is often strong disagreement. ‘This is inevitably a fertile scenario for a dissident juror, maybe honestly, maybe not, to claim that the majority disregarded or misunderstood the judge’s direction, did not understand the facts, were not prepared to listen to argument or were prejudiced in some way.’ The rule against any investigation or inquiry into jury deliberations is a rule of admissibility; evidence about the deliberations of the jury is therefore inadmissible. The House made recommendations for possible improvements in practice in Crown Courts as to the instruction of juries.

Lord Steyn, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry
[2004] UKHL 2, Times 23-Jan-2004, [2004] 2 WLR 201, [2004] 1 AC 1118, [2004] HRLR 11, 16 BHRC 279, [2004] 2 Cr App R 8, [2004] 1 All ER 925
House of Lords, Bailii
European Convention on Human Rights 6.1 8
England and Wales
Citing:
CitedMcIlkenny v Chief Constable of the West Midlands CA 1980
The appellant had been convicted of an IRA bombing, causing loss of many lives. The appellant and his other co-accused alleged that their confessions had been induced by police violence. The trial judge ruled that their confessions were voluntary . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedGregory v The United Kingdom ECHR 25-Feb-1997
gregory_ukECHR1997
A judge’s direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial for the defendant. In discussing the protection of the secrecy of jury deliberations: ‘The court acknowledges that the rule governing the . .
CitedPilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
CitedEllis v Deheer 1922
The court heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury.
Held: A jury’s deliberations cannot be questioned. . .
CitedRegina v Qureshi CACD 23-Jul-2001
The appellant had been convicted of arson. A few days after the conviction, one juror reported concern about the behaviour of the jury.
Held: Authority was clear, that the court could not enter into an investigation of what had happened with . .
CitedStewart v Fraser 1830
The court asked under what circumstances it would be permitted to enquire as to a jury’s deliberations. The court approved the description in Hume’s Commentaries. . .
CitedRas Behari Lal v King-Emperor PC 1933
It was alleged that a juror had been unable to understand sufficient English to follow the trial.
Held: The rule against enquiring into the events in the jury room has an exception where there are external events which may have affected them. . .
CitedRegina v Thompson CCA 1962
There was tendered to the court what appeared to be a statement from a juror asserting that a majority of the jury had been ready to acquit until the foreman read out a list of the previous convictions of the accused.
Held: ‘This court is now . .
CitedRegina v Hood CCA 1968
An affidavit was submitted to say that a juror had known, independently, of the defendant’s previous convictions. The juror’s knowledge came from acquaintance with the mother of the prisoner’s wife.
Held: The conviction was upheld. Events in a . .
CitedDr John Roylance v The General Medical Council Oral judgment upon petition PC 19-Jan-1999
(Medical Act 1983) Discussions in camera by the professional conduct committee of the General Medical Council attracted public interest immunity and were not disclosable to the party before the council. . .
CitedAttorney General v New Statesman and National Publishing Company Ltd 1981
The Attorney General sought an order of contempt of court at common law following the publication in the ‘New Statesman’ of a juror’s account of significant parts of the jury’s deliberations in the course of arriving at their verdict in the trial of . .
CitedSwankie v H M Advocate 1991
Enquiries into a jury’s deliberations might be allowable as to extraneous events which might have affected them. . .
CitedRegina v Brandon CACD 1969
The court considered whether events outside the jury room having possible effects on deliberations might leave those open to enquiry. The jury bailiff had told the jury of the accused’s previous convictions. This was a grave irregularity, was . .
CitedRegina v BM and Another CACD 9-Dec-1996
A message was offered to one of the solicitors acting for a defendant from a relative of a juror after the trial.
Held: Rules against hearing of jury deliberations are wider than Contempt of Court Act. The court refused to commence any Young . .
CitedRegina v Young (Stephen) CACD 30-Dec-1994
Jury Consulting Ouija Board – Serious Irregularity
It had been suggested that during their overnight stay in a hotel after retiring to consider their verdict, some of the jurors had consultated an ouija board to consult with the deceased, and to ask him who had been his killer. Having believed that . .
CitedLalchan Nanan v The State PC 1986
(Trinidad and Tobago) The Board refused to admit evidence that four members of the jury, including the foreman, were acting under a misapprehension when they agreed to the verdict. However, the Board accepted the possibility that other cases might . .
CitedRegina v Millward CACD 7-Apr-1998
The defendant was tried for causing grievous bodily harm. After a majority direction, the jury returned, finding him guity. When asked if this was ‘the verdict of you all’, the formean replied ‘Yes’. The day after, he wrote to the judge to say that . .
CitedSander v The United Kingdom ECHR 9-May-2000
In a trial of an Asian defendant a juror complained that other jurors had made racist jokes, and feared that the defendant would not receive a fair trial. The judge obtained re-assurance from the jury that they would not so act, but did so in a way . .
CitedRegina v Sawyer 2001
(Canada) the court considered the reasons underlying the need for secrecy of a jury’s deliberations: ‘The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential . .
CitedRemli v France ECHR 23-Apr-1996
Hudoc Judgment (Merits and just satisfaction) Preliminary objection allowed (non-exhaustion) (Art. 14+6); Preliminary objection rejected (non-exhaustion) (Art. 6); Preliminary objection rejected (out of time) . .
CitedVaise v Delaval 1785
The court refused to receive affidavits from two jurors indicating that they had decided on their verdict by tossing a coin to resolve the issue. The rationale was that this was to protect them against self-incrimination for what he described as a . .
CitedHarvey v Hewitt 1840
It was alleged that the jurors had drawn lots to select their verdict: ‘No doubt . . that we cannot take the affidavit of a juryman stating his own misconduct, or that of his brother jurymen . . The affidavits here produced, however, are not made by . .
CitedRegina v Andrew Brown 1906
(New South Wales – Australia) Darley CJ said: ‘I have come to the conclusion that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or . .
CitedRegina v Armstrong HL 1922
The defendant was charged with the murder of his wife by giving her arsenic. His defence was that he had not administered the poison, although he admitted that he had arsenic which, he said, he used as a weed killer. He claimed that his wife had . .
CitedEllis v Deheer 1922
The court heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury.
Held: A jury’s deliberations cannot be questioned. . .
CitedHM Attorney-General v Associated Newspapers Ltd and Others HL 4-Feb-1994
Following the acquittal of a prominent politician on a charge of conspiracy to murder, the New Statesman magazine published an article, based on an interview with one of the jurors, which gave an account of significant parts of the jury’s . .
CitedThe Scottish Criminal Cases Review Commission for an Order etc SCS 29-Aug-2000
The court drew attention to the difference between the situation where the court itself makes inquiries as to events in the jury retiring room with the aim of bringing the court in question into contempt and that where it makes inquiries with the . .
CitedPirie v Caledonian Railway Company 1890
It was out of the question for the court to entertain any challenge after the trial to a verdict which had been delivered and agreed to by the jurors as their verdict. This was settled law in Scotland. . .
CitedBoston v W S Bagshaw and Sons (Note) CA 1966
Once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say that they meant something different: ‘The reasons for this are twofold: first, to secure the finality of . .
CitedRex v Wooller 1817
Some of the jurors, although present when the verdict was delivered, were so placed that they were not able to hear what the foreman said and were in fact in disagreement with it.
Held: The exclusionary rule had not been infringed by evidence . .
CitedRex v Thomas CCA 1933
The court refused to receive evidence that two Welsh-speaking jurors at Merioneth Quarter Sessions did not have sufficient knowledge of English to enable them to follow the proceedings. . .
CitedPullar v The United Kingdom ECHR 10-Jun-1996
The applicant P was an elected councillor. He faced a charge of corruption, being said to have have offered, for reward, to support a planning application made by M, a partner in a firm of architects, and C, a partner in a firm of quantity . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .

Cited by:
AppliedPractice Direction (Crown court: Guidance to Jurors) CACD 23-Feb-2004
Where jurors had concerns about the behaviour of fellow jurors, they should bring these to the attention of the judge during the trial rather than after. Jurors should be told of this, but not in such a way as to encourage inappropriate criticism of . .
CitedTransco Plc v Her Majesty’s Advocates HCJ 16-Sep-2004
A dwellinghouse had exploded, killing the occupants. The defendant was to be tried for alleged breaches of the 1974 Act in the gas supoplies to the house. The appellant complained that a jury trial would be an infringement of its rights, since a . .
CitedRegina v Smith, Regina v Mercieca HL 16-Feb-2005
A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
CitedRegina v Karakaya CACD 16-Feb-2005
No Internet Research for juror
After conclusion of the trial, the jury bailiff discovered notes in the jury room which indictated that the jury, after they had retired for their verdict, had read and discussed notes obtained by a juror from the Internet relating to the case.
CitedAttorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
CitedPintori, Regina v CACD 13-Jul-2007
The defendant appealed his conviction for possession of class A drugs, saying that the drugs found had belonged to somebody who had stayed at his flat whilst he had been away. One of the jurors later told a police officer that she had known through . .
CitedAttorney General v Fraill and Another CACD 16-Jun-2011
Juror’s use of Facebook was contempt
The court considered whether a juror had committed contempt of court. She had communicated with a defendant via Facebook, despite explicit warnings not to use the internet.
Held: Both juror and defendant in the trial had committed contempt of . .
CitedNunn v Suffolk Constabulary and Another Admn 4-May-2012
The claimant had been convicted of murder and his appeal had failed. He now sought disclosure of the forensic material held by the police to his own legal team.
Held: Permission to apply for review was granted, but the claim failed. ‘It is . .
CitedSeckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 20 November 2021; Ref: scu.192108

Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991): CA 1992

The section provided that the Court could order a legal practitioner to pay ‘wasted costs’, which were defined as costs incurred by a party ‘as a result of any improper, unreasonable or negligent act or omission on the part of any representative’. The barrister appealed against the order made.
Held: The court adopted the practice of not naming barristers subject to applications for wasted costs orders.
The Court recommended a three-stage test or approach when contemplating an order under s.19A. Macpherson J said: ‘A three stage test or approach is recommended when a wasted costs order is contemplated.
(i) Has there been an improper, unreasonable or negligent act or omission?
(ii) As a result have any costs been incurred by a party?
(iii) If the answers to (i) and (ii) are ‘Yes,’ should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?’
. . And ‘There is a clear need for any judge or court intending to exercise the wasted costs jurisdiction to formulate carefully and concisely the complaint and ground upon which such an order may be sought. These measures are draconian, and, as in contempt proceedings, the grounds must be clear and particular.’

Macpherson J
[1993] QB 293, [1992] 3 All ER 429, [1992] 3 WLR 662, (1992) 95 Cr App R 288
rosecution of Offences Act 1985 19A
Cited by:
CitedRegina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedReeves and Co, Solicitors, Regina v CACD 24-Mar-2011
The solicitors appealed against a wasted costs order. On the morning of the trial, they had produced further evidence leading to the collapse of the trial.
Held: The appeal succeeded. The solicitors had not been given notice of the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 19 November 2021; Ref: scu.200455

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: ‘The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable.’
The justifiability and fairness of such defences have to be judged in the particular context of each case. The defendant being found drunk in charge a car, he appealed a finding which relied upon his failure to prove his own intention not to drive. The burden of proof provision in section 5(2) of the Road Traffic Act 1988 imposes a legal burden on an accused who is charged with an offence contrary to section 5(1)(b) of that Act. The second defendant faced charges under the Terrorism Act 2000, of being a member of a proscribed organisation. The A G appealed his acquittal in the Court of Appeal. ‘Section 11(1), considered on its own, is a provision of extraordinary breadth. It would cover a person who joined an organisation when it was not a terrorist organisation or when, if it was, he did not know that it was. It would cover a person who joined an organisation when it was not proscribed or, if it was, he did not know that it was. It would cover a person who joined such an organisation as an immature juvenile. It would cover someone who joined such an organisation abroad in a country where it was not prosribed and came to this country ignorant that it was proscribed here’ Section 11(2) should be read down to impose only an evidential burden on a defendant.

Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell
[2004] UKHL 43, Times 14-Oct-2004, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976, [2005] RTR 13, (2004) 168 JP 669, (2004) 17 BHRC 339, [2004] All ER (D) 169
House of Lords, Bailii
Road Traffic Act 1988 5(2), Terrorism Act 2000 11(2), European Convention on Human Rights 6.2, Human Rights Act 1998
England and Wales
Citing:
CitedDaniel M’Naghten’s Case HL 1843
Daniel M’Naghten suffered from a mental disorder under which he believed that he was being persecuted by various bodies in authority, including the Tory Party. He sought to kill the Tory Prime Minister Sir Robert Peel, but shot and killed instead . .
CitedWoolmington v Director of Public Prosecutions HL 23-May-1935
Golden Thread of British Justice – Proof of Intent
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to . .
CitedRegina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
CitedMancini v Director of Public Prosecutions HL 1942
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
CitedRegina v Edwards 1975
On a charge of selling intoxicating liquor without a justices’ licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. The burden of establishing a statutory exemption by way of a . .
CitedJayasena v The Queen PC 1-Dec-2006
J appealed from his conviction of murder. He admitted the act but said that it was in self defence. He said that the Judge had misdirected the jury as to the burden of evidence on the issue of self defence.
Held: Lord Devlin said: ‘Their . .
CitedNimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
CitedWarner v Metropolitan Police Commissioner HL 1968
The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been found in possession of drugs.
Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of the thing . .
CitedSweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
CitedX v United Kingdom ECHR 1972
The defendant had been convicted of knowingly living on the earnings of prostitution contrary to section 30(1) of the Sexual Offences Act 1956.
Held: The Commission rejected as manifestly ill-founded the applicant’s challenge to this provision . .
CitedRegina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
CitedB (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
CitedBernard v France ECHR 23-Apr-1998
The presumption of innocence is one of the elements of the fair criminal trial required by article 6(1). Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 6-1; No violation of Art. 6-2 . .
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
CitedPham Hoang v France ECHR 25-Sep-1992
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 6-1; No violation of Art. 6-2; Violation of Art. 6-3-c; Pecuniary damage – claim rejected; . .
CitedAttorney General v Malta 10-Dec-1991
The applcant challenged a provision which imposed criminal liability on a director of a body which had committed a criminal offence ‘unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to . .
CitedH v United Kingdom ECHR 1985
The applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery.
Held: The penalty for this offence at the time it was committed was life imprisonment and thus no issue under Art. 7 (art. 7) arises . .
CitedBarbera, Messegua, and Jabardo v Spain ECHR 6-Dec-1988
ECHR The presumption of innocence would be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflected an opinion that he was guilty. The . .
CitedBrown v United Kingdom ECHR 2-Jul-2002
Article 6(2) of the Convention was not violated by a provision which enabled a newspaper proprietor or publisher to escape strict liability under section 4(5) of the Sexual Offences (Amendment) Act 1976 only if he proved, on the balance of . .
CitedBates v United Kingdom ECHR 16-Jan-1996
The claimant sought to challenge the rebuttable presumption as to the breed of a dog enacted in section 5(5) of the Act.
Held: The applicant had been entitled but, although represented, had failed, to call evidence to prove at trial that his . .
CitedTelfner v Austria ECHR 20-Mar-2001
ECHR The victim of a motor accident was able to identify the offending car, or even whether the driver was male or female. The car was owned by the applicant’s mother, and he denied driving at the time. There was . .
CitedHeaney and McGuinness v Ireland ECHR 21-Dec-2000
Hudoc The claimants challenged anti-terrorist legislation introduced by the respondent. They complained that it violated the article 6(1) right of the applicants to remain silent and not incriminate themselves, . .
CitedPorras v Netherlands ECHR 18-Jan-2000
The applicant was convicted of intentionally importing cocaine and he complained that the burden of proof had been reversed by imposing on him an obligation, which he found impossible to discharge, to prove that he was not and could not have been . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina v Lambert; Regina v Ali; Regina v Jordan CACD 14-Sep-2000
Each defendant was charged under a statute which provided a defence if they could prove a certain element. They complained that this was a breach of their human rights. The complaint was rejected. It would be wrong to impose a burden of proof on a . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedJanosevic v Sweden ECHR 23-Jul-2002
Complaint was made that tax surcharges were applied in a way which was incompatible with article 6(2) because ‘an almost insurmountable burden of proof’ was imposed on the taxpayer.
Held: There was no need for the Swedish authorities to prove . .
CitedSelvanayagam v United Kingdom ECHR 12-Dec-2002
Any presumption of law which had operated against the applicant had been within reasonable limits, had taken account of the importance of what was at stake and had maintained the rights of the defence. . .
CitedRegina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedRegina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004) CACD 29-Apr-2004
The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which . .
CitedRegina 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 . .
CitedRegina v Gleeson CACD 3-Oct-2001
The Court of Appeal should not tinker with sentences passed by lower courts in the absence of exceptional circumstances, or where they were wrong in principle, or were manifestly excessive. Here a sentence of 30 months for a professional and . .
Wrongly DecidedRegina v Clive Louden Carass CACD 19-Dec-2001
When a defendant was accused of an offence under the section, and wished to raise a defence under sub-section 4, the duty of proof placed on him by the sub-section amounted to a duty to bring sufficient evidence to raise the defence, and the section . .
Appeal fromSheldrake v Director of Public Prosecutions Admn 24-Feb-2003
The defendant challenged the application of the section, under which he was deemed to have intended to drive a vehicle whilst under the influence of alcohol, unless he could prove it was not his intent to drive, saying this infringed his right to a . .
CitedDirector of Public Prosecutions v Watkins QBD 1989
The offence in section 5 does not require proof that a defendant is likely to drive when accused of being in charge of a motor vehicle whilst unfit through drink or drugs: ‘In regard to that section two broad propositions are clear. First, the . .
Appeal fromAttorney General’s Reference No 4 of 2002 CACD 21-Mar-2003
The defendant had been tried for an offence under the Act of being a member of a proscribed organisation, and professing membership of Hamas. At trial the crown accepted an evidential burden, that the offence had to be read down to comply with the . .

Cited by:
CitedDirector of Public Prosecutions v Barker Admn 19-Oct-2004
Driving whilst disqualified – ban expired but no test taken – burden of evidence . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedRegina v G CACD 12-Apr-2006
The defendant pleaded guilty to the rape of a twelve year old girl on the agreed basis that he had believed her to be 15, but had been advised that given her age, his belief was immaterial. He now appealed saying that the presumption infringed his . .
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
CitedDirector of Public Prosecutions v Wright; Regina (Scott) v Taunton Deane Magistrates Court Admn 4-Feb-2009
The court heard appeals from rulings under the 2004 Act.
Held: In section 1, the hunting of a wild mammal did not include the search for an animal with a view to flushing it from cover. As to the exemptions, the operation of the 1980 Act and . .
CitedWatkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
CitedWebster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
CitedTovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
CitedTovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
CitedGC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
CitedWaya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
CitedChild Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
CitedWood v Revenue and Customs UTTC 25-Jul-2016
UTTC INCOME TAX – discovery assessments made against taxpayer relying on extended time limits on grounds of deliberate conduct – death of taxpayer – whether assessments should be discharged on grounds personal . .
CitedShepherd v The Information Commissioner CACD 18-Jan-2019
The defendant had been part of an organisation subject to an investigation of child sex abuse. He was cleared of involvement, but had disseminated the confidential reports containing sensitive personal data to support his contention that the process . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Crime, Human Rights

Updated: 19 November 2021; Ref: scu.216465

Regina v Gray: CACD 2004

The court gave guidance on appropriate good character directions where a defendant had old convictions.

Rix LJ
[2004] EWCA Crim 1074
England and Wales
Cited by:
CitedPayton, Regina v CACD 26-May-2006
The defendant appealed a conviction of possession of 66 grams of cannabis with intent to supply. Also found were a large number of small bags and pounds 7,000 in cash. The defendant said the cannabis was for his personal use, and the equipment had . .
CitedMohammed, Regina v CACD 13-Jul-2005
The court granted permission to appeal against a conviction for murder on grounds that related to the judge’s summing up in respect of provocation: ‘Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 19 November 2021; Ref: scu.242252

Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn: CA 1968

Answerability of Chief Constables

The constitutional status of the Commissioner had never been defined, either by statute or by the courts. By common law police officers owe to the general public a duty to enforce the criminal law. The court considered the extent to which a court could interfere with decisions made by a Chief Constable.
Lord Denning MR said: ‘Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide.’
. . And ‘No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement is on him. He is answerable to the law and to the law alone.’
The decision as to the offence for which a person is to be prosecuted is a matter for the prosecuting authority, which has a wide discretion in the matter.

Lord Denning MR
[1968] 2 QB 118, [1968] 1 All ER 763, [1968] 2 WLR 893
England and Wales
Cited by:
CitedRegina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
CitedRegina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
CitedBrooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
CitedDepartment for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
CitedNorth Yorkshire Police Authority, Regina (on The Application of) v The Independent Police Complaints Commission Admn 8-Jul-2010
No Review of IPCC’s Decision to Investigate
A complainant wanted the police force to investigate his mother’s treatment in a care home. When a decision was made that no criminal activity had been revealed, he asked the Police Authority to investigate, but they declined saying that the issue . .
CitedRegina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .

Lists of cited by and citing cases may be incomplete.

