Challenge to grant of assistance to US authorities.
Dame Victoria Sharp P Qbd Mr Justice Garnham
[2020] EWHC 2516 (Admin), [2020] WLR(D) 520, [2021] 3 All ER 247
England and Wales
Updated: 06 August 2022; Ref: scu.654031
The claimant challenged the giving of Mutual Legal Assistance to the US in a case where after trial for very serious terrorist allegations, the death penalty might be imposed after conviction, without first insisting that an undertaking be given that the penalty would not be sought in this case.
The Right Honourable the Lord Burnett of Maldon
Lord Chief Justice of England and Wales
The Honourable Mr Justice Garnham
[2019] EWHC 60 (Admin), [2019] 3 All ER 598, [2019] 1 WLR 3463, [2019] WLR(D) 87, [2019] ACD 44
England and Wales
Appeal from – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
‘The issue in this case is the legality of the Government’s decision to provide mutual legal assistance to the United States – in the shape of the product of police enquiries – to facilitate the prosecution of the claimant’s son in the United States . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.633147
Challenge to search warrants issued under the 1998 Act.
Justice Marcus Smith
[2018] EWHC 3448 (Ch)
England and Wales
See Also – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 16-Nov-2017
The Authority had obtained and executed a search warrant against the defendant’s premises, but now sought to restrain disclosure of the materials upon which it had obtained that warrant, asserting Public Interest Immunity.
Held: An application . .
See Also – The Competition and Markets Authority (CMA) v Concordia International Rx (UK) Ltd CA 7-Aug-2018
The Authority had obtained a search warrant on an ex parte application. The defendant sought a rehearing, but the Authority sought to rely upon material for which it now asserted public interest immunity in material already used. At first instance, . .
See Also – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 8-Nov-2018
Whether to appoint special advocate. The Authority wished to pursue an investigation relying upon material for which it asserted Public Interest Immunity. . .
Cited – Haralambous, 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 . .
See Also – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 8-Nov-2018
Whether to appoint special advocate. The Authority wished to pursue an investigation relying upon material for which it asserted Public Interest Immunity. . .
Cited – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 16-Jan-2019
Application to vary search warrant.
Held: Refused. . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.631385
[2009] EWHC 3684 (Admin)
Proceeds of Crime Act 2002 243 266
England and Wales
Updated: 05 August 2022; Ref: scu.377832
There is no need on a charge alleging rape to separate into separate counts on the indictment allegations of acting knowingly and acting recklessly as to whether the woman consented. That the prosecution had set out to establish knowledge of lack of consent did not mean that they had abandoned an assertion of recklessness. It would be foolish and bizarre of a prosecutor to do so.
Times 13-Feb-2001
England and Wales
Updated: 05 August 2022; Ref: scu.88456
In a trial for affray, two witnesses said they were reluctant to give evidence in person in fear for their own safety. Their evidence was admitted by the judge using his discretion under the Act for this purpose. He directed the jury as to the care they had to exercise, and there was other evidence. He did not give his reasons for exercising this discretion. It was held that although he should have given his reasons, in this case there had been no injustice, and the verdict stood.
Times 22-Nov-2000
England and Wales
Cited – Lobban, Regina v CACD 7-May-2004
The defendant appealed his conviction. A witness statement had been read, but he had wanted to cross examine her. The court was satisfied that her refusal to give evidence in person was through fear.
Held: In making the decision, the judge had . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.88435
Challenge was made to the institution of fresh committal proceedings following the applicant’s discharge at an earlier committal hearing when, the prosecution’s application for an adjournment having been refused, no evidence was offered against him. The applicant contended that the prosecution’s only right was to apply for a voluntary bill of indictment.
Held: No question of autrefois acquit arises by reason of the earlier discharge. Any practice did not change that rule.
Lord Widgery CJ
[1977] 1 WLR 911
England and Wales
Cited – Regina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.181628
The defendant’s mortgage debts are to be disregarded when looking at whether or not to make a confiscation order, but are not to be disregarded when making a costs order. The two questions look at the defendant’s circumstances from different points of view.
Times 21-May-1997
Criminal Justice Act 1988 Part VI
England and Wales
Updated: 05 August 2022; Ref: scu.88470
The court considered the obligations of the prosecution on disclosure. The courts must: ‘keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.’
Lawton LJ
(1978) 68 Cr App R 419
England and Wales
Cited – Regina v Forbes (Giles) HL 20-Jul-2001
The defendant had been convicted of evading a prohibition on importing articles of an obscene or indecent nature. He had been unaware of whether the articles were indecent images of children, or otherwise obscene images. Since the provisions which . .
Cited – Regina v Shivpuri HL 15-May-1986
The defendant had been accused of attempting to import controlled drugs, but the substances actually found were not in fact a controlled drug, though he had believed and intended them to be. He appealed saying that he should not be conviced of an . .
Approved – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Cited – Regina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .
Cited – Secretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.181227
Where on a previous occasion the defendant had been acquitted with a formal verdict, after the prosecution had offered no evidence, it was not open to the prosecution later to return and allege a more serious offence based upon the same facts. The defendant was entitled to the benefit of the plea of autrefois acquit. The Acts made a dismissal equivalent to a finding of not guilty. Earlier decisions to the contrary effect (R v Brookes ([1995] Crim LR 630) was decided per incuriam.
Times 25-May-2001, Gazette 14-Jun-2001
Magistrates Courts Act 1980 27, Criminal Justice Act 1967 17, Criminal Procedure and Investigations Act 1996 35
England and Wales
Overruled – Regina v Brookes CACD 1995
. .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.88463
Appeal against disclosure orders made in support of freezing order.
Pill, Sedley, Moses LJJ
[2009] EWCA Civ 1125, [2009] WLR(D) 311, [2010] 1 All ER (Comm) 102
England and Wales
Cited – Saunders 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 . .
See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
The court considered a Defendant’s appeal asking whether section 13 of the 2006 Act removed the privilege against self-incrimination in respect of an offence under section 328 of the 2002 Act. The defendant contended that were it to comply with the . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 12-Nov-2009
The claimant sought continuation of a freezing order in a claim brought against senior officers of the company. . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 11-Dec-2009
Applications to correct suggested error in earlier order for stay. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 28-Jan-2010
The claimant sought a order that information released to it under court order could be used for additional purposes beyond those allowed. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 17-Mar-2010
Application by Claimant to set aside an order obtained ex parte so as to ensure that the hearing of an application issued by the Claimant for a receiver to be appointed in respect of the First Defendant’s assets be in private, that the public should . .
See Also – JSC BTA Bank v Ablyazov ComC 16-Jul-2010
The former bank in Kazakhstan had been nationalised to prevent its liquidation, and now sought recovery of sums said to have been taken by its former chairman: ‘The Court has to determine three applications. The first is an application by the Bank . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 24-Aug-2010
Application for an ‘unless’ order debarring the respondents from defending and entitling the claimant to enter judgment unless certain information and documents were provided. . .
See Also – JSC BTA Bank v Ablyazov and Others QBD 24-Aug-2010
When considering a strike out application, the judge should consider ‘the effect of making, or not making, the order sought on the overall fairness of the proceedings and the wider interests of justice as reflected in the overriding objective’. . .
See Also – JSC BTA Bank v A CA 19-Oct-2010
The court heard an appeal in private, against the order of Teare J imposing a receivership on the assets of Mr A pending the trial of claims made against him for misappropriations allegedly made by him while he was chairman of the claimant bank in . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.377236
Collins J
[2006] EWHC 3406 (Admin)
Updated: 04 August 2022; Ref: scu.376263
The defendant sought judcial review of a decision that he should stand trial on a charge of producing cannabis. He said that having been offered and having refused a caution three times, it was an abuse of process now to prosecute him. He said that the cannabis would have been for his own personal and medical use, and that it the law was discriminatory when more dangerous drugs were permitted to be supplied and used. He contrasted the policy taken by the government with that of its advisory council.
Held: The arguments were complex and there was no clear conflict as alleged, and ‘The Magistrates’ Court, as he acknowledges, does not have any jurisdiction to declare, as incompatible with human rights, the legislation in question. In my judgment, the arguments which he puts forward do not begin to amount to a case for incompatibility, or for a case that any decision to prosecute is contrary to his human rights. What he has done is articulately to set out a particular policy position which he would prefer the Government to adopt, but which, thus far, it has not adopted. In my judgment that is not the business of this court and I have no hesitation in deciding that this is an unarguable challenge and that permission ought to be refused.’
