Category: Criminal Practice

Neill v North Antrim Magistrates’ Court: HL 1992

The question before the House was whether a committal was a nullity when the magistrate had received inadmissible evidence.
Held: Committal proceedings should only be judicially reviewed in cases of ‘really substantial error leading to demonstrable injustice’. Lord Mustill stated: ‘I think it would be impossible to maintain that all errors of this kind on the part of examining magistrates must necessarily be fatal to the committal. The situation is far removed from that which existed in cases such as Rex v Gee [1936] 2 KB 442; Rex v Phillips [1939] 1 KB 63 and Rex v Wharmby (1946) 31 Cr App R 174, where the departure from the requirements of the Indictable Offences Act 1848 (11 and 12 Vict. c. 42) was so radical as to render the indictment, and hence the resulting trial, a nullity. Whatever the current state of the law about the difference between void and voidable adjudications it could not sensibly be said that in the present case the resident magistrate’s error entailed that there was no committal at all.’

[1992] 4 All ER 846, (1992) 97 Cr App R 121, [1992] 1 WLR 1220
Northern Ireland
Cited by:
Cited – Regina v Whitehaven Justices ex parte Thompson Admn 9-Oct-1998
Application for certiorari to quash a decision of the Whitehaven Magistrates’ Court to commit the applicant for trial to the Crown Court on two charges: the first, conspiring to supply heroin between December 1996 and July 1997; and the second, . .
Cited – Regina v Bedwellty Justices Ex Parte Williams HL 18-Sep-1996
A decision at committal to return an accused for trial is susceptible to judicial review where committal was based solely on inadmissible evidence or was based on evidence not reasonably capable of supporting it. The committal was quashed.
The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 06 January 2022; Ref: scu.670948

Times Newspapers Ltd and others v Regina: CACD 30 Jul 2007

The newspaper and other media companies appealed from an order restricting the reporting of parts of the evidence given in a trial for an offence under the 1989 Act. The objected that the order did not serve, as required, to protect any proceedings, and that it should not be a permanent ban.
Held: The order as made was quashed: ‘It is difficult . . to say that the order that Aikens J made under section 4(2) on 30 April was ‘necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings’. Had the question and answer been published, the criminal proceedings would have continued as before. We find it impossible to say that the repetition of that order, with indefinite effect, after the trial had been completed fell within the jurisdiction conferred by that section.’.
However, ‘we think that it would have been open to the judge, having made it plain that the question and answer had been given in open court in breach of his in camera direction, to have made it plain that to publish the question and answer would be a contempt of court. This it would have been as it would have constituted the frustrating of an order lawfully made by the court.’

Lord Phillips of Worth Matravers CJ Elias J, Griffith Williams J
[2007] EWCA Crim 1925, [2008] 1 Cr App Rep 16, [2008] 1 WLR 234, [2008] 1 All ER 343
Bailii
Criminal Justice Act 1988 159, Official Secrets Act 1989 2 3, Contempt of Court Act 1981 4(2), Official Secrets Act 1920 8(4)
England and Wales
Citing:
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Horsham Justices ex parte Farquharson CA 1982
The Court was asked whether the justices had had power under section 4(2) to impose reporting restrictions on committal proceedings pending the trial to which they related..
Held: They had. A premature publication in contravention of a . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media

Updated: 05 January 2022; Ref: scu.258767

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 for contempt of court, saying that his intention had been to support the court process, and that Mirza had changed the applicable law.
Held: Section 8(1) did not infringe the defendant’s rights, and therefore article 3 did not come into play. ‘In reality Mr Starmer is complaining about the warnings to jurors, which were based on a misinterpretation of section 8(1). But the terms of those warnings could not affect either the interpretation of the statute or the appellant’s guilt, one way or the other. At most, they might have been relevant to mitigation. In fact, however, the warnings are irrelevant since, by writing the letter, the appellant showed that he was not restrained by being warned that he would be in contempt of court if he disclosed the jury’s deliberations to anyone. That being so, the warnings would not have stopped him from contacting the court authorities, or consulting a lawyer about the matter, if he had wanted to.’
Lord Rodger of Earlsferry considered the application of section 3 of the 1998 Act to section 8 of the 1981 Act, saying: ‘As I have already explained, it was not disputed that the appellant could, if appropriate, invoke sections 3 and 4 of the 1998 Act. In my view, however, neither section avails him in this case. The appellant’s rights under article 10(1) were, of course, engaged but in terms of article 10(2) the right to freedom of expression can be subject to a restriction which is prescribed by law and is necessary in a democratic society ‘for preventing the disclosure of information received in confidence.’ In Gregory v United Kingdom (1997) 25 EHRR 577, 594, para 44, the European Court acknowledged that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law. Therefore, in so far as section 8(1) serves to reinforce that rule by making it an offence for a juror to disclose the information which he receives in confidence from his fellow jurors, the objective is sufficiently important to justify limiting the juror’s freedom of expression in this way. The provision is rationally connected to its aim and the means adopted are no more than is reasonably necessary, since the restriction does not apply to bona fide disclosures to the court authorities. The measure is accordingly ‘reasonably justifiable in a democratic society.” and ‘Section 3 of the 1998 Act comes into play only where it is needed in order to make a legislative provision compatible with a Convention right. As Mr Starmer accepts, however, when properly interpreted according to domestic canons of construction, section 8(1) is compatible with article 10 of the Convention. That being so, section 3 does not apply.’

Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2005] 1WLR 1825, Times 20-May-2005, [2005] UKHL 36, [2005] 3 All ER 1
Bailii, House of Lords
Contempt of Court Act 1981 8(1), European Convention on Huma Rights 10
England and Wales
Citing:
Appeal from – Attorney General v Scotcher Admn 16-May-2003
The defendant had acted as a juror. After the trial he wrote to the mother of the defendant and revealed aspects of the jury’s deliberations with which he felt unhappy.
Held: The action was a contempt of court. . .
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 – HM Attorney-General v Associated Newspapers Ltd and Others HL 4-Feb-1994
Following the acquittal of a prominent politician on a charge of conspiracy to murder, the New Statesman magazine published an article, based on an interview with one of the jurors, which gave an account of significant parts of the jury’s . .
Cited – Regina v Smith, Regina v Mercieca HL 16-Feb-2005
A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
Cited – The Scottish Criminal Cases Review Commission for an Order etc SCS 29-Aug-2000
The court drew attention to the difference between the situation where the court itself makes inquiries as to events in the jury retiring room with the aim of bringing the court in question into contempt and that where it makes inquiries with the . .
Cited – Practice Direction (Crown court: Guidance to Jurors) CACD 23-Feb-2004
Where jurors had concerns about the behaviour of fellow jurors, they should bring these to the attention of the judge during the trial rather than after. Jurors should be told of this, but not in such a way as to encourage inappropriate criticism of . .
Cited – Gregory v The United Kingdom ECHR 25-Feb-1997
gregory_ukECHR1997
A judge’s direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial for the defendant. In discussing the protection of the secrecy of jury deliberations: ‘The court acknowledges that the rule governing the . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .

Cited by:
Cited – HM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Criminal Practice, Human Rights

Updated: 05 January 2022; Ref: scu.225009

Regina v Bedwellty Justices Ex Parte Williams: HL 18 Sep 1996

A decision at committal to return an accused for trial is susceptible to judicial review where committal was based solely on inadmissible evidence or was based on evidence not reasonably capable of supporting it. The committal was quashed.
The ‘Queen’s Bench Division of the High Court has normally in judicial review proceedings jurisdiction to quash a decision of an inferior court, tribunal or other statutory body for error of law’
Lord Cooke of Thorndon said: ‘The right to cross-examine at a preliminary hearing finds no place in most human rights instruments, perhaps in none. It may not long survive anywhere in the United Kingdom. This case must be determined nevertheless on the footing that the right still exists here and may be of significant value, at least of a tactical kind, to the defence. Your Lordships are not entitled to prefer a changed conception of the public interest to the clear statutory law.’
‘In Ex parte Page the five members of the Appellate Committee (Lord Keith of Kinkel, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley) were unanimous that usually any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed by certiorari for error of law. There were, however, observations to the effect that as regards an inferior court of law a statutory provision that its decision is to be `final and conclusive’ or the like will confine the remedy to cases of abuse of power, acting outside jurisdiction in the narrow sense, or breach of natural justice.’
Lord Cooke agreed: ‘My Lord, in my respectful opinion it would be both illogical and unsatisfactory to hold that the law of judicial review should distinguish in principle between a committal based solely on inadmissible evidence and a committal based solely on evidence and a committal based solely on evidence not reasonably capable of supporting it. In each case there is in truth no evidence to support the committal and the committal is therefore open to quashing on judicial review. Nonetheless there is a practical distinction. If justices have been of the opinion on admissible evidence that there is sufficient to put the accused on trial, I suggest that normally on a judicial review application a court will rightly be slow to interfere at that stage. The question will more appropriately be dealt with on a no case submission at the close of the prosecution evidence, when the worth of that evidence can be better assessed by a judge who has heard it, or even on a pre-trial application grounded on abuse of process. In practice successful judicial review proceedings are likely to be rare in both classes of case, and especially rare in the second class.’

Lord Cooke of Thorndon
Gazette 18-Sep-1996, [1997] AC 225, [1996] 2 Cr App R 594, [1996] 3 All ER 737
Supreme Court Act 1981 29(3)
England and Wales
Citing:
Cited – Neill v North Antrim Magistrates’ Court HL 1992
The question before the House was whether a committal was a nullity when the magistrate had received inadmissible evidence.
Held: Committal proceedings should only be judicially reviewed in cases of ‘really substantial error leading to . .

Cited by:
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – R, Regina v CACD 4-Apr-2008
The defendant appealed his conviction for rape, saying that the complainant’s evidence had wrongfully been allowed to be given over a remote video link. Provisions to allow such means of giving evidence had been intended to be phased in only as . .
Cited – Hamill, Re Judicial Review (No 2) QBNI 8-Dec-2017
. .
Cited – Regina v Whitehaven Justices ex parte Thompson Admn 9-Oct-1998
Application for certiorari to quash a decision of the Whitehaven Magistrates’ Court to commit the applicant for trial to the Crown Court on two charges: the first, conspiring to supply heroin between December 1996 and July 1997; and the second, . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Magistrates

Updated: 05 January 2022; Ref: scu.86109

Regina v Whitehaven Justices ex parte Thompson: Admn 9 Oct 1998

Application for certiorari to quash a decision of the Whitehaven Magistrates’ Court to commit the applicant for trial to the Crown Court on two charges: the first, conspiring to supply heroin between December 1996 and July 1997; and the second, supplying heroin. A submission of no case was rejected.
Held: The request was refused: ‘the old-style committal proceedings were spread over no less than five days. Five witnesses, including Brassington, gave oral evidence and were cross-examined. Numerous witness statements were read. In her affidavit the magistrate makes it plain that she carried out a careful analysis and evaluation of the evidence that was led before her. Mr Latif commented on each individual item of evidence. He submitted that in itself each item did not support the existence of a conspiracy. It is not surprising that, looked at in isolation, each item did not support the count of conspiracy. But the magistrate was not looking at each item in isolation; she was looking at the cumulative effect of all the pieces of evidence that she identified in her affidavit. It is conceded that she was right to look at the evidence on that cumulative basis and to see whether a number of perhaps small indications when looked at in their own right, were sufficient in aggregate to mean that the applicant had a case to answer.
She having done that, having heard the witnesses, it is in practical terms quite impossible for this court, not having heard the evidence, to say that her decision was Wednesbury perverse. It is plain from the two authorities which I have cited that it is an inappropriate use of judicial review to challenge committal proceedings on the basis of insufficiency of evidence, save in the very clearest of cases. ‘

Vice President of the Queens Bench Division,
(Lord Justice Kennedy )
,
An
Mr Justice Sullivan
[1998] EWHC Admin 940
Bailii
England and Wales
Citing:
Cited – Regina v Bedwellty Justices Ex Parte Williams HL 18-Sep-1996
A decision at committal to return an accused for trial is susceptible to judicial review where committal was based solely on inadmissible evidence or was based on evidence not reasonably capable of supporting it. The committal was quashed.
The . .
Cited – Neill v North Antrim Magistrates’ Court HL 1992
The question before the House was whether a committal was a nullity when the magistrate had received inadmissible evidence.
Held: Committal proceedings should only be judicially reviewed in cases of ‘really substantial error leading to . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Criminal Practice

Updated: 05 January 2022; Ref: scu.139061

S v Crown Prosecution Service: Admn 13 Oct 2015

The claimant challenged the guidance to CPS to the effect that where a victim requested a review of a decision not to prosecute, the alleged offender should not be informed.
Held: Leave to bring judicial review proceedings was refused. The Guidance was entirely lawful.