Police, Criminal Practice

Updated: 19 November 2021; Ref: scu.183033

Peruzzo And Martens v Germany (Dec): ECHR 4 Jun 2013

ECHR Article 8-1
Respect for private life
Taking and retention of DNA profiles of convicted criminals for use in possible future criminal proceedings: inadmissible
Facts – The first applicant had been convicted of several drug-related offences when a district court ordered cellular material to be taken from him with a view to determining his DNA profile for identification purposes in any future criminal proceedings. This decision was reached in view of the seriousness of the offences he had committed and his negative criminal prognosis. In the second applicant’s case a district court ordered the taking of DNA samples on account of his repeated commission of violent offences. Pursuant to domestic law any cellular material obtained was to be used only for the purpose of establishing a DNA profile. The identity of the individual from whom the sample was obtained could not be disclosed to the experts charged with drawing up the profile, and they were furthermore under an obligation to take adequate measures to prevent any unauthorised use of any material examined. The cellular material itself had to be destroyed without delay once it was no longer needed for the purpose of establishing the DNA profile. Only the DNA profiles extracted from the cellular material could be kept in the Federal Criminal Police Office’s database and then only for a maximum of ten years, subject to regular review.
Law – Article 8: In recent years DNA records had doubtless made a substantial contribution to law enforcement and the fight against crime. Nevertheless, the protection of personal data was of fundamental importance for the enjoyment of the right to respect for private life. The domestic law therefore had to afford appropriate safeguards to prevent any use of personal data which might be inconsistent with the guarantees of Article 8. In the case of S. and Marper v. the United Kingdom, which concerned the retention of the DNA records of two applicants who had not been convicted of a criminal offence, the Court had been struck by the blanket and indiscriminate nature of the power of retention of DNA records in England and Wales that enabled the material to be retained without limit of time and irrespective of the nature or gravity of the offence or the personal circumstances of the individual concerned. However, the applicants’ cases were to be distinguished from that case for several reasons. Firstly, under the domestic law DNA records could only be taken, stored and retained from persons who had been convicted of serious criminal offences and were likely to be the subject of criminal proceedings in the future. The domestic courts had based their findings that the offences committed by the applicants had reached the requisite threshold of gravity on the particular circumstances of each case and had provided relevant and sufficient reasons for their assumption that criminal investigations with respect to similar offences were likely to be conducted against them in the future so that the taking of DNA samples and the retention of the extracted DNA profiles were justified and proportionate. Furthermore, the Court was satisfied that the domestic law afforded appropriate safeguards against the blanket and indiscriminate taking and retention of DNA samples and profiles and adequate guarantees of the effective protection of retained personal data from misuse and abuse. Consequently, the domestic rules on the taking and retention of DNA material from persons convicted of offences reaching a certain level of gravity as applied in the case of the applicants had struck a fair balance between the competing public and private interests and fell within the respondent State’s acceptable margin of appreciation.
Conclusion: inadmissible (manifestly ill-founded).
(See also S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, 4 December 2008, Information Note no. 114)

7841/08 57900/12 – Legal Summary, [2013] ECHR 743
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 18 November 2021; Ref: scu.514308

Newcombe v Crown Prosecution Service: Admn 20 Jun 2013

The applicant had been charged with assault. On the day of the trial, the prosecution offered no evidence. The magistrate awarded costs from central funds, but limited it to the day of the hearing. The applicant appealed by case stated.
Held: Though the district judge had a discretion in making his order, such discetion had its limits, and the decision fell outside them: ‘The district judge imposed the restriction on entitlement to costs because in his view the Appellant had acted unreasonably in not indicating earlier than the day of the trial that he was prepared to be bound over to keep the peace.’ That view was untenable.

Hickinbottom J, Sir John Thomas P QBD
[2013] EWHC 2160 (Admin)
Bailii
England and Wales
Citing:
CitedEmohare v Thames Magistrates Court Admn 12-Mar-2009
The circumstances that lead to a defendant losing his entitlement to a defendant’s costs order if he is successful in his defence are narrow, to reflect the need to respect the presumption of innocence at common law and under Article 6 of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Costs

Updated: 18 November 2021; Ref: scu.514296

Allen v The United Kingdom: ECHR 30 Mar 2010

The applicant said that the fact that she had not been allowed to attend a bail hearing in person had infringed her article 5-3, 5-4, and 6 rights. She had been arrested and held in custody. The magistrates granted her bail, but she was held in custody after the prosecution immediately appealed. She had been brought late to the court from prison, but the judge had still refused to allow her to attend. She said that in such a matter a judge should properly see a person himself and make his own assessment.
Held: The respondent’s justification was insufficient. ‘the relevant domestic law qualifies a prosecution appeal against bail as a re-hearing of the application for bail, thereby entitling the judge hearing the appeal to remand the accused in custody or to grant bail subject to such conditions as he may deem appropriate . . It follows that the applicant should have been afforded the same guarantees at the prosecution’s appeal as at first instance. Though the Court is mindful of the inherent logistical difficulties involved in ensuring a detainee’s personal attendance at a court hearing, it finds no evidence of any compelling reasons in the present case which might have rendered the applicant’s presence undesirable or impracticable. To the contrary, it is accepted that the applicant’s representatives had made arrangements for her to be present at the court building on the day of the prosecution appeal hearing, and that no inconvenience would have been caused in allowing her to attend.’

Lech Garlicki, P
[2010] ECHR 420, [2011] Crim LR 147, (2010) 51 EHRR 22, 18837/06
Bailii
European Convention on Human Rights 5-3 5-4 6, Criminal Procedure Rules 2005 SI 2005/384
Citing:
Statement of factsAllen v The United Kingdom ECHR 2-May-2006
Statement of facts . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 17 November 2021; Ref: scu.513538

Rex v Kritz: 1949

The House discussed the extent of the direction required to be given to a jury as to the standard of proof required: ‘The only other point which has been seriously argued is that because the learned Common Sergeant told the jury that they must be reasonably satisfied, and did not use the words ‘satisfied beyond reasonable doubt’, he was not stating sufficiently the onus of proof. It would be a great misfortune, in criminal cases especially, if the accuracy or inaccuracy of a summing up were to depend upon whether or not the Judge or the Chairman had used a particular formula of words. It is not the particular formula of words that matters; it is the effect of the summing up. If the jury are charged whether in one set of words or in another and are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the learned Judge uses one form of language or whether he uses another is neither here nor there. In our opinion, there was a perfectly fair and a perfectly proper summing up by the learned Common Sergeant in this case. We do not think that any jury could have been left in any doubt as to what was their duty. Juries, in my humble opinion, are not such fools as they are very often thought to be. They know when they have been a short time in the jury box that it is the duty of the prosecution to prove the case and that they have to be fully and thoroughly satisfied, and they very seldom want guidance on that point. It is right that they should have it. It is right that they should be reminded that the onus is on the prosecution all the way through the case. It is right that they should be reminded in a criminal case that they must be fully satisfied of the guilt of the accused person and should not find a verdict against him unless they feel sure. That is the direction which I myself constantly give to juries when I am at assizes or at the Old Bailey. When once a judge begins to use the words reasonable doubt and tries to explain what is a reasonable doubt and what is not, he is much more likely to confuse them than if he tells them in plain language: ‘It is the duty of prosecution to satisfy you of the mans guilt’. I am not saying that the learned Common Sergeant used that formula of words, nor am I saying that it is to be preferred before all others, but what I do say is, and I am sure I can say it with the full assent of my brethren, that it is not the actual formula used that matters, but the effect of the summing up, and if the effect of the summing up is to convey to the jury what is their duty, that is enough.’

Lord Goddard
(1949) 33 Cr AppR 169, [1950] 1 KB 82
England and Wales
Cited by:
CitedRegina 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. . .
CitedRegina v Hepworth and Fearnley 1955
Lord Goddard discussed again the direction to the jury as to the standard of proof: ‘I think it is very unfortunate to talk to juries about reasonable doubt, because the explanations given of what is and what is not a reasonable doubt are so very . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 November 2021; Ref: scu.192062

Regina v Coutts: HL 19 Jul 2006

The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent duty to leave that option to the jury.
Held: The appeal succeeded. The judge should have left a manslaughter verdict to the jury. His failure to do so, although fully understandable in the circumstances, was a material irregularity. ‘The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. ‘
Lord Rodger: ‘These authorities help to identify the attitude which an appeal court must adopt in a case such as this, despite any justifiable feeling of distaste for the appellant’s approach. If the court concludes that there was a material misdirection which rendered the jury’s verdict unsafe, then it must give effect to that conclusion and quash the conviction. An unsafe verdict cannot stand just because the appellant was partly to blame for its being unsafe. ‘

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Lord Mance
[2006] UKHL 39, [2006] 1 WLR 2154, Times 24-Jul-2006, [2007] 1 CAR 60, [2006] 4 All ER 353, [2006] Crim LR 1065, [2007] 1 Cr App R 6
Bailii
Criminal Law Act 1967 6(2) 6(3)
England and Wales
Citing:
Appeal fromCoutts, Regina v CACD 21-Jan-2005
The defendant appealed his conviction for murder, saying that the judge should have left to the jury the alternative conviction for manslaughter. The victim had died through strangulation during a sexual assault by the defendant. He said it had not . .
CitedRegina v Fairbanks CACD 1986
The defendant complained that the judge had not left an alternate verdict of careless driving to the jury where he had been charged with driving a motor vehicle on the road recklessly.
Held: The conviction was quashed.
Mustill LJ said: . .
CitedHunter, Moodie v The Queen PC 8-Oct-2003
PC (Jamaica) The defendants appealed against their convictions for capital murder.
Held: The appeals were allowed, and non-capital convictions substituted. It is not enough to comply with section 2(2), for . .
CitedAlexander Von Starck v The Queen PC 28-Feb-2000
(Jamaica) The defendant had fatally stabbed a woman. On arrest, he admitted killing her and that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the . .
CitedRegina v Hopper CCA 1914
Lord Reading CJ said: ‘We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of . .
CitedMancini v Director of Public Prosecutions HL 1942
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
CitedBullard v The Queen PC 1957
The question was whether there was evidence on which the jury could have found a verdict of manslaughter on grounds of provocation rather than the verdict of murder which had been returned.
Held: There is naturally a tendency for an appellate . .
CitedRegina v Porritt CCA 1961
Ashworth J said: ‘As has already been said, the issue of manslaughter was not raised at the trial, but there is ample authority for the view that notwithstanding the fact that a particular issue is not raised by the defence, it is incumbent upon the . .
CitedShaw and Campbell, Regina v CANI 8-Jun-2001
The defendant appealed his conviction for murder saying the judge should have left the alternative charge of having assisted offenders to the jury.
Held: Referring to Fairbanks: ‘It was argued on behalf of the Crown that this test was not . .
CitedRegina v Cox (Andrew Mark) CACD 12-Apr-1995
The Court of Appeal has the power to apply the proviso preserving a conviction despite the failure of the judge at trial to mention the defence of provocation. . .
CitedRegina v Dhillon CACD 27-Nov-1996
The defendant appealed against his conviction for murder saying that the defence of provocation had not been left to the jury. The trial judge had thought that there should be a provocation direction, but neither prosecuting nor defence counsel . .
CitedRex v Parrott 1913
Phillimore J considered the possibility of allowing a conviction for a lesser offence than that charged and said: ‘There may be cases where, in the interests of the prisoner, a judge ought to do so; there are certainly many cases where the interests . .
CitedRegina 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 . .
CitedRegina v Maxwell CACD 1988
The defendant admitted paying two others to burgle his partner’s home, but said he had not anticipated violence, and appealed against his conviction for robbery, saying the judge should have left the alternative verdict to the jury. The jury, during . .
CitedRegina v Maxwell CACD 11-May-1994
When directing the jury, the judge should mention all alternative and appropriate lesser offences with explanations. The possibility of a conviction under section 47 for assault occasioning actual bodily harm should be offered to a conviction under . .
CitedMraz v The Queen 1995
(High Court of Australia) Fullagar J: ‘A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them.’ . .
CitedRegina v Rennie Gilbert PC 21-Mar-2002
(Grenada) The defendant had successfully appealed a conviction for attempted rape. He said that he had been convicted on the uncorroborated evidence of the complainant, and that the judge should have given an appropriate warning to the jury. The . .
CitedRegina v Emmett CACD 18-Jun-1999
The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm, and were said to be consensual, but clearly did risk harm. On the first occasion he tied a plastic bag over the head of . .
CitedAttorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
CitedRegina v Larkin CCA 1943
There may be involuntary manslaughter, if the accused intentionally did an act which was unlawful and dangerous and that act inadvertently caused death. Humphreys J said: ‘Where the act which a person is engaged in performing is unlawful, then if at . .
CitedRegina v Maxwell HL 1990
The defendant had hired two men to enter his former partner’s house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution would not add a count of burglary . .
CitedDirector of Public Prosecutions v Newbury and Jones HL 12-May-1976
The two teenage defendants pushed a stone slab from a bridge onto an oncoming train. The slab went through the window and killed the guard. They appealed convictions for manslaughter.
Held: The appeals were dismissed. An unlawful act can found . .
CitedPemble v The Queen 1971
(High Court of Australia) Barwick CJ: ‘Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair . .
CitedRegina v Church CCA 1965
The defendant was convicted of manslaughter. After he had been unable to satisfy his female victim sexually, he had become angry and had seriously assaulted her. He mistakenly thought she was dead and tipped her in the river where she drowned.
CitedKeeble v United States 1971
(US Supreme Court) Brennan J said: ‘Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established . .
CitedGillard v The Queen 2003
(High Court of Australia) Hayne J explained the effect of the majority decision in Gilbert: ‘In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s . .
CitedRegina v Jackson 1993
(Supreme Court of Canada) McLachlin J: ‘It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I . .
CitedRegina v Hopper CCA 1914
Lord Reading CJ said: ‘We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of . .
CitedKwaku Mensah v The King PC 1946
(West Africa) The judge had failed to give a direction on provocation in a murder case where the issue properly arose.
Lord Goddard said: ‘But if on the whole of the evidence there arises a question whether or not the offence might be . .
CitedDirector of Public Prosecutions v Daley PC 1980
(Jamaica) The defendants had an argument with the deceased, who ran from them, tripped on a concrete ramp and fell. He died a few days later. The accused had thrown stones at him while he was running from them. The prosecution alleged that he died . .
CitedMuir v HM Advocate 1933
The jury in a murder trial had not been directed on the possible verdict of culpable homicide on the ground of diminished responsibility.
Held: The defendant’s appeal was allowed. Lord Sands said: ‘A brutal crime had been committed, and a . .