Leveson LJ, Wilkie J
[2009] EWHC 2457 (Admin)
England and Wales
Updated: 04 August 2022; Ref: scu.376006
Admissibility – part
46793/06, [2009] ECHR 1362
European Convention on Human Rights
Admissibility – Buldashev v Russia ECHR 18-Oct-2011
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.375522
(First Section) The applicant was interrogated while he was under arrest in police custody. He asked for the assistance of a lawyer during his interrogation, but this was disregarded by the investigator who proceeded to question him. It was argued that his decision then to confess his guilt to the investigator constituted an implied waiver of his right to counsel.
Held: The statements, made without having had access to counsel, did not amount to a valid waiver of his right. The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6.
The Court discussed the right to counsel: ‘A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.’ and
‘Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences.’
Christos Rozakis, President
7025/04, [2009] ECHR 1357
European Convention on Human Rights
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.375496
Application for variation of criminal restraint order.
Beatson J
[2008] EWHC 3375 (Admin)
England and Wales
Updated: 04 August 2022; Ref: scu.293965
[2006] EWHC 3211 (Admin)
England and Wales
Updated: 04 August 2022; Ref: scu.249162
(1850) 4 Cox 164
England and Wales
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.184189
Claim by B for judicial review of a decision of the Brent Youth Court refusing to consider a substantive bail application made on his behalf.
Wilkie J
[2010] EWHC 1893 (Admin)
England and Wales
Cited – Regina v Nottingham Justices, ex parte Davis QBD 1980
On a second or subsequent application for bail, magistrates need only ask first whether there had been a material change in circumstancs since the original order. If there had been no change, there was no need to look at the facts underlying the . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.421355
ECJ Protection of species of wild fauna and flora Species listed in Annex B to Regulation (EC) No 338/97 Evidence of lawful acquisition of specimens of those species Burden of proof – Presumption of innocence – Rights of the defence.
C-344/08, [2009] EUECJ C-344/08
England and Wales
Updated: 03 August 2022; Ref: scu.374271
[1837] EngR 200, (1837) 2 M and W 312, (1837) 150 ER 775 (A)
England and Wales
Updated: 03 August 2022; Ref: scu.313317
ECHR Article 6
Criminal proceedings
Article 6-1
Access to court
Decision to strike out civil claims alleging torture on account of immunity invoked by defendant State (the Kingdom of Saudi Arabia) and its officials: no violation
Facts – The applicants alleged that they had been subjected to torture while in custody in the Kingdom of Saudi Arabia. The first applicant (Mr Jones) subsequently commenced civil proceedings in the English High Court against the Kingdom, the Saudi Ministry of Interior and an individual officer. The other three applicants issued proceedings against four individuals: two police officers, a deputy prison governor and the Saudi Minister of the Interior. The High Court ruled that all the defendants were entitled to immunity under the State Immunity Act 1978 and refused the applicants permission to serve the proceedings outside the jurisdiction. On appeal, the Court of Appeal drew a distinction between immunity ratione personae (which applied to the State, the serving head of State and diplomats) and immunity ratione materiae (which applied to ordinary officials, former heads of State and former diplomats). It upheld the High Court’s decision in respect of the Kingdom and the Ministry, but allowed the applicants’ appeal in respect of the individual defendants. The issue then went to the House of Lords, which agreed with the High Court that all the defendants were entitled to immunity, even where the allegation against them was one of torture. In their application to the European Court, the applicants complained of a violation of their right of access to court.
Law – Article 6 – 1: Measures taken by a State which reflect generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 – 1. In its judgment in 2001 in Al-Adsani the Court had found that it had not been established that there had yet been acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State. In elaborating the relevant test under Article 6 – 1 in that judgment, the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part. It was therefore satisfied that the approach to proportionality set out by the Grand Chamber in Al-Adsani ought to be followed in the instant case.
(a) Application of those principles in the claim against the Kingdom of Saudi Arabia – The Court noted that in the International Court of Justice’s judgment of 3 February 2012 in Germany v. Italy – which had to be considered authoritative as regards the content of customary international law – it was clearly established that, as that date, no jus cogens exception to State immunity had yet crystallised. The application by the English courts of the provisions of the 1978 Act to uphold the Kingdom of Saudi Arabia’s claim to immunity in 2006 could not therefore be said to have amounted to an unjustified restriction on the applicant’s access to a court.
Conclusion: no violation (six votes to one).
(b) Application of the principles in the claim against the State officials – All four applicants had complained that they had been unable to pursue civil claims for torture against named State officials. The Court had to examine whether the refusal to allow those claims to proceed had been compatible with Article 6 – 1 of the Convention, applying the general approach set out in Al-Adsani. The immunity which was applied in cases against State officials remained ‘State’ immunity: it was invoked by the State and could be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials had been intended to comply with international law on State immunity, then as in the case where immunity was granted to the State itself, the aim of the limitation on access to court was legitimate. Since measures which reflected generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants’ complaint was whether the grant of immunity ratione materiae to the State officials had reflected such rules. Accordingly, the Court went on to examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials; and, if so, whether there was evidence of any special rule or exception concerning cases of alleged torture.
(i) The existence of a general rule: Since an act could not be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity could be invoked by the State then the starting point must be that immunity ratione materiae applied to the acts of State officials. If it were otherwise, State immunity could always be circumvented by suing named officials. The weight of authority at both the international and national levels appeared to support the proposition that State immunity in principle offered individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.
(ii) The existence of a special rule or exception in respect of acts of torture: Even if the official nature of the acts was accepted for the purposes of State responsibility, this of itself was not conclusive as to whether, under international law, a claim for State immunity was always to be recognised in respect of the same acts. Having regard to the relevant international law and national and international case-law, while there was in the Court’s view some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority was to the effect that the State’s right to immunity could not be circumvented by suing its servants or agents instead. There had been evidence of recent debate surrounding the understanding of the definition of torture in the Convention against Torture, the interaction between State immunity and the rules on attribution in the Draft Articles on State Responsibility, and the scope of Article 14 of the 1984 United Nations Convention Against Torture. However, State practice on the question was in a state of flux, with evidence of both the grant and the refusal of immunity ratione materiae in such cases. At least two cases on the question were pending before national Supreme Courts. International opinion on the question might be said to be beginning to evolve, as demonstrated by recent discussions around the work of the International Law Commission in the criminal sphere. That work was ongoing and further developments could be expected. In the present case, it was clear that the House of Lords had fully engaged with all of the relevant arguments concerning the existence, in relation to civil claims of infliction of torture, of a possible exception to the general rule of State immunity. In a lengthy and comprehensive judgment it had concluded that customary international law had not admitted of any exception – regarding allegations of conduct amounting to torture – to the general rule of immunity ratione materiae for State officials in the sphere of civil claims where immunity was enjoyed by the State itself. The findings of the House of Lords were neither manifestly erroneous nor arbitrary but were based on extensive references to international law materials and consideration of the applicant’s legal arguments and the judgment of the Court of Appeal, which had found in the applicants’ favour. Other national courts had examined in detail the findings of the House of Lords in the present case and had considered those findings to be highly persuasive. In these circumstances, the Court was satisfied that the grant of immunity to the State officials in the present case had reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases had not therefore amounted to an unjustified restriction on the applicant’s access to a court. However, in the light of the developments currently underway in this area of public international law, this was a matter which needed to be kept under review by the Contracting States.
Conclusion: no violation (six votes to one).
34356/06 40528/06 – Legal Summary, [2014] ECHR 176
European Convention on Human Rights
Human Rights
Updated: 03 August 2022; Ref: scu.521852
There is no rule of law to say that a third trial taken as far as a jury decision was an abuse of process. Dicta that that was the case were obiter. The question of whether there was oppression was to be decided on the facts of each case.
Times 30-Jan-2001
England and Wales
See Also – Henworth v United Kingdom ECHR 2-Nov-2004
The claimant had been tried for murder, but had undergone two retrials. On the second he said there was a rule of law that a defendant should not be tried a third time after two juries had failed to agree a conviction. He refused to take any part . .
See Also – Henworth v United Kingdom ECHR 2-Nov-2004
The claimant had been tried for murder, but had undergone two retrials. On the second he said there was a rule of law that a defendant should not be tried a third time after two juries had failed to agree a conviction. He refused to take any part . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.88500
The prosecutor (for the local authority) appealed against a termination of the prosecution as an abuse of process.
Held: The Magistrates were wrong to have found that the prosecution was an abuse of process. Though, the prosecuting local authority’s waste management enforcement policy allowed for courses of action other than prosecution, it was for the authority to decide when to prosecute, and it was only when an abuse was plainly shown that a court should intervene.
Pill LJ, Cranston J
[2009] EWHC 1844 (Admin)
Environmental Protection Act 1990 43
Updated: 30 July 2022; Ref: scu.372669
The defendant challenged the inclusion in a control order of an order to submit to personal searches. The Secretary of State appealed against a refusal of the order to ermit the searches.