Sir Brian Leveson P QBD, William Davis J
[2015] EWHC 2868 (Admin), [2015] WLR(D) 423, [2016] 1 WLR 804, [2016] 2 All ER 385, [2016] 1 Cr App R 14, [2016] Crim LR 215
Bailii, WLRD
England and Wales

Criminal Practice

Updated: 04 January 2022; Ref: scu.553282

Regina v Haringey Justices Employment ex parte Branco: Admn 24 Oct 1997

The defendant sought judicial review of his conviction saying that the chairwoman knew his mother and was antipathetic to her, and had shown bias in the trial.
Held: There had been confusion, but no real risk of bias. The review was refused.

[1997] EWHC Admin 922
England and Wales
Citing:
Cited – Regina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
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.

Criminal Practice, Magistrates

Updated: 04 January 2022; Ref: scu.137867

Janner, Regina (on The Application of) v The Crown Prosecution Service: Admn 13 Aug 2015

The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being required to attend court.
Held: Article 8 was engaged, but not article 3: ‘Article 8 is a qualified right and must be weighed against other considerations. In this context they include the obvious and strong public interest in ensuring those summoned to court attend when required. Equally, there is a compelling public interest in public justice. The Court must not become a place of avoidable spectacle, but it is very important that the route to justice should be public.
The Defendant was clearly conscious of that, even if the argument before him did not focus on Article 8. Given the nature of the distress feared, and its short duration and that arrangements can minimise the effect on the Claimant, we unhesitatingly conclude that the balance comes down in favour of the Claimant’s attendance, for the brief period required.’

Rafferty LJ, Irwin J
[2015] EWHC B15 (Admin)
Bailii
Crime and Disorder Act 1998 51, European Convention on Human Rights 3 8
Citing:
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Iovchev v Bulgaria ECHR 2-Feb-2006
To engage article 3, the claimant needs to assert a level of suffering which might be described as ‘intense’. . .
Cited – Gorodnitchev v Russia ECHR 24-May-2007
The applicant complained in particular have suffered at different times of his detention, treatment contrary to Article 3 of the Convention and have not been tried within a reasonable time.
Held: A finding of a breach of Article 3 requires a . .
Cited – Grant and Another v The Ministry of Justice QBD 19-Dec-2011
To establish a breach of Article 3 the Claimant must show he has suffered the ill- treatment he alleges, and that it amounts to a violation of Article 3. The claimant prisoners complained that a lack of in-cell sanitation infringed their human . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Health, Human Rights, News

Updated: 03 January 2022; Ref: scu.552050

Brown, Regina v: CACD 29 Jul 2015

The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. They said this was to protect both the lawyers and the client who had a history of self harm. A nurse had in fact intervened during an interview. He suggested that the presence of the two nurses contributed to the appellant’s decision to instruct his counsel not to cross-examine the Rampton witnesses, and that it inhibited the ability of counsel to give advice and take instructions shortly before the appellant gave evidence. The presence of the nurses – state employees with a custodial function – who were able to overhear confidential communications meant that this right was abrogated both in itself and in its consequences at the appellant’s trial, thereby rendering the proceedings unfair.
Held: The appeal failed: ‘In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step.’

Fulford LJ, Holroyd, Singh JJ
[2015] EWCA Crim 1328, [2015] WLR(D) 344
Bailii, WLRD
England and Wales
Citing:
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Grant CACD 4-May-2005
The police had secretly and unlawfully recorded conversations between the defendant and his solicitor whilst he was in custody. The judge rejected a claim of abuse of process. He appealed his conviction for murder.
Held: The appeal was . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Cited – Warren and Others v Attorney General of The Bailiwick of Jersey (Court of Appeal of Jersey) PC 28-Mar-2011
(Jersey) Lord Dyson criticised elements of the decision in R v Grant and said: ‘Nevertheless, the Board respectfully considers that the decision in R v Grant was wrong. The statement at para 54 suggests that the deliberate invasion of a suspected . .
Cited – Regina v Francom; Regina v Latif (Clare); Regina v Latif (Melna); Regina v Bevis; Regina v Harker CACD 24-Oct-2000
The judge failed to give a direction in accordance with recommendations from the Judicial Studies Board and counsel in the case as to the need for the jury not to draw inferences from the defendants’ failure to mention certain facts on interview. . .
Cited – S v Switzerland ECHR 28-Nov-1991
ECHR Judgment (Merits and just satisfaction) – Violation of Art. 6-3-c; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
Cited – Regina v Togher, Regina v Doran, Regina v Parsons CACD 9-Nov-2000
In the light of the Human Rights Act, it would now be almost inevitable that a finding that the defendant had not had a fair trial, would lead to a finding that his conviction could not be regarded as safe. Where a defendant had pleaded guilty, but . .
Cited – Brennan v The United Kingdom ECHR 16-Oct-2001
The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – JSC BTA Bank v Ablyazov and Others ComC 8-Aug-2014
The Claimant sought disclosure from the First and Second Respondents of documents relating to their assets which would attract legal professional privilege unless falling within the iniquity exception to such privilege, and which are currently held . .
Cited – Ocalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 03 January 2022; Ref: scu.551038

Regina v Thames Magistrates’ Court ex parte Horgan: Admn 25 Nov 1997

That the same rules apply to time limits for prosecution of a company as for others, for summary offences, did not apply to either way offences tried summarily.

Times 09-Dec-1997, Gazette 17-Dec-1997, [1997] EWHC Admin 1045
Magistrates Courts Act 1980 127, Companies Act 1986 731(2)
England and Wales

Criminal Practice, Company

Updated: 03 January 2022; Ref: scu.137990

HM Advocate v Coulson: HCJ 3 Jun 2015

As part of the proof of the alleged falsity of Mr Coulson’s evidence, the prosecution wanted to refer to evidence given by him to a Select Committee of the House of Commons.
Held: ‘Article 9 of the Bill of Rights provides that proceedings in Parliament ought not to be ‘impeached or questioned’. It is true that these are words with a primarily negative connotation, certainly in modern English but also, as it would appear from the Oxford Dictionary, seventeenth century English. That does not mean that it is only criticism of Parliamentary proceedings that is prohibited by the doctrine of privilege; it also applies when they are in any way put in issue. As we have already indicated, in Prebble the Privy Council adopted the terms of section 16(3) of the (Australian) Parliamentary Privileges Act 1987 as an accurate statement of the principle . . .They prohibit the leading of evidence questioning anything forming part of proceedings in Parliament but they also prohibit the leading of evidence for the purpose of relying on the truth etc of anything forming part of proceedings in Parliament; otherwise establishing the credibility etc of any person; or inviting the drawing of inferences or conclusions wholly or partly from anything forming part of these proceedings. Parliamentary proceedings are simply off-limits when it comes to litigation. They cannot be relied on either to make or to rebut a case and it does not matter whether, for the purposes of litigation, their integrity is being disputed or is being endorsed.’