Cited by:
CitedSt Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
CitedRegina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
See alsoZipher Ltd v Markem Systems Ltd PatC 16-Jan-2007
. .
See AlsoYeda Research and Development Company Ltd v Rhone-Poulenc Rorer International Holdings Inc and others HL 24-Oct-2007
The claimants said that the defendant had misused confidential information sent to him to found an application for a patent, claiming wrongly to have been its inventor. The claimant appealed a refusal by the court to allow amendments to the . .
CitedWhaley and Another v Lord Advocate HL 28-Nov-2007
The House considered claims that the 2002 Act, which set out to make unawful the hunting of wild mammals with dogs unlawful, infringed the claimants’ human rights, in that it contravened international treaties requiring the support for traditional . .
CitedFoster, Regina v; Regina v Newman etc CACD 30-Nov-2007
In each case the defendant appealed his conviction saying that since the defence which he ran included an admission of a lesser offence, the court should have left a conviction for that lesser offence as an alternative for the jury.
Held: The . .
CitedSerrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .
CitedKempster, Regina v CACD 7-May-2008
The defendant appealed against his conviction saying that evidence of an ear-print expert had been wrongly admitted.
Held: The court rejected an argument based on Coutts. Ear-print evidence can be admitted provided the experts were . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 November 2021; Ref: scu.243336

Regina (Kenneally) v Snaresbrook Crown Court: Admn 27 Nov 2001

That a mentally disturbed defendant may cause embarrassment by his behaviour in court was no reason for him not to be brought to court to be present when an order detaining him under the Act was to be made. The words of section 51(5) must be construed restrictively, and it was not to be applied where all that was involved was possible inconvenience for the court and distress for the detainee. The court has power to quash an order made by the Crown court where it is made without jurisdiction and there is no alternative remedy. The word ‘inappropriate’ must be construed restrictively: ‘A high degree of disablement or relevant disorder must be present. The section does not apply in a situation in which all that is involved is possible inconvenience for the court and inevitable distress for the defendant and others likely to be concerned in a trial, if a trial is held.’

Lord Justice Pill, Mrs Justice Rafferty and Mr Justice Tomlinson
Times 17-Dec-2001, [2001] EWHC Admin 968, [2002] QB 1169, [2002] 2 WLR 1430, [2002] MHLR 53, [2002] ACD 46,
Bailii
Mental Health Act 1983 51
England and Wales
Cited by:
CitedRegina (Crown Prosecution Service) v Guildford Crown Court QBD 4-Jul-2007
The defendant had been convicted of rape. The judge had decided that an extended sentence was appropriate, and added four years to the seven year sentence under section 227. However the judge had no jurisdiction to do so, he retired on the same day . .
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Health

Updated: 17 November 2021; Ref: scu.167113

Regina v Miao: CACD 17 Nov 2003

The defendant appealed his conviction for murder. His main defence had been that there had been no intention to kill, but the judge had refused to leave to the jury the possibility of provocation.
Held: There was evidence of potentially provoking conduct sufficient to be left to the jury, but that there was only a speculative possibility that the defendant may have lost his self-control. There was no evidence of a frenzied attack. The two defences were inconsistent, and the evidence of whether the defendant had been provoked was tenuous. Whether a defendant had been provoked should be treated on the same basis as whether the victim had caused provocation. The case of Rossiter had been overtaken by Acott.
Rose LJ VP said: ‘It is for the judge to decide if there is evidence of provoking conduct, a loss of self-control. If there is sufficient evidence it is a matter for the jury. If there is insufficient material to find as a reasonable rather than as any speculative possibility, that there was provoking conduct and loss of self-control, there is no issue that the judge should not leave provocation to the jury. The trial judge is in many cases better placed than this court to assess the quality and effect of the evidence which has been placed before the jury.’

Rose LJ, Leveson, Tugendhat JJ
Times 26-Nov-2003, Gazette 05-Feb-2004, [2003] EWCA Crim 3486
England and Wales
Citing:
AppliedRegina v Acott HL 12-Mar-1997
Provocation is not an issue in murder until evidence is given which takes the issues beyond a mere refuted cross examination. If there was ‘insufficient material for a jury to find that it is a reasonable possibility that there was specific . .
CitedRegina v Rossiter CACD 1992
The defendant was charged with a murder. The very manner of the killing suggested that he was at the time of the killing in a state of uncontrolled frenzy. However, Russell LJ said: ‘We take the law to be that wherever there is material which is . .

Cited by:
CitedVan Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
CitedSerrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 November 2021; Ref: scu.188247

SXH v Crown Prosecution Service: CA 6 Feb 2014

The claimant challenged being charged with an offence under the 2006 Act, saying that it engaged and interfered with her Article 8 Human Rights. A Somali national, she fled, claiming asylum here, but her travel documents were found to be false. All agreed that she could not have obtained valid documents in Somalia.
Held: Her appeal failed.
Pitchford LJ reviewed the authorities and accepted that article 8 could apply to a law criminalising behaviour which itself amounted to the exercise of a right protected by article 8, but section 25 of the 2006 Act did not interfere with rights protected by that article. It did not impede the appellant’s ability to claim asylum, and the possession of false identity documentation with intent to deceive at the point of border control was not an expression of personal autonomy.
He accepted that a decision to prosecute for an offence under section 25 might fall within article 8 if, for example, the prosecutor knew that there was no proper basis for the prosecution, but article 8 was not engaged by a decision to prosecute for a Convention-compliant offence in the absence of extreme circumstances. If, however, article 8 was engaged, the concession made that the appellant’s case passed the evidential test meant that in the absence of compelling circumstances personal to the appellant the public interest in prosecution was obvious. The outcome would be a matter for judicial decision and it was not for the prosecutor, when deciding to prosecute, to concern herself with questions of remand or likely sentence, which would be for the court to determine. He concluded therefore that if article 8 was engaged, there was no breach.

Pitchford LJ, Beatson LJ, Gloster LJ
[2014] EWCA Civ 90, [2014] 1 WLR 3238, [2014] WLR(D) 53
Bailii, WLRD
Identity Cards Act 2006 25, European Convention on Human Rights 8, Immigration and Asylum Act 1999 31
England and Wales
Cited by:
Appeal fromSXH v The Crown Prosecution Service (CPS) SC 11-Apr-2017
The Court was asked: ‘Does a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 17 November 2021; Ref: scu.521051

Marian Balaz: ECJ 18 Jul 2013

ECJ Opinion – Police and judicial cooperation in criminal matters – Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties – ‘Opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’

Sharpston AG
C-60/12, [2013] EUECJ C-60/12, [2013] EUECJ C-60/12
Bailii, Bailii

European, Criminal Practice

Updated: 17 November 2021; Ref: scu.513412

In re S (a Child) (Identification: Restrictions on Publication): HL 28 Oct 2004

Inherent High Court power may restrain Publicity

The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to be applied to avoid his identity being known. The trial judge made an order under the 1933 Act, but this was overturned, lastly at the Court of Appeal.
Held: The case involved the conflict between articles 8 and 10. ‘the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court.’ . . ‘I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8 . . earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the ECHR.’
Though invoked on this occasion in support of a child, the result of granting an order would not be so restricted in future cases, the scope of the order might be increased, the result for the media may be to lessen their interest, and therefore the part they play. Last the need to challenge such proceedings may be prohibitively expensive for many news organisations, particularly local. No one Convention right takes automatic precedence over another. The appeal was denied.
Lord Steyn identified four propositions: ‘1. Neither Article (8 nor 10) as such has precedence over the other
2. Where values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary
3. The justifications for interfering with or restricting each right must be taken into account
4. The proportionality test must be applied to each’.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, [2004] UKHL 47, Times 29-Oct-2004, [2005] 1 FLR 591, [2005] 1 AC 593, 17 BHRC 646, [2004] 4 All ER 683, [2005] Crim LR 310, [2004] 3 FCR 407, [2005] HRLR 5, [2004] 3 WLR 1129, [2005] EMLR 11, [2005] UKHRR 129, [2005] EMLR 2
House of Lords, Bailii
Children and Young Persons Act 1933 39, European Convention on Human Rights 8 10
England and Wales
Citing:
At first instanceRe S (A Child) (Identification: Restrictions on Publication) FD 19-Feb-2003
A trial judge had refused an order that steps should not be taken so as to allow S to be identified in reporting the trial of his mother for the alleged murder of his brother by salt poisoning.
Held: The court dismissed the application for an . .
Appeal fromIn re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
CitedPretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
CitedAxen v Germany ECHR 8-Dec-1983
‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, . .
CitedWerner v Austria ECHR 24-Nov-1997
Hudoc Judgment (Merits and just satisfaction) Preliminary objection joined to merits (non-exhaustion); Preliminary objection rejected (non-exhaustion); Pecuniary damage – claim rejected; Costs and expenses . .
CitedDiennet v France ECHR 26-Sep-1995
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 (publicly); No violation of Art. 6-1 (impartiality); Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedBakova v Slovakia ECHR 12-Nov-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings . .
CitedMachous v The Czech Republic ECHR 12-Jul-2001
. .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedRiepan v Austria ECHR 14-Nov-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention . .
CitedIn re X (A Minor) (Wardship: Jurisdiction) FD 1975
A stepfather made the child a ward of court in order to try to stop publication of a book containing passages about the sex life of her deceased father. The jurisdiction to order that a child’s name should not be made known, is not exercisable at . .
CitedIn re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .
CitedR (Mrs) v Central Independent Television Plc CA 17-Feb-1994
The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the . .
CitedRe H (Minors) (Injunction: Public Interest) 1994
A father with whom children were living was restrained from publicising his sex change in order to protect the children from harassment. The injunction was in contra mundum form. . .
CitedRe C (Wardship: Medical Treatment) (No 2) CA 1989
The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the . .
CitedIn re M and N (Minors) (Wardship: Publication of Information) CA 1990
The court considered whether to order that a child’s name be not published where the decision to publish would not affect the way in which the child is cared for, the child’s welfare is relevant but not paramount and must be balanced against freedom . .
CitedIn Re R (Wardship: Restrictions on Publication) CA 1994
The parents had separated and the child made a ward of court. The mother had care and control and the father had access. The father abducted the child to Israel but she was recovered. The father was extradited to stand trial here. He sought . .
CitedIn re W (A Minor) (Wardship: Restrictions on Publication) CA 1992
The court considered the risks of a child being identified despite restrictions on disclosure: ‘It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to . .
CitedReynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .

Cited by:
CitedGreene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
CitedW v Westminster City Council and Others QBD 9-Dec-2004
The claimant sought to bring an action for defamation based upon communications made in a child protection conference. The reference was in a Report for Conference to be held pursuant to the duties imposed on local authorities by the Children Act . .
CitedEnergy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
CitedE v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
CitedGazette Media Company Ltd. and Others, Regina (on the Application Of) v Teeside Crown Court CACD 26-Jul-2005
The claimants appealed an order restricting their reporting of a criminal case so as to identify the defendant.
Held: Orders preventing the naming of a defendant in order to protect associated children are unlikely to enhance any child . .
CitedA Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
CitedBritish Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
CitedMersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
CitedNorfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
CitedX and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
CitedAssociated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
CitedMersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
CitedLord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
CitedLM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
CitedMurray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
CitedBritish Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
CitedMosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
CitedTimes Newspapers Ltd v Secretary of State for the Home Department and AY Admn 17-Oct-2008
The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open . .
CitedTimes Newspapers Ltd and others v Regina and others CMAC 24-Oct-2008
Anonymity not to be by secret trial
The newspaper appealed against an order for the defendant soldiers’ trial to be held in camera.
Held: Section 94(2) could not be used to provide anonymity. The court relied on its common law powers under which: ‘for us to be entitled to make . .
CitedTimes Newspapers Ltd and others v Soldier B CACD 24-Oct-2008
(Court’s Martial Appeal Court) The newspaper appealed against an order under section 94 of the 1955 Act restricting the identification of the defendants. The judge had said there would be a threat to both the safety of the defendants and as to the . .
CitedClift v Slough Borough Council and Another QBD 6-Jul-2009
clift_sloughQBD09
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
CitedMetropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
CitedAttorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
CitedFlood v Times Newspapers Ltd QBD 2-Oct-2009
The defendant had published a story in its newspaper. At that time it attracted Reynolds qualified privilege. After the circumstances changed, the paper offered an updating item. That offer was rejected as inadequate.
Held: The qualified . .
CitedChild X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedDoctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
CitedDoctor A and Others v Ward and Another FD 9-Feb-2010
. .
CitedIn re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .
CitedA v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
CitedFlood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .
CitedRST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
CitedNtuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
CitedMoney v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .
CitedETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
CitedCTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
CitedTSE and ELP v News Group Newspapers Ltd QBD 23-May-2011
The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach . .
CitedGoodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
CitedCommissioner of Police of The Metropolis and Another v Times Newspapers Ltd and Another QBD 21-Jun-2011
The defendant had published an article based upon information said to be confidential and leaked from the claimant’s offices. A defamation claimant was suing the defendant in defamation, and the defendant wished to rely on the information in its . .
CitedIn re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
CitedFerdinand v MGN Limited QBD 29-Sep-2011
fedinand_mgnQBD2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .
CitedDoncaster Metropolitan Borough Council v Watson FD 1-Sep-2011
doncaster_watsonFD2011
The defendant applied to be allowed to purge her contempt of court.
Held: The court first pointed out that the defendant had not been sentenced in secret, but in open court. The contempt had been serious leading to the identity of the child . .
CitedFlood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
CitedMcClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .
CitedA, Regina (on The Application of) v Lowestoft Magistrates’ Court Admn 26-Mar-2013
A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B . .
CitedLondon Borough of Barnet v X and Another FC 18-Apr-2006
Barnet County Court – Munby J considered the publication of children proceedings: ‘ In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in . .
CitedH v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
CitedV v Associated Newspapers Ltd and Others CoP 25-Apr-2016
A patient had earlier been given protection by the anonymisation of her case. She had since died, and the court considered whether the order should be continued to protect members of the family.
Held: The Court of Protection had jursidiction . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedPJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
CitedOPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
CitedWeller and Others v Associated Newspapers Ltd CA 20-Nov-2015
The three children of a musician complained of the publication of photographs taken of them in a public place in California. . .
CitedPNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
CitedRegina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .
CitedZC v Royal Free London NHS Foundation Trust QBD 26-Jul-2019
Defamation/privacy claims against doctors failed
The claimant, seeking damages for alleged defamation, now asked for the case to be anonymised.
Held: The conditions for anonymisation were not met. The anonymity would be retained temporarily until any time for appeal had passed.
As to . .
CitedRe Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
CitedXXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
CitedImam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
CitedPembrokeshire Herald, Re (Leave To Appeal) CACD 27-Jul-2021
A teacher had been tried and acquitted of sexual assaults on girls at his school. The court made an order restricting reporting to disallow identification of anyone involved. The paper now appealed from refusal after the trial to lift the . .
CitedBelhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media, Human Rights, Children

Leading Case

Updated: 17 November 2021; Ref: scu.219019

Cottrell, Regina v; Regina v Fletcher: CACD 31 Jul 2007

The defendants sought to appeal their convictions out of time, saying that the law had changed since the convictions.
Held: Where the court would not refer give leave to appeal out of time, the Criminal Cases Review Commission should also not refer the case.

[2007] EWCA Crim 2016, Times 05-Sep-2007, [2007] 1 WLR 3262, [2008] 1 Cr App Rep 7, [2008] Crim LR 50
Bailii
England and Wales

Criminal Practice

Updated: 15 November 2021; Ref: scu.258482

Twomey, Cameron And Guthrie v The United Kingdom (Judgment): ECHR 28 May 2013

Ineta Ziemele, P
67318/09 22226/12 – Admissibility Decision, [2013] ECHR 578
Bailii
European Convention on Human Rights, Criminal Justice Act 2003 46(3)
Human Rights
Citing:
Legal SummaryTwomey, Cameron and Guthrie v The United Kingdom (Legal Summary) ECHR 28-May-2013
ECHR Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Independent tribunal
Trial by judge sitting alone owing to risk of jury tampering: inadmissible
Facts – The case . .

Cited by:
Principal judgmentTwomey, Cameron and Guthrie v The United Kingdom (Legal Summary) ECHR 28-May-2013
ECHR Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Independent tribunal
Trial by judge sitting alone owing to risk of jury tampering: inadmissible
Facts – The case . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 November 2021; Ref: scu.511077

Goode, Regina (on The Application of) v The Crown Court At Nottingham: Admn 20 Jun 2013

The claimant challenged the validity of search warrants. He was being investigated on suspicion of conspiracy to pervert the course of justice. That allegation was later dropped.

Pitchford LJ, Burnett J
[2013] EWHC 1726 (Admin)
Bailii
England and Wales
Cited by:
CitedMills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice, Police

Updated: 14 November 2021; Ref: scu.510947

BW, Regina (on The Application of) v Caernarfon Youth Court and Another: Admn 27 Mar 2013

The defendant youth having been convicted on his plea of several sexual offences, now sought judicial review of the decision to commit him to the Crown Court for sentence.

Pitchford LJ, Wyn Williams J
[2013] EWHC 1466 (Admin)
Bailii
Powers of Criminal Courts (Sentencing) Act 2000 3C

Criminal Practice

Updated: 14 November 2021; Ref: scu.510802

Julius Kloiber Schlachthof Gmbh And Others v Austria: ECHR 4 Apr 2013

ECHR Criminal proceedings
Article 6-1
Access to court
Criminal charge
Determination (criminal)
Tribunal established by law
Lack of right of appeal to court with power to conduct a full review in respect of imposition of tax surcharges: violation
Facts – In their application to the European Court the applicant companies complained that proceedings concerning the imposition of surcharges ranging from 10% to 60% on unpaid contributions by the national agricultural marketing association, Agrarmarkt Austria AMA, had not been decided by a tribunal within the meaning of Article 6 ss 1 of the Convention.
In the domestic proceedings, the applicant companies had sought to argue that AMA contributions were levied for financing activities, such as AMA’s quality programme, which were not in compliance with European Union law. After an unsuccessful appeal to the designated appeal authority, the Federal Minister of Agriculture, Forestry, the Environment and Water, they had lodged complaints with the Constitutional Court and the Administrative Court. The Constitutional Court declined to hear their complaints of a violation of their constitutional right to property owing to the lack of prospects of success. Their complaints to the Administrative Court were likewise dismissed.
Law – Article 6 ss 1: In line with its judgment in Steininger v. Austria, the Court found that Article 6 under its criminal head applied to proceedings concerning the imposition of surcharges for taxes such as the contributions levied by the AMA. Where a sanction was criminal in nature there had to be the possibility of review by a court which satisfied the requirements of Article 6 ss 1, even though it was not inconsistent with the Convention for the prosecution and punishment of minor offences to be primarily a matter for the administrative authorities. Decisions taken by administrative authorities which did not themselves satisfy the requirements of Article 6 ss 1 had to be subject to subsequent review by a ‘judicial body that had full jurisdiction’.
In the instant case the AMA had ordered the applicant companies to pay surcharges and the Federal Minister of Agriculture, Forestry, the Environment and Water, acting as an appeal authority, had decided their appeal. The former entity was a public-law body in which some administrative powers were vested, the latter an administrative and governmental authority. Neither qualified as a tribunal. In the Steininger case, which also concerned surcharges, the Court had found that neither the Administrative Court nor the Constitutional Court qualified as a tribunal since neither had sufficient powers to conduct a full review in respect of proceedings that were of a criminal nature for Convention purposes. There was no reason to depart from that finding in the present case. The applicant companies had thus not had access to a tribunal within the meaning of Article 6 ss 1
Conclusion: violation (unanimously).
Article 41: claim in respect of pecuniary damage dismissed; no claim made in respect of non-pecuniary damage.
(See also Steininger v. Austria, no. 21539/07, 17 April 2012)

21580/07 – Legal Summary, [2013] ECHR 481, 21565/07, 21572/07, 21575/07
Bailii
European Convention on Human Rights

Human Rights, Taxes Management, Criminal Practice

Updated: 12 November 2021; Ref: scu.510781

Erkapic v Croatia: ECHR 25 Apr 2013

Article 6
Criminal proceedings
Article 6-1
Fair hearing
Conviction based on key pre-trial witness statements retracted before trial court: violation
Facts – In the course of a police investigation into drug-trafficking three witnesses gave statements that they purchased heroin from the applicant. During the applicant’s trial all three retracted their statements claiming that they had been made under duress from the police. The applicant’s lawyer applied for an order excluding the statements from the case file as having been obtained unlawfully. However, the trial court dismissed that request and convicted the applicant on the basis of that evidence. He appealed without success.
Law – Article 6-1: The Court had previously held that unless there were important reasons to find otherwise the notion of a fair trial required that greater weight be attached to statements given in court than to records of a witnesses’ pre-trial questioning because the latter was primarily a process by which the prosecution gathered information in support of their case. In the applicant’s case, the three witnesses had given statements incriminating the applicant to the police which they had retracted at the trial on the grounds that that they had been pressured into making the accusations. Following their testimony at the trial, the applicant had sought to have their statements to the police excluded as having been unlawfully obtained. His request had, however, been dismissed without the trial court taking any action to examine the allegations of unlawfulness, thus denying the applicant an effective opportunity to challenge the authenticity of the evidence given by those witnesses to the police. It was undisputed that the three witnesses were heroin addicts at the time of the police questioning and that one of them also suffered from a personality disorder. The witnesses had further alleged that their lawyers, who had been imposed on them by the police, had not been present during the questioning and had only attended later to sign the pre-prepared statements. However, the trial court had confined itself to finding that the relevant records did not contain any indication of unlawfulness and had not sought to ascertain the manner and circumstances in which the impugned statements were obtained. There were thus serious doubts about the reliability and accuracy of those witness statements, which if not the sole were at least decisive evidence against the applicant, without which his conviction might not have been possible.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage.