Held: The appeal failed. Such orders were made solely under the 2005 Act, and the section gave an exhaustive list of the possible elements of an order. The draftsmanship suggested that what was not included was excluded. No power of personal search was listed. If it was not a deliberate omission, it was still for parliament to remedy it. The fundamental common law rights of personal security and personal liberty prevented any official search of an individual’s person without explicit statutory authority. Applying the principle of legality, it held that section 1(3) of the Prevention of Terrorism Act 2005 was insufficiently clear to indicate that Parliament intended to abrogate the controlee’s fundamental rights that were in play.
Lord Justice Sedley, Lord Justice Dyson and Lord Justice Wilson
[2009] EWCA Civ 786, Times 21-Oct-2009, [2010] 1 QB 585, [2010] 2 WLR 731
Prevention of Terrorism Act 2005 1(3)
England and Wales
Appeal from – Secretary of State for the Home Department v GG Admn 12-Feb-2009
A control order under the 2005 Act could not include a right for officers to conduct a personal search. However a 16-hour per day curfew together with a relocation from Derby to Chesterfield and which presented no difficulties for family visits was . .
Cited – BH v Secretary of State for The Home Department Admn 17-Nov-2009
The claimant was subject to a non-derogating control order under the 2005 Act. A relaxation was sought to allow him to visit his solicitors. But was offered subject to conditions which included a requirement that he be subject to a personal search. . .
Cited – AJA and Others v Commissioner of Police for The Metropolis and Others CA 5-Nov-2013
The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.361457
The defendants had been separately convicted of murder several years ago. They sought the quashing of the convictions and substitution of convictions for manslaughter on the grounds of diminished responsibility.
Held: The appeal of Erskine succeeded, but that of Williams failed. In the first case there had been evidence to support the defence now promoted. In Williams’ case there was not.
The decision whether to admit fresh evidence on an appeal is fact specific and the court has a wide discretion, focusing on the interests of justice. The fact that the issue was not raised at trial does not automatically preclude its reception. However, if an appellant were allowed to advance on appeal a defence which could and should have been put before the jury, the trial process would be subverted. If a defence was not raised at trial which could have been raised, or evidence was not deployed which was available to be deployed, it is unlikely to be in the interests of justice to allow it to be raised on appeal unless a reasonable and persuasive explanation was given for the omission.
The critical test is whether the receipt of the evidence is ‘necessary or expedient in the interests of justice’, and that is a highly fact-specific question.
In answering that question, counsel had produced to the court very great quantities of case law citations. The result had been an increase in the time taken without an improvement in quality. The court set out guidelines which should restrict the volume of case law to be cited. Where a defendant appealed against a conviction for murder raising the defence of diminished responsibility for the first time on that appeal, the legal references should be limited to the statute and to Pearson.
Lord Judge, CJ said: ‘the trial process demands that the defendant, no doubt after considering legal advice, must decide which defence to advance. In an ideal world, of course, if he were responsible for the killing, he would admit it. But even if he is responsible, he may, and often does, choose to plead not guilty. What he cannot do is to advance such a defence and then, after conviction, seek to appeal in order to advance an alternative defence, such as diminished responsibility. There is one trial, and that trial must address all relevant issues relating to guilt and innocence.’
Lord Judge, Lord Chief Justice, Lord Justice Thomas and Mr Justice Treacy
[2009] EWCA Crim 1425, Times 22-Jul-2009, [2009] 2 Cr App R 29, [2010] 1 WLR 183, [2010] Crim LR 48
Criminal Appeal Act 1968 832, Criminal Appeal Act 1995
England and Wales
Cited – Practice Direction (Criminal Proceedings: Consolidation) CACD 8-Jul-2002
. .
Cited – Regina v Criminal Cases Review Commission ex parte Pearson Admn 18-May-1999
The defendant sought judicial review of the decision not to refer her case back to the court of appeal. She had been convicted of the murder of her hsuband’s new partner. She said it had been her husband.
Held: The court set out the approach . .
Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Cited – Kenyon v Regina CACD 11-May-2010
The defendant appealed against her conviction for murder, based upon her own informal confessions to third parties.
Held: The appeal was dismissed. There were proper reasons choices made at trial about what evidence should be put forward, and . .
Cited – Brown v The Queen PC 9-Feb-2016
Court of Appeal of Jamaica – Appeal against conviction for murder – challenge as to capacity to plead.
Held: The appeal against conviction failed, but the appeal against sentence succeeded. . .
Cited – Rogers, Regina v CACD 1-Jul-2016
The court was asked as to as to the circumstances in which s.23 of the 1968 Act applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence.
Held: The rules applicable to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.347707
Application for judicial review, where the claimant challenged the decision of the Crown Court at Snaresbrook not to award costs in his favour.
Pill LJ, Cranston J
[2009] EWHC 1506 (Admin), (2009) 173 JP 492
England and Wales
Updated: 30 July 2022; Ref: scu.347477
The court considered the application of section 58 to prosecution appeals and the use of the ‘acquittal agreement’.
[2008] EWCA Crim 370
England and Wales
Cited – Regina v RL and JF CACD 28-Aug-2008
Club, not members, prosecutable for breach
The Environment Agency appealed against dismissal of charges against the defendants who were officers in an unincorporated members’ golf club on whose land there had been pollution. The judge had ruled that the unincorporated association could have . .
Cited – LSA, Regina v CACD 16-May-2008
(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.266016
The Director challenged the decision of the magistrates to stay a prosecution of the defendant as an abuse of process. The defendant had been interviewed without a solicitor. He went away to seek legal advice. The solicitor requested a copy of the interview tape. None was provided, but a caution offered instead. The defendant refused the caution on advice because without the tape, the solicitor could not establish whether a caution was properly based.
Held: The appeal failed.
Rose LJ said: ‘the justices were fully entitled to conclude that the proceedings should be stayed as an abuse of process, the police having refused to disclose the terms of the interview, without which informed advice and informed consent to a caution could not properly be given. I make it clear that this does not mean that there is a general obligation on the police to disclose material prior to charge. That would, in many cases, be impracticable and, in some cases, (for example where there is an ongoing investigation) highly undesirable, as well as being outwith the contemplation of the legislation, the code or anything to be implied therefrom. But, in the present case, the failure to disclose the terms of the interview followed by the institution and pursuit of a criminal trial in the circumstances described amply justified the justices in reaching the conclusion which they did. ‘
Rose LJ, Silber J
[2001] EWHC 493 (Admin), [2002] 1 Cr App R 16, [2002] 1 WLR 815, [2001] 4 All ER 559
England and Wales
Cited – Wildman v Director of Public Prosecutions CA 23-Jan-2001
Where the prosecutor intended to apply to extend the custody the time limit, he should not be required to produce full documentation in the same way as for the trial itself. Nevertheless, he should produce enough information, according to the . .
Cited – Regina v Director of Public Prosecutions, ex parte Lee Admn 18-Mar-1999
Application for judicial review of CPS decision on disclosure of evidence before committal.
Held: The court recognised an ongoing duty of disclosure from the time of arrest. At the stage before committal, there are continuing obligations on . .
Cited – Regina v Croydon Justices Ex Parte Dean QBD 9-Mar-1993
The applicant a 17 year old assisted the police in a murder investigation on the understanding, induced by the police, that he would not himself be prosecuted. Some weeks later, at the instance of the CPS, the applicant was charged with a lesser . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.406166
The defendant was accused of a rape before 2000. No complaint was made until after 2004. The defendant wished to ask the complainant about her sexual history. It was argued that the former provision had been repealed, and tat the new provisons were not back dated, and that therefore there was no restriction.
Held: Though not explicit, the newer Act intended that the old rules should continue to apply to cases predating the new Act. The appeal was dismissed.
[2007] EWCA Crim 2581, Times 06-Dec-2007
Youth Justice and Criminal Evidence Act 1999 41, Sexual Offences Act 2003
England and Wales
Updated: 28 July 2022; Ref: scu.260282
A judge who had ordered the trial of an eleven year old boy in the Crown Court but in doing so had kept in mind the judgement in the cases of T v United Kingdom and V v United Kingdom, and had made appropriate adjustments to the proceedings, had acted properly within his discretion.
Times 05-Jul-2000
England and Wales
Updated: 28 July 2022; Ref: scu.85159
ECJ Order Of The Court – Article 99 of the Rules of Procedure – Directive 2003/4/EC – Validity – Public access to environmental information – Exception to the obligation to disclose environmental information where the disclosure compromises the ability of any person to receive a fair trial – Optional nature of that exception for Member States – Article 6 TEU – Second paragraph of Article 47 of the Charter
Safjan P
C-329/13, [2014] EUECJ C-329/13
European
Updated: 28 July 2022; Ref: scu.525528
Lord Woolman
[2012] ScotHC HCJDV – 10, 2012 SLT 476, 2012 GWD 4-67, 2012 SCCR 354
Scotland
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.524630
Miscarriage of justice – compensation – whether established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered.