Lord Burns
[2015] ScotHC HCJAC – 49, 2015 GWD 20-336, 2015 SLT 438, 2015 SCCR 219, 2015 SCL 588
Bailii
Scotland
Cited by:
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 03 January 2022; Ref: scu.550968

Alexander Von Starck v The Queen: PC 28 Feb 2000

(Jamaica) The defendant had fatally stabbed a woman. On arrest, he admitted killing her and that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the deceased was found, and a jar containing cocaine. He blamed the cocaine for causing him to commit the crime. He did not give evidence but made an unsworn statement from the dock. He did not deny killing the deceased, or mention taking cocaine, but said that he did not know what had happened.
Held: A judge should recognise that counsel presenting a case to the jury may choose to emphasise some possible verdicts and have good reason for not mentioning others. Nevertheless the judge had a duty to place all the possible verdicts before the jury, and whether or not counsel had sought to advance them, provided only that there was evidence which properly raised the issue in the trial. ‘As a matter of law it is not disputed that the voluntary consumption of drugs, as well as the voluntary consumption of alcohol, may operate so as to reduce the crime to murder to one of manslaughter on the ground that intoxication was such that the accused would not have been able to form the specific intent to kill or commit grievous bodily harm.’
Lord Clyde: ‘The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (unreported), 17 December 1998; Appeal No. 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v The State the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, ‘If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter’. In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury.’

Lord Clyde
Times 16-Mar-2000, [2000] UKPC 5, [2000] 1 WLR 1270, (2000) 56 WIR 424
Bailii, PC, PC
England and Wales
Citing:
Cited – Regina v Duncan CACD 1981
Where a defendant has not given evidence the whole of a ‘mixed’ statement, one which includes matter which is incriminating and also matter which is exculpatory, should be admitted in evidence, if it is to be admitted at all. Nevertheless, the court . .
Cited – Regina v Chief Constable of The Royal Ulster Constabulary Ex Parte Begley; Regina v McWilliams HL 24-Jul-1997
There is no right at common law to have a solicitor present during a police interview. There was no infringement of the suspect’s human rights by the Northern Ireland Rules. The House discussed its ability to take the law forward: ‘It is true that . .
Cited – Mills and Others v The Queen PC 1-Mar-1995
A judge’s identification direction need not always warn on the need for witnesses to be convincing. An unsworn statement from a defendant is significantly inferior to oral evidence. . .

Cited by:
Cited – Coutts, Regina v CACD 21-Jan-2005
The defendant appealed his conviction for murder, saying that the judge should have left to the jury the alternative conviction for manslaughter. The victim had died through strangulation during a sexual assault by the defendant. He said it had not . .
Cited – Hunter, Moodie v The Queen PC 8-Oct-2003
PC (Jamaica) The defendants appealed against their convictions for capital murder.
Held: The appeals were allowed, and non-capital convictions substituted. It is not enough to comply with section 2(2), for . .
Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Approved – Shaw and Campbell, Regina v CANI 8-Jun-2001
The defendant appealed his conviction for murder saying the judge should have left the alternative charge of having assisted offenders to the jury.
Held: Referring to Fairbanks: ‘It was argued on behalf of the Crown that this test was not . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 03 January 2022; Ref: scu.174642

Regina v Director of Public Prosecutions ex parte Treadaway: Admn 31 Jul 1997

The applicant had been convicted of a robbery and served a long prison sentence. After release he was awarded damages against some of the police officers for assault. The DPP decided not to proceed against the officers by way of criminal proceedings. The applicant’s conviction was later quashed. The prosecutor replied saying he had applied the code.
Held: A prosecutor basing his decision to proceed or not after a civil court has made a finding must examine that civil finding closely. Had he done so here he would have seen the evidence he had said was missing. Review was granted.

Times 31-Oct-1997, [1997] EWHC Admin 741
Prosecution of Offences Act 1985 10
England and Wales
Citing:
See Also – Treadaway v Chief Constable of West Midlands QBD 23-Sep-1994
The torture of a suspect by police justified aggravated and exemplary damages, in this case andpound;50,000. Damages for a serious assault by police are not to be reduced for the character of the plaintiff. . .
Cited – C (A Minor) v Director of Public Prosecutions HL 17-Mar-1995
The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good . .
Cited – Regina v Crown Prosecution Service ex parte Waterworth QBD 1-Dec-1995
. .

Cited by:
See Also – Treadaway v Chief Constable of West Midlands QBD 23-Sep-1994
The torture of a suspect by police justified aggravated and exemplary damages, in this case andpound;50,000. Damages for a serious assault by police are not to be reduced for the character of the plaintiff. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 03 January 2022; Ref: scu.137686

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 Court. The court had quashed a conviction based upon a supposed error in the entry of the judgment, but the court had since discoved that the error lay only in the court recorder’s transcription.
Held: The powers of the Division are entirely statutory. Once the judgment was recorded it could not be amended, though: ‘There are two exceptions to this general rule to the effect that the court does have power to re-hear an appeal if (i) on a proper analysis, the previous order is a nullity; or (ii) a defect in the procedure may have led to some real injustice.’
That the CACD has a similar iplicit jurisdiction to that in the CA: ‘ does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach’

John Thomas LCJ, Sweeney, Warby JJ
[2015] EWCA Crim 1277, [2015] WLR(D) 315
Bailii, WLRD
Criminal Appeal Act 1968 1
England and Wales
Citing:
Cited – Regina v Cross (Patrick) CACD 1973
The court had allowed an appeal against sentence; but later the same day the defendant was brought back because the court thought that he had not been frank in answering questions about another offence.
Held: The court set aside its original . .
Cited – Pedley, Martin and Hamadi v Regina CACD 14-May-2009
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 . .
Cited – Blackwood, Regina v CACD 5-Mar-2012
The defendant had succeeded in his appeal against a rape conviction. After the case, and his release, the prosecution sought a retrial. The defendant now argued that the court was functus officio.
Held: An order on an appeal becomes final when . .
Cited – Director of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
Cited – Regina v Daniel CACD 1977
The applicant renewed his application for leave to appeal, which had been refused by the single judge. He instructed solicitors who wrote to the court to advise that they intended to instruct Counsel on the renewed application. Due to an . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Connelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
Cited – Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation HL 1981
The parties had referred their dispute to arbitration, but there had been inordinate delay, and the plaintiffs complained that the delay had prejudiced them, and sought an injunction to prevent further contuance of the arbitration, saying that the . .
Cited – Regina v Pinfold CACD 1988
Once a person convicted of an offence on indictment appeals against that conviction and that appeal has been determined on its merits, the court has no jurisdiction to re-open it on fresh evidence coming to light.
Lord Lane CJ considered the . .
Cited – Pedley, Martin and Hamadi v Regina CACD 14-May-2009
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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 02 January 2022; Ref: scu.550360

X (A Minor), Re Judicial Review: QBNI 23 Jun 2015

The applicant is X, a 14 year old minor who resides with his parents and suffers from a moderate learning disability. He seeks leave to apply for an order of certiorari to quash three decisions of the Public Prosecution Service (‘PPS’) not to prosecute a 16 year old boy Y whom he alleges raped him, that there was insufficient evidence to afford a reasonable prospect of obtaining a conviction against Y and the conclusion in the review of the decision not to prosecute Y. He further seeks leave to apply for a declaration that the above three decisions are unlawful, ultra vires and of no force or effect.