51198/08 – Legal Summary, [2013] ECHR 470
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 12 November 2021; Ref: scu.510778

Lewis and Others v Regina: CACD 23 May 2013

The defendants appealed saying that a juror had extraneous material regarding the matters before the court had been researched by a juror.
Held: The court observed at that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming.

Igor Judge, Baron Judge LCJ, Royce, Globe JJ
[2013] EWCA Crim 776
Bailii
England and Wales
Cited by:
CitedBaybasin and Others, Regina v CACD 13-Dec-2013
The defendants sought leave to appeal against drugs related convictions saying that the method used for jury ballotting by the Crown Court was unlawful, the prosecutor having withdrawn his request for this, and that a juror had convicted after . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 12 November 2021; Ref: scu.510716

In Re D: Admn 2006

The court considered the ambit of the discretionary grant of a restraint order, where the proceeds of crime had been transferred to a company.
Held: Ouseley J said: ‘In my judgment the real question which a judge faced with an application for a restraint or receivership order is whether the order of the extent sought and now obtained is appropriate or necessary in view of the two legislative objectives out in section 31(2) and (4) of the 1994 Act. The question whether the effect of such an order is to pierce the corporate veil or whether some particular test related to that concept requires to be satisfied is not, in my judgment, the ultimate object of the inquiry which the court has to carry out. The object of the Act is to enable proceeds of crime to be ascertained, protected and realised. The first question therefore is whether there are corporate assets which should be treated as the defendant’s assets and the second question is whether, if that is the case, a restraint and receivership order of the extent sought is necessary. The position, in my judgment, is the same where there is an intermingling of the assets of a criminal, who is seeking to evade the effect of the confiscation order, with the assets of innocent business partners in a company. If it is established that some or all of the assets of the company are to be treated as assets of the defendant, the question of how their intermingling with the assets of someone who is innocent of wrongdoing is to be dealt with, is a matter for resolution by deciding whether an order should be made and if so on what terms, rather than a matter which has to be resolved by simply asking whether the corporate veil should be pierced.’

Ouseley J
[2006] EWHC Admin 254
Drug Trafficking Act 1994
England and Wales
Cited by:
CitedLarkfield Ltd and Others v Revenue and Customs Prosecution Office and Others CA 12-May-2010
The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 12 November 2021; Ref: scu.415922

Larkfield Ltd and Others v Revenue and Customs Prosecution Office and Others: CA 12 May 2010

The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the registration was a scheme to hide its true ownership by M. There had been evidence of M’s involvement in the purchase of his intention to purchase it through an offshore vehicle, and of his payment of utility bills.
Held: The judge’s conclusion was unsustainable from the evidence available to him. There was insufficient evidence that the loan transaction financing the purchases was a sham.

Etherton LJ
[2010] EWCA Civ 521, [2010] STI 1591, [2010] 3 All ER 1173, [2010] Lloyd’s Rep FC 484, [2010] WTLR 1315, [2010] STC 1506
Bailii
Criminal Justice Act 1988 74(1) 71
England and Wales
Citing:
CitedIn Re D Admn 2006
The court considered the ambit of the discretionary grant of a restraint order, where the proceeds of crime had been transferred to a company.
Held: Ouseley J said: ‘In my judgment the real question which a judge faced with an application for . .
CitedIn re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedModjiri, Regina v CACD 22-Apr-2010
The court was asked whether, where the convicted person is one of a number of registered owners of land, each of whom has a beneficial tenancy in common in the land, and the land cannot be sold, mortgaged or leased without the consent of all the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 12 November 2021; Ref: scu.414900

In re Norris, Application by Norris: HL 28 Jun 2001

The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was held that the civil court was looking to different issues. In the Crown Court the onus had been on the husband. She had no right of representation, and her interests were not the same as those of her husband. She was to be allowed to challenge the order made. As the registered proprietor, the burden of proof lay on customs and excise.
Lord Hobhouse of Woodborough referred to earlier cases: ‘These are illustrations of the principle of abuse of process. Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatam or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.’

Hope, Browne-Wilkinson, Clyde, Hutton, Hobhouse LL
Times 29-Jun-2001, Gazette 26-Jul-2001, [2001] 1 WLR 1388, [2001] UKHL 34, [2001] 3 FCR 97, [2001] 3 All ER 961
Bailii, House of Lords
Drug Trafficking Offences Act 1986
England and Wales
Citing:
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedUnited States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Appeal fromClifford R Norris, Re; In the Matter of an Application By Teresa W Norris CA 27-Jan-2000
After a drugs trial, the commissioners sought a confiscation order against the defendant’s assets. The defendant’s wife argued that the house was in reality hers. The trial judge found against her. In later proceedings enforce the order, the wife . .
CitedAshmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
CitedMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .
CitedAbbas Kassimali Gokal v Serious Fraud Office CA 16-Mar-2001
The defendant was convicted of an offence to which section 15 of the Theft Act did not apply. It involved a deception of the auditors of BCCI in concealing a number of substantial loans made to a group of companies run by the defendant. Buxton J had . .

Cited by:
CitedMay, Regina v HL 14-May-2008
The defendant had been convicted of involvement in a substantial VAT fraud, and made subject to a confiscation order. He was made subject to a confiscation order in respect of the amounts lost to the fraud where he was involved, but argued that the . .
CitedGibson v Revenue and Customs Prosecution Office CA 12-Jun-2008
The claimant’s husband had been made subject to a criminal confiscation order in the sum of pounds 5.5 million. She now sought to appeal an action against life policies in which she claimed a 50% interest.
Held: Despite the finding that she . .
CitedLamb v Revenue and Customs Prosecutions Office CA 18-Mar-2010
The appellant challenged the appointment of a receiver in respect of property registered in his name, but said to be the realisable property of a man convicted of cheating the revenue. He said that he had funded the property, and that he had not . .
CitedLarkfield Ltd and Others v Revenue and Customs Prosecution Office and Others CA 12-May-2010
The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Litigation Practice

Updated: 12 November 2021; Ref: scu.82076

Yam, Regina (on The Application of) v Central Criminal Court and Another: Admn 31 Oct 2014

The claimant had been convicted of murder after evidence was given in camera. He sought to apply to the ECHR challenging the fairness of the trial, arguing that he needed and shoudl be free to use the material given in camera.
Held: The application for judicial review failed.

Elias LJ, Hickinbottom J
[2014] EWHC 3558 (Admin), [2015] Crim LR 224, [2015] 3 WLR 1050, [2015] 3 All ER 354, [2015] 1 Cr App R 10
Bailii
European Convention on Human Rights 34
England and Wales
Citing:
See AlsoYam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .

Cited by:
Appeal fromWang Yam, Regina (on The Application of) v Central Criminal Court and Another SC 16-Dec-2015
The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 12 November 2021; Ref: scu.538206

Challen v Challen and Another: ChD 27 May 2020

Forfeiture rule disapplied after spousal abuse

The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a conviction under the 1982 Act, and that the three month strict time limit ran accordingly.
Held: The claim succeeded, and the forfeiture rule disapplied: ‘In my judgment, the word ‘conviction’ in section 2(3) of the 1982 Act does not refer to the occasion of the plea of guilty to manslaughter, but to the occasion (if they are at the same time) when the plea is accepted and the defendant is sentenced.’ and ‘ it is only at the point of sentence and not, if this is earlier, when the court accepts the plea, that there is a ‘conviction’ within section 2(3) of the 1982 Act, such that the three-month time limit begins to run.’
‘These facts are extraordinary, tragic, and, one would hope, rare. They lasted 40 years and involved the combination of a submissive personality on whom coercive control worked, a man prepared to use that coercive control, a lack of friends or other sources of assistance, an enormous dependency upon him by the claimant, and significant psychiatric illness. The deceased undoubtedly contributed significantly to the circumstances in which he died. I do not say that because coercive control is now a criminal offence, but simply because I consider that, without his appalling behaviour over so many years, the claimant would not have killed him. ‘

HHJ Paul Matthews
[2020] EWHC 1330 (Ch), [2020] WLR(D) 356
Bailii, WLRD
Forfeiture Act 1982
England and Wales
Citing:
CitedCleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .
CitedIn the Estate of Cunigunda Crippen deceased 1911
Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
CitedIn Re Estate of Hall CA 1914
The rule of forfeiture applied as much to manslaughter as to murder. . .
CitedDunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
CitedGray v Barr ChD 1970
The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public . .
CitedGray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
CitedRe H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
CitedRegina v Cole CCA 1965
Six men robbed the bank manager and his assistant of monies in a safe in the vault of the bank premises. Two days later the appellant paid part of the proceeds of the robbery into two banks, located nearby to the vicinity of the robbery. Wax seals . .
CitedS v Recorder of Manchester and Others HL 1971
S, a 16 year old boy pleaded guilty to attempted rape before a juvenile court. The magistrates adjourned the case for inquiry reports. On the adjourned hearing, his legal representative referred to evidence of the boy’s mental condition, and asked . .
CitedLand v Land; In re Land, deceased ChD 13-Jul-2006
The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
CitedD v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
CitedChadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Criminal Practice

Updated: 12 November 2021; Ref: scu.650955

Crocker v Devon and Cornwall Police: Admn 28 Oct 2020

Power to extend time to serve notice of appeal

Proper construction of the joint effect of section 84(5) of the Anti-Social Behaviour, Crime and Policing Act 2014 and the Crown Court Rules SI 1982 No 1109 as amended – whether the Crown Court has any power to extend the time for service of the notice of appeal on the other party to the appeal after the appeal notice had been sent in time to the Court office.