Beatson LJ, Irwin J
[2013] EWHC 72 (Admin), [2013] Crim LR 587, [2013] Crim LR 587, [2013] 2 All ER 1055, [2013] WLR(D) 35
England and Wales
Updated: 28 July 2022; Ref: scu.470581
Whether the Crown Court has power under regulation 3 of the Costs in Criminal Cases Regulations 1986, made under section 19(1) of the Prosecution of Offences Act 1985, to make a costs order against a party to criminal proceedings in favour of another party’s counsel.
[2012] EWHC 3570 (Admin), [2013] WLR(D) 13, [2013] 2 Costs LR 220, [2013] 1 WLR 1880
England and Wales
Updated: 28 July 2022; Ref: scu.470489
The appellant had been convicted of murder. His appeal was successful, and the conviction was set aside, but he now challenged the order for his retrial. An off-duty policeman he had become involved in a fight with three men. He had drawn his gun and shot one, killing him. His appeal succeeded on the ground that the judge had misdirected the jury on self defence.
[1978] UKPC 31, [1979] Crim LR 176, [1979] 1 All ER 769, (1979) 69 Cr App R 33, [1980] AC 351, [1979] 2 WLR 274
England and Wales
Updated: 28 July 2022; Ref: scu.443357
(Jamaica) Appeal from order for second trial after acquittal of murder. The substantial evidence against the defendant had been discredited.
[1978] UKPC 29, [1979] 2 All ER 904, [1979] 2 WLR 221, [1980] AC 343, [1979] Crim LR 179
Commonwealth
Updated: 28 July 2022; Ref: scu.443359
Magistrates faced with a claim of abuse of process should recognise the wider responsibility for upholding the rule of law which must be that of the High Court. If a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court.
Buxton LJ
[1983] 1 WLR 108
England and Wales
Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.244672
[2004] EWHC 621 (Admin)
England and Wales
Updated: 28 July 2022; Ref: scu.195126
A drunken intent direction was not necessary in all cases where drunkenness affected the defendant’s state of mind in acts leading to a murder. A drunken intent remained an intent, and the judge should take care to avoid confusing the jury. Specific evidence was required of drunkenness to the point that intent was not to be inferred.
Times 05-May-2000, [2000] EWCA Crim 33
England and Wales
Updated: 28 July 2022; Ref: scu.158683
On a prosecution for theft, the prosecution failed to read a statement from the owner of the property, which statement had been served on the defence pursuant to Section 9 of the Criminal Justice Act 1967. It was submitted that there was no case to answer, but the court then allowed the statement to be read.
Held: Lloyd J said: ‘The discretion is not limited to cases where what has been omitted is merely formal or technical. It includes matters of substance. The essence of a discretion is that it can be exercised in more than one way. It must always, of course, be exercised judicially. But there is no case for arguing that the discretion was not exercised judicially here. In addition, this particular discretion must be exercised carefully, having regard to the need to be fair to the defendant and to reach finality.’
Lloyd J, Lord Lane CJ
[1981] JP 233
England and Wales
Cited – Christopher James Jolly v Director of Public Prosections Admn 31-Mar-2000
At trial in the magistrates court, the prosecution had failed to bring evidence that the computer used to analyse the defendant’s breath alcohol was in proper working condition. The defendant submitted no case to answer, and the magistrates allowed . .
Cited – Tuck v Vehicle Inspectorate Admn 24-Mar-2004
The defendant appealed a conviction for exceeding the gross permitted weight on a goods vehicle. The magistrates having heard the case, the defendant submitted there was no case to answer, the prosecution having failed to bring evidence as to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.195674
The expression ‘charge’ is usually used to describe a formal accusation that a person has committed a criminal offence.
Stratfield J said: ‘there is another principle that one ought to apply, namely, that section . . exists for the purpose of the liberty of the subject, and if there is any doubt in its construction I think that one ought to lean more in favour of the subject than against the subject.’
Stratfield J
[1954] 1 WLR 463, [1954] 1 All ER 5
England and Wales
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.640833
The claimant seeks judicial review of the decision of the Crown Prosecution Service (‘CPS’) to prosecute her for criminal damage rather than to offer her a conditional caution as an alternative disposal.
Simon LJ, Ouseley J
[2016] EWHC 2191 (Admin)
England and Wales
Updated: 26 July 2022; Ref: scu.569396
Appeal by way of case stated from the Youth Court as to the decision of the District Judge to hear at the same time and to give a single judgment where (a) there was a trial of one of two co-defendants who had pleaded not guilty to robbery and (b) there was a Newton hearing of the other defendant who had pleaded guilty to the robbery on a basis of plea which was not acceptable. The case stated involved two main issues:
i) Was the evidence of the co-defendant in the Newton hearing admissible in the trial of the other defendant and, if not, was the conviction safe? In the light of the correct concession by the respondent Director of Public Prosecutions that the evidence was inadmissible, we determined at the hearing that the conviction should be quashed and directed that that defendant be re-tried before a different judge as soon as possible.
ii) How the Youth Court should best proceed in such a case. As this was a question of more general interest, we stated we would give our reasons later in the light of further submissions that we directed be provided in writing.
Lord Thomas of Cwmgiedd, CJ, Singh J
[2016] EWHC 1976 (Admin)
England and Wales
Updated: 26 July 2022; Ref: scu.567867
The defendant appealed complaining of the admission of hearsay evidence when a witness asserts that he will not give oral evidence at the trial ‘through fear’.
Aikens LJ, Andrew Smith J, Rook QC
[2012] EWCA Crim 2564
England and Wales
Updated: 26 July 2022; Ref: scu.466409
[2009] EWHC 958 (QB)
Police and Criminal Evidence Act 1984 22
England and Wales
Appeal from – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346751
5258/08, [2009] ECHR 805
European Convention on Human Rights
See Also – Grzegorz Szwejer v Poland ECHR 18-May-2010
The claimant complained of the length of delay in facing his trial on criminal charges. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346639
Lord Carloway
[2009] ScotHC HCJAC – 50, 2009 GWD 18-287, [2009] HCJAC 50, 2009 SLT 723, 2009 SCCR 640, 2009 SCL 958
Scotland
Cited – HM Advocate v Aldred HCJ 1922
Lord Salvesen said: ‘It is however, I think, a fundamental and well established principle in criminal law that no expenses are awarded by the High Court – sitting as such and not as a court of review – either in favour of, or against, the accused. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346255
The court asked whether the conviction of a co-defendant was correctly admitted as evidence against her co-accused, and if not what was the effect on the fairness of the trial.
Held: The plea of the co-defendant should not have been admitted. The issue at this trial was as to matters on which the first trial and the plea did not address. However a close analysis of the procedure adopted did not suggest that the verdict was undermined.
[2009] EWCA Crim 912
Terrorism Act 2000 38B(1)(a) 38B(2), Criminal Justice Act 2003 74, Police and Criminal Evidence Act 1984 74(1) 74(2)
See Also – Regina v Kempster CACD 1990
Staughton LJ discussed the admission against a defendant of the fact of a co-defendant’s conviction: ‘On the more general question whether, if objection had been taken under section 78, the evidence should have been excluded, we have paid particular . .
Cited – Smith, Regina v CACD 26-Jul-2007
There had been admissions of pleas of guilty to robbery and the production of a firearm with intent to commit robbery, in the case of a co-accused who was alleged jointly to be involved. The court considered the admissibility of a co-defendant’s . .
Cited – Sherif and Others, Regina v CACD 21-Nov-2008
The defendants sought to appeal against their sentences for withholding information about terrorism.
Held: The factor determing the sentence was not principally the extent of the information which might have been provided, but rather the . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.344017
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 duties and left to their verdicts. The appellants said that steps should have been taken to investigate the alleged misconduct so as to allow him a fair trial.
Held: The judge was correct to to enquire: ‘the common law prohibition against inquiring into events in the jury room certainly extends to matters connected with the subject matter of the jury’s deliberations’ However the actual direction was insufficiently comprehensive or emphatic. ‘If the jury had been behaving as alleged by the juror in her letter, they required a strong, even stern, warning that they must follow the judge’s directions on the law, adhere to the evidence without speculation and decide on the verdicts without pressure or bargaining. I am unable to regard the directions given as having covered these areas with sufficient particularity and emphasis, and I consider that the jury required stronger and more detailed guidance and instruction. Without that it is difficult to be satisfied that the discussion in the jury room was conducted thenceforth in the proper manner. ‘ Appeal allowed.
Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell
Times 17-Feb-2005, [2005] UKHL 12, [2005] 1 WLR 704, [2005] 1 All ER 29
Contempt of Court Act 1981 8(1)
England and Wales
Cited – 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 . .
Cited – Ellis 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. . .
Cited – Regina v Lucas CACD 1991
An appellant should not be allowed to make tactical decisions not to object to something at his trial, but to save it for an appeal: ‘an appellant should not be able to blow hot and cold in this way.’ and ‘The appellant had himself been made aware . .
Cited – Regina 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 . .
Cited – Regina v Oke CACD 25-Jun-1997
The defendant said that the husband of a woman juror had sat in court while submissions were made about evidence later excluded form the jury. The evidence was of previous convictions and a similar prosecution against the defendant.
Held: Some . .
Cited – Regina 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 . .
Cited – Regina v Blackwell; Regina v Farley; Regina v Adams CACD 2-Mar-1995
The judge should investigate any suspicions of jury tampering immediately, but must be careful not to enquire as to the jury’s deliberations. The common law rule against investigating events in the jury room has recognised exceptions, but these are . .
Cited – Regina v Oke CACD 8-Jul-1997
A juror’s husband had been listening in court. He was present when the jury was sent out and matters prejudicial to the defendant were discussed.
Held: After questioning of the husband, there was no evidence to suggest that any improper . .
Cited – Regina v Robinson CACD 8-Nov-2002
The defendant appealed his conviction on the ground that a police informant had been a solicitor’s clerk.
Held: Appeal dismissed, but the use of members of the legal profession as informants, must always be dangerous, and capable of . .
Cited – Regina v Orgles and Another CACD 9-Jun-1993
Jurors were not to be questioned individually as to on their capacity to continue. Any questions must be put through the foreman, while the whole jury was in open court. It is an irregularity to question individual jurors in the absence of the . .
Cited – Regina 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 – Regina v Aitken; Regina v Bennett; Regina v Barson CMAC 8-Jul-1992
Recommendation to change rules allowing judge advocate to sit alone when the question is solely an issue of law. . .
Cited – Attorney 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.222769
Referring to the summing up upon the identification issues: ‘There is no doubt that there were two matters missing from it. The first was that there was no warning as to the dangers of identification evidence and the reasons for those dangers existing, namely the experience the Courts have had of mistakes in the past’. Both types of warning had been called for and the absence of them was a material misdirection.
[1994] 95 Cr App R 342
England and Wales
Cited – Regina v Elliott CACD 22-Dec-1997
The defendant appealed from convictions of wounding with intent, and murder. The issue was one of identification, and he criticised the absence of a full Turnbull direction.
Held: A Turnbull warning should warn the jury of the dangers inherent . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.183193
A court should grant an adjournment where a party’s witness was unable to attend, and that witness’ evidence was critical for a real issue in the case. Adjournments give rise to a proper sense of frustration in Justices confronted with frequent applications.
Farquharson LJ
[1994] RTR 40
England and Wales
Cited – Regina v Hereford Magistrates’ Court (ex parte Rowlands, Ingram); Regina v Harrow Youth Court (ex parte Prussia) Admn 10-Feb-1997
The power to adjourn a trial is conferred upon Justices by statute. The divisional court will intervene where defendants have been deprived of a fair opportunity to present their case. The decision whether to grant an adjournment is not a mechanical . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.179887
Bentley had been convicted of the murder of a policeman. He was of low intelligence and he was captured. His co-accused still held a gun. He shouted out ‘Let him have it’ He was convicted, but had said that he had only intended for the gun to be surrendered. A posthumous pardon was sought.
Held: The royal prerogative of pardon is a flexible power. The court recommended to the Home Secretary that he re-examine the case of Bentley who had been hanged in 1953 with a view to exercising the prerogative of mercy. Home Secretary’s decision to pardon prisoner is susceptible to Judicial Review and the court could not make an order. The Home Secretary’s discretion on the exercise of the prerogative of mercy is a wide discretion.
‘The present Home Secretary is fully aware that there is nothing to prevent him recommending the grant of a free pardon even in a case in which he is not persuaded that the conviction was wrong . . He continues to think that a free pardon should be recommended only when the Home Secretary of the day is satisfied that the convicted person was not guilty of the offence charged.’
The court did not think the Home Secretary’s understanding as non-justiciable policy: ‘the substance of the applicant’s case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.’
The Court concluded: ‘it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case.’
Gazette 13-Oct-1993, Independent 08-Jul-1993, Times 08-Jul-1993, [1994] QB 349, [1993] 4 All ER 442, [1994] 2 WLR 101
Convention and Protocol relating to the Status of Refugees 1951
England and Wales
Cited – Shields, Regina (on the Application of) v Secretary of State for Justice Admn 17-Dec-2008
The claimant had been convicted in Bulgaria of attempted murder. He had denied it, and somebody later confessed to the crime, but that confession had not been admitted. Having been transferred to England to complete his sentence, he now asked for a . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.87833
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had been obtained without the presence or availability of a lawyer in a manner subsequently ruled unlawful in Cadder.
Held: The Commission did not err in any of the respects complained of, as the courts below correctly held.
The fact that the evidence in question was and remains undisputed is plainly relevant to an evaluation of whether it is in the interests of justice to make a reference. It would not normally be in the interests of justice to quash a conviction merely because, under the law as now understood, there was a lack of admissible corroboration of a fact which had never been in dispute.
As to the failure to challenge the police interview before Cadder, Lord Pentland said: ‘I also consider that it was plainly important for the respondents to acknowledge that in the course of two full appeals against his conviction the petitioner never challenged the fairness of the manner in which the police conducted the interview. Nor did he seek to argue on appeal that the use made of the interview by the Crown at his trial was unfair.’
Given that the appellant’s admission that sexual intercourse had taken place was admissible under the law as it then stood, he was entitled to have the whole of the interview placed before the jury, as a matter of fairness, so that the jury were aware that the admission was made in the context of his also maintaining that intercourse had been consensual. The result was that, although he was entitled to give evidence in his own defence, he did not have to do so in order for his defence to be placed before the jury: they had already heard his account to the police. He did not, therefore, have to expose his account to cross-examination. That afforded him an opportunity which would not have existed if the interview had been inadmissible. In the event, he availed himself of that opportunity. That was a matter which could properly be taken into account by the Commission when evaluating the course of action which the interests of justice required.
Lord Kerr, Lord Clarke, Lord Reed, Lord Hughes, Lord Hodge
[2017] UKSC 20, 2017 GWD 11-144, 2017 SLT 365, UKSC 2015/0125
Bailii, SC, SC Summary, SC Summary Video
Criminal Procedure (Scotland) Act 1995 194B(1)
Scotland
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Appeal from – Gordon, for Judicial Review SCS 29-Nov-2013
(Extra Division, Inner House) Challenge to refusal of order for review of failure of the Scottish Criminal Cases Review Commission to refer the reclaimer’s case to the High Court.
Held: Appeal refused. . .
See Also – Gordon v Her Majesty’s Advocate HCJ 24-Apr-2009
. .
Cited – A v The Governor of Arbour Hill Prison 10-Jul-2006
Supreme Court of Ireland
Murray CJ said: ‘[T]he retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position … No one has ever suggested that every time there is a judicial . .
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
See Also – Gordon v HM Advocate HCJ 6-May-2010
Appeal rejected.
Lord Carloway considered each of the grounds of appeal with meticulous care, and reflected his evaluation of the likely effect on the jury’s verdict of the additional or undisclosed evidence, and of the potential evidence which . .
Cited – Regina v Budimir and Another CACD 29-Jun-2010
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – RM and Another, Re Scottish Criminal Cases Review Commission HCJ 25-Apr-2012
Lord Justice-General Hamilton considered the role of the Commission and its relationship with the court, and stated: ‘Although this court has been given the power to reject a reference in language that replicates the provision applicable to the . .
Cited – Chamberlain-Davidson, Re Scottish Criminal Cases Review Commission HCJ 25-Apr-2012
. .
Cited – RMM v Her Majesty’s Advocate ScSf 29-Nov-2012
. .
See Also – Gordon, Re Judicial Review SCS 24-Jan-2013
Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to refer his case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995.
Held: The application was refused.
As to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.581027
The applicant renewed his application for judicial review of the decision by the Commission not to refer his case to the court of appeal. He had been convicted of the murder of several members of his family, and was subject to a whole life term.
Held: The evidence sought to be relied upon to justify such a reference failed to pass the relevant test was insufficient to meet that standard.