Morgan LCJ, Coghlin LJ and Gillen LJ
[2015] NIQB 52
Bailii

Northern Ireland, Criminal Practice

Updated: 02 January 2022; Ref: scu.549866

S v Mthembu: 10 Apr 2008

Saflii (South Africa: Supreme Court of Appeal) The evidence of an accomplice extracted through torture, (including real evidence derived from it), is inadmissible, even where the accomplice testifies years after the torture. The link was inextricable.

Cameron, Maya et Cachalia JJA
379/07, [2008] ZASCA 51, [2008] 3 All SA 159 (SCA), [2008] 4 All SA 517 (SCA), 2008 (2) SACR 407 (SCA)
Saflii
Commonwealth
Cited by:
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .

Lists of cited by and citing cases may be incomplete.

International, Criminal Practice

Updated: 02 January 2022; Ref: scu.445168

Misick and Others v The Queen: PC 25 Jun 2015

Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge had incorrectly directed the trial to be by himself alone and without a jury.
Held: The challenge failed. tTe Board had no doubt that any objective observer would see no danger of any lack of independence of the trial judge: ‘The following aspects of his position are not in doubt:
(i) the Constitutional guarantee of judicial independence in section 83(1) . . applies to him as it does to any other judge;
(ii) so too does section 84 guaranteeing his remuneration, allowances and terms of service: see para 17 above;
(iii) he has been appointed on the recommendation of the independent (and, as to the majority, judicial) JSC;
(iv) he is undoubtedly guaranteed security of tenure during his appointment, except in the case of cause shown to this Board under the provisions of section 85

Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKPC 31, [2015] 2 Cr App R 23, [2015] WLR(D) 277, [2015] 1 WLR 3215
Bailii, Bailii Summary, WLRD
Commonwealth
Citing:
Cited – Valente v The Queen 19-Dec-1985
Canlii Supreme Court of Canada – Courts — Charter of Rights — Independent tribunal — Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal — . .
Cited – Findlay v United Kingdom ECHR 25-Feb-1997
‘in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the . .
Cited – Starrs v Ruxton HCJ 11-Nov-1999
The court was asked ‘whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under art 6(1) of the Convention to fair trial by ‘an independent and impartial tribunal’ within the meaning of that article.’ . .
Cited – Kearney v Her Majesty’s Advocate PC 6-Feb-2006
(High Court of Justiciary Scotland) The Board considered the assessment of the independence of a judge.
Held: Lord Carswell said that independence has a separate significance, apart from ensuring impartiality between the parties to the cause, . .
Cited – Bolkiah and others v The State of Brunei Darussalam and Another (62) PC 8-Nov-2007
(Brunei Darussalam) The Board considered whether the chief Justice of Brunei could be considered to be properly independent.
Held: Lord Bingham rejected the contention for an objective perception of bias as fanciful, saying of the Chief . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 01 January 2022; Ref: scu.549463

Ludi v Switzerland: ECHR 15 Jun 1992

The claimant challenged his conviction of a drug trafficking offence. The evidence against him consisted mainly of a report by an anonymous undercover agent and transcripts of telephone intercepts of calls between the agent and the applicant. Neither the applicant nor his advocates were given the opportunity directly to question the agent. They wished to demonstrate the extent to which the applicant had been induced or entrapped to commit the offence.
Held: The witness could have been called in a way which could have preserved that witnesses’ anonymity, and thus there had been a violation.

[1992] ECHR 50, 12433/86, (1992) 15 EHRR 173
Worldlii, Bailii, Bailii, Bailii
Human Rights
Cited by:
Cited – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 01 January 2022; Ref: scu.165205

Muller v Germany: ECHR 27 Mar 2014

ECHR Article 6-2
Presumption of innocence
Statement in expert report that applicant was guilty of criminal offence of which he had been acquitted: Article 6 – 2 applicable; no violation
Facts – In 1984 the applicant was given a life-sentence for the murder of his wife. In 1999 he was acquitted of a further charge that he had caused bodily harm to a female acquaintance (Ms J) while on prison leave in 1997. After serving 15 years of his life sentence he applied for probationary release, but this was refused by the regional court, which found that he remained dangerous. It reached that conclusion after hearing witness evidence relating to the 1997 incident. In September 2007 a different regional court rejected a further application for probationary release in the absence of any realistic chance that the applicant would not reoffend. In reaching that conclusion it relied on a fresh expert’s opinion that stated that ‘the criminal offence that the applicant had committed to the detriment of Ms J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride’. That decision was upheld on appeal.
Law – Article 6 – 2
(a) Applicability – The applicant had been charged with causing bodily harm to a female acquaintance while on prison leave in January 1997. In February 1999 a district court had acquitted him of that charge on factual grounds without giving any further written reasons. In 2007 the execution of sentence chamber of the regional court and the court of appeal considered that the circumstances of the alleged incident of January 1997 were of relevance to the decision on the applicant’s request for probationary release. There thus existed a sufficient connection between the criminal proceedings terminated by the applicant’s acquittal in 1999 and the proceedings on his request for probationary release to brings the case within the scope of applicability of Article 6 – 2 of the Convention.
Conclusion: admissible (unanimously).
(b) Merits – The Court reiterated that the presumption of innocence would be violated if a statement of a public official concerning a person charged with a criminal offence reflected an opinion that he was guilty unless he had been proved so according to law. However, there was no single approach to ascertaining the circumstances in which that Article would be violated in the context of proceedings following the conclusion of criminal proceedings and much depended on the nature and context of the proceedings in which the impugned decision was adopted. Although the language used by the decision-maker was of critical importance in assessing the compatibility of the decision and its reasons with Article 6 – 2, when regard was had to the nature and context of the particular proceedings, even the use of some unfortunate language may not be decisive.