Lord Justice Dingemans, Griffiths J
[2020] EWHC 2838 (Admin), [2020] WLR(D) 582
Bailii, WLRD
England and Wales

Criminal Practice

Updated: 12 November 2021; Ref: scu.655211

Mullen, Regina (on the Application of) v Secretary of State for the Home Department: HL 29 Apr 2004

The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts’. He sought compensation from the respondent, but for the failure to provide a fair trial.
Held: ‘miscarriage of justice’ is not a legal term of art and has no settled meaning. The House had to answer whether it was intended that compensation was payable to all whose convictions had been overturned, or only to those thought to have been properly shown to have been innocent. It is often extraordinarily difficult to infer the will of a composite body, such as an international conference, except from the language actually adopted. The Covenant made such a distinction. Here, despite the unlawful pre-trial behaviour and the correctness of the overturning of the conviction, there was no reason to doubt the correctness of the jury’s verdict. Any compensation would therefore have to be under the discretionary scheme operated by the Home Secretary. No legitimate expectation had been created in favour of the claimant. Appeal allowed.

Lord Bingham of Cornhill, Lord Steyn, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
[2004] UKHL 18, Times 03-May-2004, [2005] 1 AC 1, [2004] 3 All ER 65, [2004] 2 WLR 1140, 16 BHRC 469, [2004] UKHRR 745
House of Lords, Bailii
International Covenant on Civil and Political Rights 1966 14(6), Criminal Justice Act 1988 133
England and Wales
Citing:
Appeal fromRegina (on the Application of Mullen) v The Secretary of State for the Home Department CA 20-Dec-2002
The applicant had been unlawfully taken from Zimbabwe, then tried and sentenced in the UK. His conviction was set aside as unsafe, but he had been refused damages. He appealed.
Held: There was no substantial criticism of the trial itself, but . .
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedRegina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
CitedRobins v National Trust Company Ltd 1927
The rule restricting a third tier court from upsetting a finding where there have been concurrent judgments of two courts on a pure question of fact were not based on any statutory rule. . .
CitedSekanina v Austria ECHR 25-Aug-1993
The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the . .
CitedLamanna v Austria ECHR 10-Jul-2001
Hudoc Judgment (Merits and just satisfaction) Preliminary objection joined to merits (victim); No violation of Art. 6-1; Violation of Art. 6-2; Pecuniary damage – claim rejected; Costs and expenses partial award . .
CitedLeutscher v The Netherlands ECHR 26-Mar-1996
Lack of jurisdiction (complaint inadmissible); No violation of Art. 6-2 – The Commission distinguished cases in which there has been no acquittal on the merits of the accusation. . .
CitedRushiti v Austria ECHR 21-Mar-2000
The right of every person under the Convention to be presumed innocent, includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal: ‘In any case, the Court is not convinced by the Government’s . .
CitedHammern v Norway ECHR 11-Feb-2003
The claimant was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether ‘it is shown to be probable that he did not perform the act that formed the basis for the charge’. . .
CitedWeixelbraun v Austria ECHR 20-Dec-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-2; Costs and expenses partial award – Convention Proceedings . .
CitedO v Norway ECHR 11-Feb-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-2 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award
Where there has been an . .
CitedRegina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
CitedEffort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk) HL 22-Jan-1998
A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an . .
CitedFothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedRegina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
CitedJordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
CitedMullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
CitedRegina v Turner CACD 1970
The court considered an appeal where the defendant had entered a plea of guilty but had felt himself under undue pressure from the judge.
Held: The court urged caution in the practice of counsel seeing the judge in his chambers, though . .

Cited by:
CitedMullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedDr D, Regina (on the Application of) v Secretary of State for Health CA 19-Jul-2006
The doctor complained of the use of Alert letters where he was suspected of sexual abuse of patients, but the allegations were unsubstantiated. He complained particularly that he had been acquitted in a criminal court and then also by the . .
CitedRaissi, Regina (on the Application of) v Secretary of State for the Home Department Admn 22-Feb-2007
The claimant sought judicial review of a refusal to make an ex gratia payment for his imprisonment whilst successfully resisting extradition proceedings. Terrorist connections had been suggested, but the judge made an explicit finding that at no . .
CitedO’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
CitedClibery, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jul-2007
The claimant sought judicial review of a decision of the Home Secretary, to refuse his application for compensation. He had first been convicted and imprisoned and then had his conviction quashed. The respondent did not think that the conviction was . .
CitedSiddall, Regina (on the Application of) v Secretary of State for Justice Admn 16-Mar-2009
The claimant had been imprisoned then released after his conviction for sexual assaults. He appealed against rejection of his claim for compensation. The criterion for compensation was demonstrating that something had ‘gone seriously wrong in the . .
CitedOxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
CitedAdams, Regina (on The Application of) v Secretary of State for Justice CA 27-Nov-2009
The claimant sought compensation for his imprisonment after the overturning of his conviction, on the basis that evidence had emerged which undermined the conviction.
Held: Such a claim could not succeed where the reason for the non-use of the . .
CitedAdams, 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. . .
CitedMacDermott and Another, Re Judicial Review CANI 8-Feb-2010
The applicants had been convicted of murders and had served terms of imprisonment, but had been released when their convictions had been overturned. They now appealed against a refusal of judicial review of a decision not to award them compensation . .
CitedN, Regina v CACD 20-Feb-2012
The court considered the offence of child trafficking. The defendants had been the victims of such offences and used for managing cannabis production. It was argued that neither defendant should have been prosecuted.
Held: The appeals failed. . .

Lists of cited by and citing cases may be incomplete.

Damages, Criminal Practice, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.196438

Regina v Holmes: CACD 14 Mar 2014

The defendant appealed against his conviction for sexual and common assault. He objected as to the use of bad character evidence, and the rejection of his no case to answer submission. The evidence was primarily by identification where the descriptions were inconsistent and there had been delay.
Held: The appeal succeeded. The judge had failed, as required, properly to rehearse the weaknesses in the identification evidence: ‘There were a considerable number of points to be emphasised as regards the potential unreliability of this identification evidence, as rehearsed above, and given it was the sole evidence that incriminated the appellant it was critical that the judge directed the jury as to the main matters on which they needed to focus in this context. Even allowing for the fact that this had been a short trial, on the particular facts of this case the failure by the judge to identity the specific weaknesses in the identification evidence at any stage constituted a significant defect in the summing up such as to render the verdicts unsafe.’

Fulford LJ, Holroyde J, Lakin HHJ
[2014] EWCA Crim 420
Bailii
England and Wales
Citing:
CitedRegina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 11 November 2021; Ref: scu.522454

Omar Othman (Abu Qatada) v The United Kingdom: ECHR 17 Jan 2012

The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that incriminating statements against him had been obtained by torture.
Held: His deportation to Jordan would be in violation of article 6. The court adopted the meaning to be given to the phrase ‘flagrant denial of justice’ in the partly dissenting opinion in Mamatkulov, which it said was a stringent test of unfairness: para 260. It was satisfied that the ill-treatment of the witnesses which was alleged amounted to torture. That meant that the two questions it had to consider were whether a real risk of the admission of that evidence was sufficient and, if so, whether a flagrant denial of justice would arise in the applicant’s case. It was conscious of the fact that the Grand Chamber did not find that the test had been met in Mamatkulov. But the applicant’s complaint was not of the general and unspecific kind that was made in that case. It was a sustained and well-founded attack on a State Security Court system that would try him in breach of one of the most fundamental norms of international justice, which was the prohibition on the use of evidence obtained by torture.
Lech Garlicki, P
[2012] ECHR 56, (2012) 32 BHRC 62, (2012) 55 EHRR 1, CE:ECHR:2012:0117JUD000813909
Bailii
European Convention on Human Rights 6
Human Rights
Citing:
See AlsoOmar Othman v The United Kingdom ECHR 26-May-2009
Statement of Facts. The applicant resisted deportation to Jordan to face trial on on terrorism related charges, saying that there was a real risk that the evidence to be presented against him would include evidence obtained by torture. . .
CitedMamatkulov And Askarov v Turkey ECHR 4-Feb-2005
Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial . .

Cited by:
CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
At ECHROthman v Secretary of State for The Home Department SIAC 6-Feb-2012
Application for bail. . .
JudgmentOthman (Abu Qatada) v The United Kingdom ECHR 9-May-2012
(Press Release) Diplomatic assurances will protect Abu Qatada from torture but he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him. . .
At ECHROthman v Secretary of State for The Home Department SIAC 28-May-2012
SIAC (Deportation – Bail Application – Refused) The applicant was held in immigration detention pending a proposed deportation to his native Jordan to face retrial on terrorist charges. Having resisted his . .
At ECHROthman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
At ECHROthman (Abu Qatada) v Secretary of State for The Home Department SIAC 12-Nov-2012
The applicant challenged his proposed deportation to Jordan to face perrorism related charges. He said that there was a real risk that the evidence used against him would have been obtained by torture.
Held: His appeal was allowed . .
At ECHROthman (Aka Abu Qatada) v Secretary of State for The Home Department CA 27-Mar-2013
The appellant sought the deportation of the respondent to his home country of Jordan to face trial on terrorism related charges. The respondent said that evidence against him would have been obtained by torture, and challenged re-assurances accepted . .
CitedKapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
CitedIsmail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
CitedLord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, International

Leading Case

Updated: 11 November 2021; Ref: scu.465697

Adgyei, Regina v: CACD 11 Aug 2016

Conviction in Excess of Jurisdiction

Appeal against conviction by the unusual route of a certificate of the trial judge. The defendant had been convicted of having a bladed article and of resisting a police constable. He had been convicted by a jury of an offence triable only summarily.
Held: Upon the entry of the not guilty plea, the Crown Court ceased to have jurisdiction, and should have remitted to the Magistrates. The conviction was quashed.

Bean LJ, Foskett, Hickinbottom JJ
[2016] EWCA Crim 1405
Bailii
Crime and Disorder Act 1998
England and Wales

Criminal Practice

Updated: 11 November 2021; Ref: scu.570715

Dyer, Regina (on The Application of) v Watford Magistrates Court: Admn 16 Jan 2012

The appellant sought judicial review of the magistrates’ decision to convict him of the two offences of causing racially aggravated fear or provocation of violence, contrary to section 31(1)(a) of the 1998 Act, and of causing fear or provocation of violence, contrary to section 4 of the 1986 Act. He said that to convict him of both on the same facts was irrational and disproportionate and was also the product of a fixed and inflexible policy rigidly applied and, for these reasons, the convictions were unlawful.
Held: The appeal succeeded. A court given a discretion must not fetter it, and must act according to its perception of the merits of the case before it, and: ‘This claimant stands convicted twice for a single wrong. That is unfair and disproportionate. It is not a matter of being punished twice. The double conviction is of itself unfair. It must be basic to our system of criminal justice that a person’s criminal record should reflect what he has done, no more and no less. That is fair and proportionate. To convict him twice for a single wrong offends this basic rule. These two offences were charged as alternatives but they have been treated as if they were cumulative.’

Laws LJ, Hickinbottom J
[2013] EWHC 547 (Admin)
Bailii
Crime and Disorder Act 1998 3191)(a), Public Order Act 1986 4
England and Wales
Citing:
CitedRegina v Manchester Coroner, ex parte Tal 1985
The court asked whether the Divisional Court was bound by previous decisions of that court, and answered: ‘we find it difficult to imagine that a single judge exercising this (supervisory) jurisdiction (of the High Court) would ever depart from a . .
CitedDirector of Public Prosecutors v Gane Admn 1991
The defendant was charged with driving with excess alcohol and being in charge of a vehicle with excess alcohol. It was clear that on the facts the former charge included the latter. The magistrates found the facts proved but convicted only on the . .
CitedCrown Prosecution Service, Regina (on the Application of) v Blaydon Youth Court Admn 6-Oct-2004
The defendant had been charged with a simple offence under the Public Order Act and also with the racially aggravated offence. The magistrates refused to hear them together.
Held: This was wrong. Keene LJ said: ‘For the prosecutor, Mr Moran . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.472487

Smith, Regina (on The Application of) v Crown Prosecution Service: Admn 24 Nov 2010

The claimant sought judicial review of the defendant’s refusal to discontinue the prosecution of the claimant. The judge had suggested that the defendant could submit to a restraining order without a finding of guilt. The CPS had concluded that no such agreement could be reached after an acquittal on the offer of no evidence, but rather required an acquittal after a trial.
Held: Review was granted. Though there might be circumstances weere it would be proper to allow the prosecutor to withdraw from such an offer, it was clear that in this case there had been an agreement reached. Each such situation must be assessed on its own facts.