Sir John Thomas, Globe J
[2012] EWHC 3768 (Admin)
England and Wales
Updated: 25 July 2022; Ref: scu.468885
All three claimants challenged the issue of a disclosure order and Gayle Horne challenged the issue of search warrants issued under Part 8 of the 2002 Act. The search warrants were issued under s.352 POCA and the disclosure order under s.357 POCA, pursuant to orders of His Honour Judge Forrester at the Central Criminal Court on 12 October 2010. The orders were made ex-parte.
Moses LJ, Eady J
[2012] EWHC 1350 (Admin), [2012] WLR(D) 156, [2012] Lloyd’s Rep FC 546, [2012] 1 WLR 3152
England and Wales
Updated: 25 July 2022; Ref: scu.459560
The court considered the justification for extended sentences of imprisonment for public protection: ‘Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence’.
Hamadi sought from the court a certificate that a point of law of general public importance was involved in its decision, namely whether the significant risk test was compatible with the European Convention on Human Rights. But this point had not been argued in any manner in the appeal in this court, and: ‘There exists a very limited power in this court to re-hear an apparently concluded appeal. It is a power to re-list where by administrative error or otherwise the appellant has been deprived of a proper hearing, so that the apparently concluded appeal can properly be described as a nullity, including cases where the court failed to follow the rules or well established procedure see R v Pinfold; R v Grantham; R v Berry and R v Rowan. An example of the second situation is R v Daniel where the court dealt with a renewed application without being aware that counsel was instructed to appear and thus without hearing him.’
Hughes LJ, King J, Barker QC HHJ Common Serjeant
[2010] 1 Cr App R (S) 24, [2009] EWCA Crim 840, [2009] Crim LR 669, [2009] 1 WLR 2517
Cited – Wilkinson and Others, Regina v, Attorney-General’s Reference No 43 of 2009 CACD 6-Oct-2009
The court examined the provisions distinguishing between sentences of imprisonment for life and imprisonment for public protection (IPP) in cases involving very serious gun and drugs crimes.
Held: The Avis case guidelines remained valuable, . .
Cited – Penfold v Regina CACD 1-Jun-2012
The defendant having been convicted of sex and other offences, had been sentenced to six years imprisonment for public protection. Working as an aerial and satellite dish installer, whilst working at an elderly lady’s house, he had first drugged her . .
Cited – Sturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .
Cited – Sturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.343902
The claimant sought to challenge by way of judicial review a decision to extend the custody time limits.
Sir anthony May, Dobbs J
[2009] EWHC 805 (Admin)
Updated: 24 July 2022; Ref: scu.341527
The defendant had been ordered to pay sums under a confiscation order. He asked for an extension of time to pay. The revenue said that no power existed. He was bankrupt. His only asset was an interest in the matrimonial home. His estranged wife refused to lower the sale price further to allow a sale. He was committed for the default in payment. He now sought judicial review.
Held: No error had been pointed to in the judge’s exercise of his discretion. The defendant had made many assertions which might have been supported, but produced no evidence at any of the hearings.
[2009] EWHC 807 (Admin)
Updated: 24 July 2022; Ref: scu.341528
The Court was asked as to the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. The applicant complained, in particular, about the fairness of criminal proceedings at the pre-trial stage and before the domestic courts.
Held: ‘the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation’
Christos Rozakis, President
4268/04, [2008] ECHR 1688
European Convention on Human Rights 6
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341455
Holdroyde J
[2009] EWHC 610 (QB)
Updated: 24 July 2022; Ref: scu.341184
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 European Convention on Human Rights
[2009] EWHC 689 (Admin)
Cited – 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: . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341179
Latham VP CACD LJ, Forbes, Rafferty DBE JJ
[2007] EWCA Crim 335, [2008] 2 Cr App Rep 26
England and Wales
Updated: 24 July 2022; Ref: scu.278882
Appeal by defendant in terrorist trial against ruling at preparatory hearing that he had no reasonable excuse defence.
[2008] EWCA Crim 922
Criminal Procedure and Investigations Act 1996, Terrorism Act 2000 58, Terrorism Act 2006 51
England and Wales
Appeal from – Regina v G; Regina v J HL 4-Mar-2009
G was to stand trial for possession of articles useful for terrorism. Whilst in prison, he collected and created diagrams and information and prepared plans to bomb a local army centre. When arrested he said he had done so to upset the prison . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.267233
The applicant complained that he had been arrested and detained by anti-terrorist police. At his trial evidence of his statement was challenged on the basis that it had been extracted from him under duress and that he had not had access to a lawyer.
36391/02, [2007] ECHR 332
European Convention on Human Rights
Human Rights
See Also – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.251698
The prosecutor sought to bring in documentary evidence in support of its application to commit the defendant for trial on fraud charges. During the course of proceedings the rules changed on admission of such evidence. The prosecutor appealed dismissal of the charges after they had been refused consent to admit the evidnce after the magistrate found they had not served the appropriate notice under the original procedure.
Held: The failure was not fatal to the case. The hearsay provisions had to be applied, but the magistrate should have relied upon s5D.
Times 17-Apr-2006, [2005] EWHC 3205 (Admin)
Magistrates’ Courts Act 1980 5(d) 6(1), Criminal Procedure and Investigation Act 1996
England and Wales
Applied – Regina v Osieh CACD 5-Mar-1996
The alteration of an indictment by the adding of a new charge is not completely to be barred, but the court may think it proper to allow an adjournment. . .
Cited – Regina v H CACD 22-Aug-2005
. .
Cited – Bradley, Regina v CACD 14-Jan-2005
The defendant complained that his criminal record had been placed before the jury under the Act, even though the proceedings had been begun before the commencement date.
Held: The provisions of the Act were procedural in nature and therefore . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.238417
The police authority took samples of DNA and fingerprints from the claimants whilst under arrest. After their cases had been dismissed or failed, they requested destruction of the samples and records, but this was refused.
Held: There was no engagement of the applicants’ art 8 rights to privacy. Even if there was, the keeping of the records would be justified under art 8.2. The new section of the 1984 Act was clear, and anyone would know what would happen with samples and fingerprints taken; they would be retained in the absence of special reason otherwise. The provision was ‘necessary in a democratic society for the prevention of disorder or crime’ and was proportionate.
Lord Justice Rose and Mr Justice Leveson
Times 04-Apr-2002, [2002] EWHC 478 (Admin), [2002] 1 WLR 3223
European Convention on Human Rights 8.1 8.2, Police and Criminal Evidence Act 1984 64(1A), Criminal Justice and Police Act 2001 82
England and Wales
Appealed to – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
Appeal from – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
At First Instance – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
At First Instance – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
At First Instance – Marper v United Kingdom; S v United Kingdom ECHR 27-Feb-2008
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
At First Instance – Marper v United Kingdom; S v United Kingdom ECHR 16-Jan-2007
Decision as to admissibility – the applicants complained of the retention by police of DNA and fingerprint samples and records.
Held: Admissible. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.168121
[2019] EWCA Crim 1533
England and Wales
Updated: 24 July 2022; Ref: scu.641214
The defendant appealed from an order of the judge that 88 days spent in custody should not go toward his sentence for theft and handling stolen goods. The judge said that the offences had been committed while the defendant was released on licence from a sentence for other offences.
Lord Judge LCJ, Wyn Williams J
[2009] EWCA Crim 374, [2009] 2 Cr App Rep (S) 85, [2009] Crim LR 461
England and Wales
Updated: 23 July 2022; Ref: scu.341834
Important point as to the proper interpretation of section 41 of the Youth Justice and Criminal Evidence Act 1999, a section which imposes restrictions at trials for a sexual offence on producing evidence or asking questions about the complainant’s sexual history.
Keene LJ
[2001] EWCA Crim 1877, [2002] 1 WLR 632, [2002] 1 Cr App Rep 22, [2002] Crim LR 73, [2002] 1 All ER 683
England and Wales
Updated: 23 July 2022; Ref: scu.342962
The defendant appealed against his conviction for murder.
Held: The appeal succeeded. After many years in prison, the original exhibits had been located and subjected to DNA analysis which proved that the defendant could not, despite his confession, have committed the murder.
Lord Judge emphasised the importance of the prosecutor’s duties of disclosure: ‘It is perhaps worth noting in this dismal story that both the prosecution and the police have demonstrated their commitment to the interests of justice by co-operating positively and fully with the solicitors for the appellant to try to ensure that all the available material was produced and examined. None of the original defence papers are in existence. They were destroyed years ago in accordance with ordinary professional practice.’
Lord Judge LCJ, Irwin, Wyn Williams JJ
[2009] EWCA Crim 490
England and Wales
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – Nunn 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 . .