Turning to the applicant’s case, the Court noted that his complaint directly related only to the decisions given by the regional court and court of appeal in 2007. The decisions given on his earlier requests for probationary release, in particular the regional court’s decision of February 1999, were therefore relevant only in so far as they provided the context for the 2007 decisions.
As regards to the nature and context in which the impugned decision was taken, the regional court had been required to assess whether the applicant’s probationary release would cause a risk to public safety and had therefore had to consider the applicant’s conduct while serving his sentence. It was in that context that it had examined his behaviour following his separation from Ms J. The Court did not consider that the regional court was a priori prevented from taking into account certain facts which had been under the consideration of the criminal court in 1999, particularly as it had been expressly stated in relation to the application for probationary release in 1999 that the qualification of the 1997 incident under criminal law was irrelevant for the prognostic decision that had to be made on the question of probationary release.
With regard to the language that had been used in the 2007 decision to refuse probationary release, although it would have been more prudent for the regional court clearly to distance itself from the expert’s misleading statements as to criminal guilt, it was sufficiently clear from the wording it had used that it was directly quoting from the expert report and that the reference was accepted as a follow-up to the analysis previously given with respect to the issue of probationary release. Neither the regional court nor the court of appeal had stated that the applicant was guilty of a fresh criminal offence. The regional court had expressly stated that it was part of the expert’s task to assess a factual situation from a medical point of view. A close reading of the text excluded an understanding which would touch upon the applicant’s reputation and the way he was perceived by the public.
Accordingly, the decision to refuse the request for probationary release did not demonstrate a lack of respect for the presumption of innocence the applicant enjoyed in respect of the criminal charge of which he had been acquitted.
Conclusion: no violation (five votes to two).

54963/08 – Chamber Judgment, [2014] ECHR 332, 54963/08 – Legal Summary, [2014] ECHR 379
Bailii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 01 January 2022; Ref: scu.523569

Sekanina v Austria: ECHR 25 Aug 1993

The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the relevant Austrian legislation. On the ground that suspicion remained concerning the applicant’s involvement in his wife’s death the Austrian authorities rejected the claim.
Held: The court found a violation of article 6(2): ‘The voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final’ and ‘No authority may treat a person as guilty of a criminal offence unless he has been convicted by the competent court and in the case of an acquittal the authorities may not continue to rely on the charges which have been raised before that court but which have been proved to be unfounded. This rule also applies to courts which have to deal with non-criminal consequences of behaviour which has been subject to criminal proceedings. They must be bound by the criminal court’s finding according to which there is no criminal responsibility for the acts in question although this naturally does not prevent them to establish, eg a civil responsibility arising out of the same facts.’

13126/87, (1993) 17 EHRR 221, [1993] ECHR 37, (1993) 17 EHRR 221
Worldlii, Bailii
European Convention on Human Rights 6(2)
Human Rights
Cited by:
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 – 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. . .
Applied – Rushiti v Austria ECHR 21-Mar-2000
The right of every person under the Convention to be presumed innocent, includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal: ‘In any case, the Court is not convinced by the Government’s . .
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 01 January 2022; Ref: scu.165278

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

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

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

Cited by:
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 – In re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
Cited – Dr D, Regina (on the Application of) v Secretary of State for Health CA 19-Jul-2006
The doctor complained of the use of Alert letters where he was suspected of sexual abuse of patients, but the allegations were unsubstantiated. He complained particularly that he had been acquitted in a criminal court and then also by the . .
Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department Admn 22-Feb-2007
The claimant sought judicial review of a refusal to make an ex gratia payment for his imprisonment whilst successfully resisting extradition proceedings. Terrorist connections had been suggested, but the judge made an explicit finding that at no . .
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 – 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 . .
Cited – Siddall, Regina (on the Application of) v Secretary of State for Justice Admn 16-Mar-2009
The claimant had been imprisoned then released after his conviction for sexual assaults. He appealed against rejection of his claim for compensation. The criterion for compensation was demonstrating that something had ‘gone seriously wrong in the . .
Cited – Oxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice CA 27-Nov-2009
The claimant sought compensation for his imprisonment after the overturning of his conviction, on the basis that evidence had emerged which undermined the conviction.
Held: Such a claim could not succeed where the reason for the non-use of the . .
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 – MacDermott and Another, Re Judicial Review CANI 8-Feb-2010
The applicants had been convicted of murders and had served terms of imprisonment, but had been released when their convictions had been overturned. They now appealed against a refusal of judicial review of a decision not to award them compensation . .
Cited – N, Regina v CACD 20-Feb-2012
The court considered the offence of child trafficking. The defendants had been the victims of such offences and used for managing cannabis production. It was argued that neither defendant should have been prosecuted.
Held: The appeals failed. . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Damages, Criminal Practice, Human Rights

Leading Case

Updated: 01 January 2022; Ref: scu.196438

Hallam, Regina (on The Application of) v Secretary of State for Justice: SC 30 Jan 2019

These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It was argued that the failure to make payment amounted to a denial of the right to the presumption of innocence.
Held: (Lord Reed DPSC and Lord Kerr of Tonaghmore JSC dissenting) Article 6(2) does not apply to section 133 claims for compensation.
The critical distinction between ‘innocence’ as used in article 6(2) and exoneration on the facts might in one sense be said to be a semantic one, but if so the Strasbourg court has emphasised time and again that language (ie semantics) is for it the critical test of breach of article 6(2). In reality it is not a mere semantic distinction but reflects a fundamental principle of the criminal law, namely the strict enhanced standard of proof. It is not possible for the law simultaneously to erect a differential and enhanced standard of proof for criminal prosecutions, and then effectively to apply that standard not just to criminal trials but to other (indeed maybe to all) other adjudications upon the facts which led to the prosecution. Neither the suggested test of ‘link’ nor the suggested test of language will work to determine the scope of article 6(2) in the face of this difficulty.
‘there will be many who are charged with or tried on criminal offences who are truly innocent but are unable to establish their innocence as a positive fact. That undeniable circumstance must form part of the backdrop to the proper approach to the application of article 6(2) of ECHR.’