Ouseley J
[2010] EWHC 3593 (Admin)
Bailii
Protection from Harassment Act 1997 2
England and Wales
Citing:
CitedRegina v Mahdi CACD 15-Mar-1993
There had been delay in the prosecution. Eventually, the prosecutor sought another adjournment before Judge Clarkson, who said ‘it is to be recorded that this is the last time that there will be an adjournment for the benefit of the prosecution.’ He . .
CitedRegina v Bloomfield CACD 25-Jun-1996
It was an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the Court that the prosecution would tender no evidence. There was no change of circumstances which might have justified . .
CitedNembhard v Director of Public Prosecutions Admn 21-Jan-2009
The defendant appealed against his conviction for failing to produce his driving documents, saying that the local police had stopped some 55 times in the previous 12 months, and that the request was improper and an abuse.
Held: ‘An officer can . .
CitedRegina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Crime

Updated: 11 November 2021; Ref: scu.431940

Regina v Dobson: CACD 18 May 2011

Retrial After Acquittal – New Scientific Evidence

The court heard an application for the quashing of a verdict of not guilty and the retrial of a defendant for the murder of Stephen Lawrence in 1993. Other defendants previously acquitted were not to be tried, but a defendant not previously tried now awaited trial. Here, it was said that new scientific evidence not previously available linking the acquitted defendant to the crime scene, but no more.
Held: D’s acquittal should be quashed, and he should be retried along with the new defendant. The court considered the test for the admission of such new evidence and the quashing of an acquittal: ‘the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of section 78 it is compelling: otherwise it is not.’
The second test is that any such orders should be in the interests of justice: ‘The interests of justice test requires attention to be focussed on the express statutory criteria provided in section 79, but these criteria, although wide ranging, are not exhaustive. They are partly directed to events during the original investigative and trial process, a requirement designed to avoid delay in the administration of justice as well as inefficiency and lack of direction which might result from a perception that what we shall describe as a second bite of the cherry may eventually become available to the prosecution. Thus if the new evidence relied on by the prosecution would have been revealed for use at the first trial by a competent investigative and/or prosecutorial process, then the interests of justice may, on this ground alone, lead to the application being refused. The interests of justice have also to be addressed in the context of the date when any new trial may take place, with particular emphasis on any failure of due diligence or expedition since the original trial and on the impact of any delay (whether culpable or not) on the fairness of the proposed second trial. However compelling the new evidence may be, it is elementary that any second trial should be a fair one. For this purpose the court will examine all the known facts, and consider any material drawn to its attention on behalf of the potential defendant, including any potentially prejudicial publicity attracted by the case, which may make it ‘unlikely’ that a fair trial can take place.’

Judge LCJ, Rafferty, Holroyde JJ
[2011] EWCA Crim 1256, [2011] 1 WLR 3230
Bailii, CaTJ
Criminal Justice Act 2003 78 79
England and Wales
Citing:
CitedG(G) and B(S), Regina v CACD 12-Jun-2009
An application was made for the quashing of two acquittals for murder and for a retrial.
Held: It would take only compelling new evidence of guilt to justify the quashing of an acquittal. The evidence of a witness who was ready to say whatever . .

Cited by:
See AlsoRegina v Dobson and Norris CCC 4-Jan-2012
CCC (Central Criminal Court) The Offence
The murder of Stephen Lawrence on the night of 22nd April 1993 was a terrible and evil crime. Recently the Lord Chief Justice described it as a ‘murder which scarred . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.439831

Regina v Kansal (2): HL 29 Nov 2001

The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective effect of Human Rights decisions in appeal cases may have been incorrect, but will be followed. Decisions in respect of original hearings and public law cases remain retrospective in effect. Parliament had intended that a citizen whose Convention rights had been violated before the 1998 Act and was then a defendant in a trial after that date should be able to rely on his Convention rights at that trial. There were strong reasons of policy, the need for certainty in the law and finality in litigation, why a conviction which was valid and lawful at the time should not be set aside because of a change in the substantive law. It was wrong for one House of Lords Judicial Committee to reconstitute a seven judge hearing simply to anticipate reversing an earlier decision.

Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn, Lord Hope of Craighead and Lord Hutton
Times 04-Dec-2001, Gazette 17-Jan-2002, [2001] UKHL 62, [2001] 3 WLR 1562, [2002] 2 AC 69, [2002] 1 All ER 257, [2002] HRLR 9, [2002] BPIR 370, [2002] 1 Cr App R 36, [2002] UKHRR 169
House of Lords, Bailii
Human Rights Act 1988, European Convention on Human Rights, Insolvency Act 1986 433
England and Wales
Citing:
AppliedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Appeal fromRegina v Kansal, on a Reference From the Criminal Cases Review Commission (2) CACD 24-May-2001
Once a case had been referred to the Court of Appeal by the Criminal Cases Review Commission, the court had to make a declaration, even if the case was very old. The effect of the 1998 Act on statute law was not retrospective, but where it affected . .
CitedRegina 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 . .
See AlsoRegina v Kansal CACD 24-Jun-1992
K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was . .
CitedRegina 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 . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedMitchell v WT Grant Company 13-May-1974
(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the . .
CitedPlanned Parenthood of Southeastern Pennsylvania v Casey 29-Jun-1992
(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work . .
CitedRegina v Benjafield, Leal, Rezvi and Milford CACD 21-Dec-2000
Lord Woolf MR said that where the original proceedings are brought by a public authority, an appeal is part of those proceedings to which section 22(4) applies: ‘In our judgment, where the original proceedings are brought by, or at the instigation . .
CitedLewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
CitedParochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another ChD 7-Feb-2000
A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when . .
CitedRegina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
CitedFitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
CitedWallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
CitedPreiss v General Dental Council PC 17-Jul-2001
(Professional Conduct Committee of the GDC) The procedures of the General Dental Council were in breach of the right to a fair trial, insofar as the same person might both carry out the preliminary stages of an investigation, and later be involved . .
CitedRegina v Mitchell CACD 1977
The court considered the effect of changes in the law after a conviction on applications for leave to appeal out of time.
Held: Lane LJ said: ‘This is an application for an extension of time in which to appeal against conviction. It should be . .
CitedMinto v Police 1987
When considering a police officer’s assessment that a breach of the peace is imminent, the question of immediacy is in part a question of degree and is highly relevant to the reasonableness of the action taken.
A refusal or failure to . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
AppliedRegina v Rezvi HL 24-Jan-2002
Having been convicted of theft, a confiscation order had been made against which the appellant appealed. The Court of Appeal certified a question of whether confiscation provisions under the 1988 Act were in breach of the defendant’s human rights. . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
At House of LordsKansal v The United Kingdom ECHR 27-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (Convention proceedings) – . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
CitedO v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
CitedDoherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedGC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
CitedJude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Cited(Un-named) (DLA) SSCS 16-Oct-2002
Disability Living Allowance . .
CitedR(CS) 6/03 SSCS 5-Nov-2002
Maintenance assessment – whether ‘parent with care’ includes step-parent
Human rights – application of Human Rights Act 1998 where Secretary of State’s decision before October 2000 and tribunal hearing afterwards . .
CitedRe Jordan QBNI 6-Jan-2003
. .
CitedWright, Re Application for Judical Review QBNI 7-Mar-2003
The applicant is the father of a man called Billy Wright who was murdered on 27 December 1997 while an inmate of Her Majesty’s Prison, the Maze, Lisburn, County Antrim. By this application Mr Wright seeks judicial review of the decision of the Chief . .
CitedJordan, Re Application for Judicial Review CANI 12-Dec-2003
Appeal from a decision dismissing an application by Hugh Jordan for judicial review of the ‘continuing decision’ of the Director of Public Prosecutions for Northern Ireland refusing to give reasons other than in the most general terms for his . .
CitedMagee, Re Application for Statutory Review QBNI 16-Sep-2004
Judicial review – Criminal Justice Act 1988 – Claim for compensation for miscarriage of justice – claim is alternative under ex parte scheme – whether applicant victim of miscarriage – whether decision of Secretary of State flawed. . .
CitedBeck and Others, Re Petitions To The Nobile Officium HCJ 29-Jan-2010
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.167006

Miller v Regina: CACD 26 May 2010

The defendant appealed against his conviction for possessing drugs with intent to supply. He said that the court should not have allowed the cross-examination of a defence witness as to that witness’ bad character. The witness was on remand facing similar charges. The prosecution suggested that his circumstances provided a reason to take responsibility for the defendant’s actions.
Held: For a witness’ to be cross examined as to his characer, his credibility must be a substantial issue in the trial, and that bad character must have substantial probative value relative to the issue of that credibility: ‘Evidence of bad character is not confined to proof of previous convictions, but whether or not the evidence relied upon comprises convictions or previous conduct otherwise proved, it must pass the section 100(1) test of being (1) important explanatory evidence or (2) of substantial probative value on an issue of substantial importance. The purpose of section 100 in the present context is to limit the ambit of cross-examination to that which is substantially probative on the issue of credibility, if credibility is an issue of substantial importance in the case. One of its intended effects is to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration upon the real issues in the case.’
The matters against the witness remained unproven accusations, which the witness could only be expected to deny, and: ‘These questions should not, by reason of the unfair prejudice they were capable of producing, have been permitted, certainly not unless the prosecution intended, with the judge’s leave, to prove them.’
However the judge’s warning had been strong and clear, and the other evidence also sufficient. The conviction remained safe.

Pitchford, Maddison, MacDuff LJJ
[2010] EWCA Crim 1153, [2010] WLR (D) 142, [2010] 2 Cr App R 19
Bailii, WLRD
Criminal Justice Act 2003 100(1)(b)
England and Wales
Citing:
CitedRenda, Regina v; Regina v Ball; Regina v Akram etc CACD 10-Nov-2005
Each defendant had been convicted after admission of bad character evidence against them under the 2003 Act.
Held: The admission of such evidence was a matter of discretion for the trial judge. The exercise of such discretion will only rarely . .
CitedRegina v Weir, Somanathan,Yaxley-Lennon, Manister, Qiang He and De Qun He CACD 11-Nov-2005
The defendant objected to evidence being used as evidence of bad character against him under the 2003 Act, when it would not have been admissible as similar fact evidence under the old rules.
Held: Obiter dicta in O’Brien did not mean that the . .
CitedRegina v Bovell; Regina v Dowds CACD 25-Apr-2005
The defendants appealed their convictions. In one case the prosecution had brought evidence of bad character. Bovell was convicted of wounding with intent, pleading self-defence. His legal team later discovered that the complainant had himself been . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Evidence

Updated: 11 November 2021; Ref: scu.416058