Cited – Nunn, Regina (on The Application of) v Chief Constable of Suffolk Constabulary and Another SC 18-Jun-2014
Limits to Duty To Investigate
The claimant had been convicted of a murder. He continued to protest his innocence, and now sought judicial review of the respondent’s decision not to act upon his requests for further investigations which might prove his innocence.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.324718
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 conduct of the trial.’
Held: The claim failed. ‘a true analysis of the law is in any event less favourable to Mr Siddall; it is not suggested that he could establish beyond reasonable doubt that he was clearly innocent thereby bringing himself within the approach advocated by Lord Steyn.’ The claimant’s case and that of the other accused discharged ta the same time were not eth same and no argument from unequality in treatment would succeed.
Leveson LJ, Sweeney J
[2009] EWHC 482 (Admin)
England and Wales
Cited – Harris, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Dec-2007
The court considered an application for compensation by a former prisoner whose conviction had been overturned. . .
triticised – In re Boyle, Judicial Review QBNI 24-Oct-2007
The court considered an appeal by the claimant against refusal of compensation where he had served a term of imprisonment, but later had his conviction overturned. The conviction had relied upon challenged admissions which two police officers . .
Cited – Clibery, 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 . .
See Also – Siddall and Brooke, Regina v CACD 15-Jun-2006
The court considered cases referred to it by the Criminal Cases Review Commission. Each related to convictions for sexual assaults on children in care. New material including several untrue allegations by the complainants suggested that the . .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Cited – Allen (formerly Harris), Regina (on the Application of) v Secretary of State for Justice CA 15-Jul-2008
The claimant appealed against refusal of a review of the defendant to allow her compensation after her conviction for manslaughter of her infant son was quashed.
Held: The conviction had been based on flawed expert evidence.
Article 6(2) . .
Cited – 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 . .
Cited – O’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 . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.323741
Each claimant appealed against refusal of the Secretary to vary the non-derogating control orders to which they were subject.
Held: When the Secretary of State makes the decision to make a control order on a materially erroneous basis, the decision should be held to be flawed and will normally be quashed.
Mitting J
[2009] EWHC 512 (Admin)
Prevention of Terrorism Act 2005
England and Wales
Cited – Secretary of State for the Home Deparment v AN Admn 31-Jul-2009
The court re-considered a control order made on the basis of material withheld from the defendant. The Secretary of State had now withdrawn his reliance on that material, rather than make further disclosures. The prosecution invited the court to . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.323740
Authorities in South Africa sought assistance in recovering what they said were assets acquired in England and Scotland with the proceeds of crime in South Africa, and in particular a restraint order, an assets declaration and other investigative assistance. The Court of Appeal had restricted the ambit of the order to exclude Scotland.
Held: The decision gave the words of the Order their natural meaning and there was no reason to depart from it. Whether or not the location of ‘property’ to which a provision of POCA refers is subject to a territorial restriction depends upon the context. The appeal was dismissed.
Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] 2 All ER 223, [2009] 2 Cr App Rep 2, [2009] UKHL 17, [2009] 1 WLR 718
Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181)
England and Wales
Appeal from – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Cited – Perry and Others v Serious Organised Crime Agency SC 25-Jul-2012
The first appellant had been convicted of substantial frauds in Israel. He appealed against world wide asset freezing (PFO) and disclosure (DO) orders made against him. Neither the appellant, nor his offences were connected with the UK. A bank . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.322753
(New Zealand) The defendant had at a previous Privy Council appeal had his conviction for murder overturned. He now challenged the order for a retrial, saying that subsequent disclosures made this unfair.
Held: The order was refused. The applicant had a satisfactory alternative remedy which he must use.
When considering a request to re-open a decision: ‘What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.’
Lord Hoffmann, Lord Scott of Foscote, Lord Mance
[2008] UKPC 6
England and Wales
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.320876
The court considered the recovery of expenses by a receiver appointed to administer assets of money launderer. The receiver sought to exercise a lien over assets held for the prisoner by the prison to recover the costs of the receivership after the defendant’s conviction for money laundering. The defendant’s wife intervened, seeking to assert her own claim in matrimonial proceedings.
Held: The defendant’s appeal failed. The receivership order was been properly made, because the defendant was the legal owner of the property. A lien could properly be exercised over property held by the prison in the convict’s name. The wife’s ancillary relief claim did not have priority.
Longmore, Stanley Burnton, Elias LJJ
[2009] EWCA Civ 176, [2009] BPIR 958, [2009] 1 WLR 1845
England and Wales
See Also – In Re Glatt Admn 2002
If on an application made in respect of a confiscation order by the defendant the High Court is satisfied that the realisable property is inadequate for the payment of the amount remaining to be recovered under the order, the court shall issue a . .
See Also – Glatt, Regina v CACD 17-Mar-2006
. .
Appeal from – Sinclair In her Capacity As the Former Receiver v Glatt Executors of Estate of Chaja Glatt and others Admn 2008
The claimant, the former court appointed receiver of the defendant’s estate under a criminal confiscation order under the 1988 Act made on the defendant’s conviction for money laundering sought to claim against the prisoner’s assets hed by the . .
Cited – Lamb 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 . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.317976
Section 402(1)(a) of the 1993 Act has the effect of allowing the Financial Services Authority to bring proceedings for an offence of insider dealing under Part V without first obtaining the consent of the Secrretary of Sate or the DPP.
Sir Anthony May PQBD said: ‘In my judgment the structure and content of the 2000 Act amply demonstrate that it must have been the Parliamentary intention that the FSA would be able to institute proceedings under Part V of the 1993 Act without consent from outside. In the light of section 61(2) of the 1993 Act, and not overlooking paragraph 4 of Schedule 1 to the 1987 Act and the absence of such provision in the 2000 Act, section 402(1) is not tightly drawn. But the implication is to my mind abundantly plain. It is achieved by reading the words ‘may institute’ in section 402(1) as having the same meaning and effect as the same words in the passive voice ‘may be instituted by’ in section 401(2), so that the FSA may institute proceedings under section 402(1) on their own initiative and without the antecedent need to obtain the consent of the Secretary of State or the DPP. If a narrow argument of literal construction might not lead to that result, in my judgment the narrow argument is overwhelmed by the obvious general Parliamentary intention and the specific intention to be derived from those two sections.’
Sir Anthony May P
[2008] EWHC 3191 (Admin), [2009] 1 WLR 1905, [2009] Bus LR 1544, [2009] Lloyds Rep FC 152, [2009] Crim LR 445
Criminal Justice Act 1993 402(1)(a)
Cited – Rollins, Regina v CACD 9-Oct-2009
The court was asked whether the Financial Services Authority had itself the power to prosecute offences under the 2002 Act. The defence said that the FSA’s powers were limited to offences under the 2000 Act. The FSA relied on its common law power to . .
Cited – Rollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.293973
The Authority appealed against a decision allowing the defendant an extension of time to appeal against a closure order made under the 2003 Act.
Maurice Kay LJ, Wyn Williams J
[2009] EWHC 174 (Admin), (2009) 173 JP 207
Anti-Social Behaviour Act 2003 2
England and Wales
Updated: 23 July 2022; Ref: scu.293918
The prosecutor appealed from the acquittal of the defendant on a charge of murder. He had subsequently been said to have admitted to the offence while in prison on other offences.
Held: The confessions did amount to new evidence within the section. However the confessions were not reliable. They were inconsistent with the evidence, and the defendant’s capacity had required him to be interviewed in the presence of an appropriate adult. The appeal failed.
The view of the Director that it is in the public interest for the application to proceed, while a pre-requisite to the application, is not conclusive of it. The court must form its own view whether the statutory requirements are met, independently of him.
Lord Phillips of Worth Matravers CJ, Ouseley, Blake JJ
Times 04-Jan-2008, [2007] 1 Cr App R 8, [2007] EWCA Crim 3130, [2008] 1 WLR 627
England and Wales
Cited – Regina v Dunlop CACD 16-Jun-2006
The defendant had been acquitted of murder, but had later confessed to it on a number of occasions. An order was sought quashing the acquittal to allow a retrial.
Held: An order was made under the 2003 Act. This was the first such application. . .
Cited – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.262969
The defendant had already been judge unfit to plead by a jury, but then medical evidence became available to suggest he was now fit to plead. He challenged the decision to recommence the criminal proceedings.
Held: There was no rule to prevent him facing a second jury. It would be absurd for him to be given an absolute discharge in such circumstances.
Hooper LJ, Gross J
Times 24-Jan-2006, [2005] EWHC 3016 (Admin), [2006] 1 WLR 1992
Criminal Procedure (Insanity) Act 1964 4A
England and Wales
Updated: 23 July 2022; Ref: scu.238175
Judge C.G.B. Nicholson, C.B.E., Q.C.