Lady Hale, President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Lloyd-Jones
[2019] UKSC 2, [2019] WLR(D) 63, [2020] AC 279, [2019] HRLR 5, [2019] 2 WLR 440, 47 BHRC 199, [2019] 2 All ER 841
Bailii, Bailii Summary, WLRD
International Covenant on Civil and Political Rights 1966 14(6), European Convention on Human Rights P7(3), Criminal Justice Act 1988, Human Rights Act 1998
England and Wales
Citing:
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. . .
Appeal from – Hallam and Another, Regina (on The Applications of) v The Secretary of State for Justice CA 11-Apr-2016
The claimants had had their criminal convictions quashed, but had had claims for compensation rejected. They said that section 133(1ZA) of the 1988 Act (as amended) infringed their Human Rights by displacing the presumption of innocence.
Held: . .
See Also – Hallam, R v CACD 17-May-2012
The effect of fresh evidence was to make the conviction unsafe: ‘ . . the fresh evidence has not ‘demolished’ the prosecution case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard . .
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 – Nealon and Another, Regina (on The Application) v The Secretary of State for Justice Admn 8-Jun-2015
Challenges to refusal of compensation for imprisonment after successful appeal against conviction. . .
Cited – Allen v United Kingdom ECHR 12-Jul-2013
The claimant had successfully appealed against her conviction for the manslaughter of her child, after expert evidence had been discredited. She now appealed against the refusal of compensation. She said that despite her acquittal, she had not been . .
Cited – Rex v Barron CCA 26-Mar-1914
To establish a plea of autrefois acquit it must be shewn either that the defendant had been previously acquitted of the same offence, or could have been convicted at the previous trial of the offence with which he is subsequently charged, or that . .
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Cited – Regina v Mullins-Johnson 19-Oct-2007
(Court of Appeal for Ontario) The appellant had been convicted of murder of his 4 year old niece and served 12 years in prison. His conviction was based on expert evidence that the autopsy indicated that the young girl had been sexually abused and . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Ashendon v United Kingdom ECHR 6-May-2008
. .
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 – Lutz v Germany ECHR 25-Aug-1987
Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights . .
Cited – Englert v Germany ECHR 25-Aug-1987
Hudoc Preliminary objection rejected (non-exhaustion); No violation of Art. 6-2 . .
Cited – Nolkenbockhoff v Germany ECHR 25-Aug-1987
Hudoc Preliminary objection rejected (victim); No violation of Art. 6-2 . .
Cited – Sikic v Croatia ECHR 15-Jul-2010
. .
Cited – Sekanina v Austria ECHR 25-Aug-1993
The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the . .
Cited – Moullet v France ECHR 13-Sep-2007
After an acquittal of criminal charges, it may still be legitimate to bring disciplinary proceedings or care proceedings under which a lesser standard of proof may be applied to the question of whether the defendant committed the conduct that had . .
Cited – Rushiti v Austria ECHR 21-Mar-2000
The right of every person under the Convention to be presumed innocent, includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal: ‘In any case, the Court is not convinced by the Government’s . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Ringvold v Norway ECHR 11-Feb-2003
The applicant had been tried for alleged sexual abuse of a minor, G, who in turn claimed civil compensation. He was acquitted and the claim for compensation dismissed. G appealed to the Supreme Court against the failure to award compensation. The . .
Cited – Muller v Germany ECHR 27-Mar-2014
ECHR Article 6-2
Presumption of innocence
Statement in expert report that applicant was guilty of criminal offence of which he had been acquitted: Article 6 – 2 applicable; no violation
Facts – . .
Cited – Orr v Norway ECHR 15-May-2008
The national High Court had dealt with the acquittal of the now complainant and the payment of compensation to the complainant in two clearly distinct parts of its judgment, but in several places highlighted that the standard of proof for civil . .
Cited – Capeau v Belgium ECHR 13-Jan-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-2; Not necessary to examine Art. 14.
The accused had been investigated for suspected arson but discharged by the court on the grounds that . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Reeves v Norway ECHR 8-Jul-2004
The accused had been tried in the criminal courts for arson and the insurers who had paid out after the fire had been joined as civil parties to claim compensation from her. The standard of proof differed between the two decisions required. She was . .
Cited – Bateman and Howse, Regina (on the Application Of) v Secretary of State for the Home Department CA 17-May-1994
The plaintiff had been convicted of several counts of receiving stolen goods and sentenced to six years’ imprisonment. He had appealed to the Court of Appeal on the ground that he had been convicted on the basis of evidence in statement form given . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – Dicle And Sadak v Turkey ECHR 16-Jun-2015
. .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Damages, Criminal Practice, Human Rights

Updated: 01 January 2022; Ref: scu.633292

Rex v Barron: CCA 26 Mar 1914

To establish a plea of autrefois acquit it must be shewn either that the defendant had been previously acquitted of the same offence, or could have been convicted at the previous trial of the offence with which he is subsequently charged, or that the two offences are substantially the same.

[1914] UKLawRpKQB 79, (1914) 2 KB 570
Commonlii
England and Wales
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 01 January 2022; Ref: scu.670805

Serious Organised Crime Agency v Perry and Others: Admn 30 Jul 2009

The respondents sought to have set aside a world wide asset freezing and associated orders obtained by SOCA against them. They said that the Court had no jurisdiction over them, and that the Agency was guilty of wilful non-disclosure. They first respondent had been convicted in Israel of offences of dishonesty.

Foskett J
[2009] EWHC 1960 (Admin), [2010] 1 WLR 910, [2009] ACD 68
Bailii
Proceeds of Crime Act 2002 341(2)
England and Wales
Cited by:
At First instance – 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 . .
See Also – Serious Organised Crime Agency v Perry Admn 28-Jun-2010
The first defendant’s bankers had heard of his conviction for fraud in Israel and had notified his and associated bank accounts to SOCA. He now appealed against ex parte world wide asset freezing (PFO) and disclosure orders (DO) made againt him. The . .
See Also – Serious Organised Crime Agency v Perry and Others CA 29-Jul-2010
The court heard appeals against disclosure orders made under the 2002 Act. The appellants argued that neither the offence, nor the assets nor the appellants themselves were within the jurisdiction. . .
See Also – Perry and Others v Serious Organised Crime Agency CA 18-May-2011
The court was asked ‘Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 31 December 2021; Ref: scu.368626

Billingham, Regina v: CACD 23 Jan 2009

The defendants appealed against their convictions for murder, saying that the judge had misdirected the jury as to the value of previous exculpatory statements. The principal evidence against them were statement from two witnesses, one himself convicted of murder, and each of whom had made inconsistent prior statements exculpatory of the defendants.
Held: The judge’s direction had followed the 2003 Act and the Judicial Studies Board specimen direction for one but not both defendants. However it was clear that the jury had believed the truth of the later statements, and the appeals failed.

Lord Justice Stanley Burnton, Mr Justice Bennett and Judge Stephens, QC
[2009] Crim LR 529, [2009] EWCA Crim 19
Bailii, Times
Criminal Justice Act 2003 119
England and Wales

Criminal Practice

Updated: 31 December 2021; Ref: scu.311772

Regina v K: CACD 2005

The particulars on an indictment should make clear to the defence the case which it must meet.