[2004] ScotHC 10
Scotland
Updated: 23 July 2022; Ref: scu.195178
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. The fire officer suggested that the fire could not have been started without a continuous direct application of a flame for five seconds or more. She now complained that the prosecution in failing to preserve the evidence, had destroyed any opportunity for her to have the bedding investigated herself, and that the prosecution was an abuse.
Held: The Code of Practice required evidence to be preserved, but in this case there was no assertion that accelerants had been used, and nor had the defendant been substantially prejudiced. Appeal dismissed.
Lord Justice Potter, His Honour Judge Mellor, The Honourable Mr Justice Mackay
[2002] EWCA Crim 90
England and Wales
Cited – Regina v Feltham Magistrate’s Court, ex Parte Ebrahim, Director of Public Prosecutions Admn 21-Feb-2001
The court considered how cases should be handled where video evidence of relevance to a defendant’s case had been destroyed, and the defendant asserted abuse of process.
Held: The discretion to stay proceedings should be employed only in . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.178788
Justices are not entitled to decide on mode of trial in order to avoid separate trials.
Times 03-Apr-1995
Magistrates Courts Act 1980 19 20
England and Wales
Updated: 23 July 2022; Ref: scu.86967
Death of appellant need not stop appeal if the death is only problem in appeal.
Times 08-Jan-1997
England and Wales
Updated: 23 July 2022; Ref: scu.88228
Attorney General can refer case heard summarily if offence only triable on indictment.
Gazette 16-Jun-1993
England and Wales
Updated: 23 July 2022; Ref: scu.88226
The Court of Appeal has jurisdiction to hear Attorney General’s reference on an indictable crime committed by a juvenile.
Ind Summary 12-Apr-1993
England and Wales
Updated: 23 July 2022; Ref: scu.88227
Court of Appeal has no jurisdiction to hear an appeal against a judge’s decision to allow prosecution after tax settlement.
Times 24-Mar-1998
Criminal Justice Act 1987 7(1)
England and Wales
Updated: 23 July 2022; Ref: scu.88231
If a Crown Court could properly sentence youth aged between 14 and 17 to more than two years then the Magistrates should commit the youth to the Crown Court. Only if the nature of the offence was such that the Crown Court could not properly exercise its section 53(2) powers should the justices take the view they should not make it possible for the crown court to pass such a sentence.
Lord Justice Leggatt and Sir Iain Glidewell
Times 04-Apr-1996
England and Wales
Updated: 23 July 2022; Ref: scu.86948
A youth’s name is not to be publicised merely to attract publicity to other points which the judge wishes to make.
Times 07-Aug-1995, Ind Summary 11-Sep-1995
Children and Young Persons Act 1963 39
England and Wales
Updated: 23 July 2022; Ref: scu.86944
Challenge to the extension of custody time limits.
Maurice Kay LJ, Wyn Williams J
[2009] EWHC 85 (Admin)
Updated: 22 July 2022; Ref: scu.280243
ECJ Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Competence of the Community – Freezing of funds – Fundamental rights – Jus cogens – Review by the Court – Action for annulment and damages.
T-49/04, [2006] EUECJ T-49/04
European
Updated: 21 July 2022; Ref: scu.243089
When a court of Appeal now assesses the fairness of a trial conducted under earlier and different standards, it must apply the current standards for the purposes of the appeal. That need imply no criticism of a court which was acting accordance with then good or standard practice. There is a risk of a substantial number of appeals for old and very old cases, if this approach is followed, but no evidence as it stands that the risk is proving real.
Times 21-Nov-2000
England and Wales
Updated: 21 July 2022; Ref: scu.88516
The prosecution had been allowed to re-examine its witness to demonstrate inconsistencies.
Held: The Court doubted the legitimacy of such a course, and set out the three exceptions to the rule, namely recent complaints in sexual cases, statements forming part of the res gestae and statements rebutting an allegation of recent fabrication (as in this case). ‘There is no general further fourth exception to the effect that where counsel cross-examined to show inconsistencies, the witness can be re-examined to show consistency’.
Lane CJ
[1989] 89 Cr App R 302
England and Wales
Cited – Regina v Ali CACD 14-Nov-2003
The defendant appealed conviction and sentence for sexual assaults on young girls. He complained that the prosecution had been allowed to bring in evidence of previous consistent statements.
Held: The evidence of the mother had been admitted . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.187957
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning of Article 8(2), notwithstanding the width of the discretion conferred by section 3(5)(a). The claimant should have been allowed opportunity to make representations before disclosure, and the disclosure was unfair, but in the circumstances no damages were to be awarded.
The Honourable Mr Justice Maurice Kay The Honourable Mr Justice Mackay
[2003] EWHC 3002 (Admin), Times 06-Jan-2004
Criminal Justice Act 1987 2(5), Police and Criminal Evidence Act 1984 19, European Convention on Human Rights 8(3)
England and Wales
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Hunter 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 . .
Cited – Regina v Secretary of State for the Environment, ex parte Hackney London Borough Council CA 1984
The court doubted whether the doctrine of issue estoppel is applicable in judicial review proceedings. After holding that on the facts of the case it did not arise as a defence, the court approved, by the way, the judgment at first instance which . .
Cited – Domenichini v Italy ECHR 15-Nov-1996
The court was concerned with the monitoring of the correspondence of prisoners, including legal correspondence. The Italian law permitted such monitoring if a judge, in his discretion, ordered it in a reasoned decision.
Held: ‘The Court . .
Cited – Opoku, Regina (on the Application of) v Principal of Southwark College and Another Admn 17-Oct-2002
The claimant sought permission to add grounds to his application for leave to bring a judicial review.
Held: There was no specific rule excluding a court from granting such a rule. Here however there was no change to support any such . .
Cited – Regina v Chesterfield Justices and Others, Ex Parte Bramley QBD 10-Nov-1999
When police officers executed a search warrant, it was not proper to remove articles at large, in order later to sift through them, and then to return material not covered by the warrant. There is no absolute prohibition against removing articles . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – Woolgar v Chief Constable of Sussex Police and UKCC CA 26-May-1999
The issue was the potential disclosure by the police to the nurses’ regulatory body of confidential information concerning the plaintiff, the matron of a nursing home. There had been insufficient evidence to charge the plaintiff with a criminal . .
Cited – Marcel v Commissioner of Police of the Metropolis CA 1992
A writ of subpoena ad duces tecum had been issued requiring the production by the police for use in civil proceedings of documents seized during a criminal fraud investigation. The victim of the fraud needed them to pursue his own civil case.
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Tinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
Appealed to – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Appeal from – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – Energy 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. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.189144
At his trial the judge had added another defendant to the indictment, on the basis that the indictment was defective under the Act. The defendant appealed his conviction.
Held: The word ‘defective’ when used within the section included the idea of ‘lack’ or ‘want’, and such an amendment was permissible where no injustice would be created.
Lord Justice Rose, Mr Justice McKinnon and Mr Justice Poole
Times 18-Apr-2002
England and Wales
Updated: 21 July 2022; Ref: scu.169834
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 work some of the officers on whose evidence the case was based.
Held: The knowledge of the juror could amount to an extrinsic influence on the jury, so as to allow in turn an examination by the court of its nature and effect. In this case, ‘the fact that the juror knew the officers in the case reasonably well and had worked with them is enough to satisfy the bias test as regards the individual juror. There was a real possibility that she would be influenced by these factors in reaching her verdict.’ The appeal succeeded.
Dyson LJ, Forbes J, Rogers QC J
[2007] EWCA Crim 1700
England and Wales
Cited – Regina 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 . .
Cited – 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 . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Regina v Pan 29-Jun-2001
(Supreme Court of Canada) The court considered the reason behind the common law rule against a court examining the activities of a jury: ‘the rule seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations . .
Cited – Regina 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 . .
Cited – Regina v Abdroikov and Others CACD 28-Jul-2005
The defendants appealed against their convictions, saying that the presence of police officers on the jury suggested bias.
Held: The court rejected the suggestion that police officers should, because of their occupation, be automatically . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.254581
Possibility of an appeal from a conviction on the defendant’s admission.
[2013] EWHC 4343 (Admin)
England and Wales
Updated: 21 July 2022; Ref: scu.551754
The claimant sought to exercise the newly introduced freedom to apply for bail following conviction.
Burton J
[2008] EWHC 3123 (Admin)
Updated: 21 July 2022; Ref: scu.278988
The Lord Chancellor was right to disallow a judge from conducting a second trial after he had been promoted to the Court of Appeal.
Times 27-Jun-1996
England and Wales
Updated: 21 July 2022; Ref: scu.87217