[2005] 1 Cr App R 408
England and Wales
Cited by:
Cited – GG Plc and Others, Regina v; Regina v Goldshield Group plc and Others HL 12-Mar-2008
The defendants faced charges of conspiracy to fix and maintain the prices of prescription drugs.
Held: An indictment making such allegations must identify and particularise the aggravating acts which took such a conspiracy to the level of a . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 31 December 2021; Ref: scu.317894

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) had no application to section 133.

Hughes LJ
[2008] EWCA Civ 808, [2009] 1 Cr App R 2, [2009] 2 All ER 1, [2008] ACD 85
Bailii
Criminal Justice Act 1988 133, European Convention on Human Rights 6(2)
England and Wales
Citing:
Appeal from – 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. . .

Cited by:
Cited – Siddall, Regina (on the Application of) v Secretary of State for Justice Admn 16-Mar-2009
The claimant had been imprisoned then released after his conviction for sexual assaults. He appealed against rejection of his claim for compensation. The criterion for compensation was demonstrating that something had ‘gone seriously wrong in the . .
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 – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Damages, Criminal Practice, Human Rights

Updated: 31 December 2021; Ref: scu.270836

Gale and Another v Serious Organised Crime Agency: SC 26 Oct 2011

Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had rejected his evidence as unreliable.
Held: The defendant’s appeal failed. The making of an order under the 2002 Act is a civil claim, and article 6(1) applies, but not article 6(2) or (3). The facts of the dismissal of the charges abroad were not sufficiently closely connected with the allegations underlying the application here for the recovery order for the not guilty findings to prevent an order here.
Lord Phillips was inclined to the view that: ‘all that the cases establish is that article 6(2) prohibits a public authority from suggesting that an acquitted defendant should have been convicted on the application of the criminal standard of proof and that to infringe article 6(2) in this way entitles an applicant to compensation for damage to reputation or injury to feelings.’, but noted that: ‘it involves a remarkable extension of a provision that on the face of it is concerned with the fairness of the criminal trial’

Lord Phillips, President, Lord Brown, Lord Mance, Lord Judge, Lord Clarke, Lord Dyson, Lord Reed
[2011] UKSC 49, UKSC 2010/0190, [2011] 1 WLR 2760, [2012] Lloyds Rep FC 1, [2012] 1 Costs LR 21, [2011] WLR (D) 303, [2012] HRLR 5, [2012] 2 All ER 1
Bailii, Bailii Summary, SC Summary, SC, WLRD
Proceeds of Crime Act 2002, Serious Organised Crime and Police Act 2005, European Convention on Human Rights 6(1) 6(2) 6(3)
England and Wales
Citing:
See Also – The Director of the Assets Recovery Agency v Gale and others Admn 16-May-2008
Burden of costs in asset revovery case – third party without capacity. . .
At first instance – Serious Organised Crime Agency v Gale and Others QBD 12-May-2009
Mr Gale had been prosecuted twice in foreign courts on allegations of drug trafficking. Each prosecution had failed. The Agency nevertheless sought an order under the 2002 Act alleging that his property was the fruit of criminal activity.
Appeal from – Gale and Others v Serious Organised Crime Agency CA 7-Jul-2010
The appellants challenged an order made against them under the 2002 Act where Mr Gale had been prosecuted abroad, but not convicted on drug trafficking allegations. The Agency said that no satisfactory explanation had been given of the considerable . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Briggs-Price, Regina v HL 29-Apr-2009
The applicant appealed against a confiscation order made on the basis of evidence obtained for and given in a trial that he had profited from the importation of cannabis. He had not faced trial on an associated charge, but had been convicted of . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Leutscher v The Netherlands ECHR 26-Mar-1996
Lack of jurisdiction (complaint inadmissible); No violation of Art. 6-2 – The Commission distinguished cases in which there has been no acquittal on the merits of the accusation. . .
Cited – Walsh v Assets Recovery Agency CANI 26-Jan-2005
. .
Cited – Sekanina v Austria ECHR 25-Aug-1993
The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the . .
Cited – Rushiti v Austria ECHR 21-Mar-2000
The right of every person under the Convention to be presumed innocent, includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal: ‘In any case, the Court is not convinced by the Government’s . .
Cited – Moullet v France ECHR 13-Sep-2007
After an acquittal of criminal charges, it may still be legitimate to bring disciplinary proceedings or care proceedings under which a lesser standard of proof may be applied to the question of whether the defendant committed the conduct that had . .
Cited – Ringvold v Norway ECHR 11-Feb-2003
The applicant had been tried for alleged sexual abuse of a minor, G, who in turn claimed civil compensation. He was acquitted and the claim for compensation dismissed. G appealed to the Supreme Court against the failure to award compensation. The . .
Cited – HK v Finland ECHR 26-Sep-2006
. .
Cited – Puhk v Estonia ECHR 10-Feb-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 7-1 with regard to first law ; Violation of Art. 7-1 with regard to second law ; Pecuniary damage – claim rejected ; Non-pecuniary damage – . .
Cited – Y v Norway ECHR 11-Feb-2003
The applicant was acquitted by the Norwegian High Court of serious criminal charges, but the same court then went on to make an order for him to pay compensation to the victim’s relatives on the ground that it was clearly probable that he had . .
Cited – Ringvold v Norway ECHR 11-Feb-2003
The applicant had been tried for alleged sexual abuse of a minor, G, who in turn claimed civil compensation. He was acquitted and the claim for compensation dismissed. G appealed to the Supreme Court against the failure to award compensation. The . .
Cited – Geerings v The Netherlands ECHR 1-Mar-2007
Where a defendant is acquitted of offences of which he was charged, it was not legitimate then to infer that he had benefitted from those offences for confiscation proceedings. . .
Cited – Raimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
Cited – Butler v United Kingdom ECHR 27-Jun-2002
A substantial confiscation order was made with respect to money seized from the applicant on the ground that customs officers believed the money was directly or indirectly the proceeds of drugs trafficking and/or was intended for use in drug . .
Cited – Hammern v Norway ECHR 11-Feb-2003
The claimant was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether ‘it is shown to be probable that he did not perform the act that formed the basis for the charge’. . .
Cited – Lundkvist v Sweden ECHR 13-Nov-2003
The applicant was charged with setting his house on fire after a row with his wife. He was acquitted on the grounds that, while there was a strong inferential case against him, it did not establish his guilt beyond reasonable doubt. He then brought . .
Cited – Webb v The United Kingdom ECHR 10-Feb-2004
The Court rejected the applicant’s contention that the proceedings involved a ‘criminal charge’ and resulted in the imposition of a penalty or punishment. The forfeiture was preventative and not a penal sanction. Accordingly it was permissible that, . .
Cited – Geerings v The Netherlands ECHR 1-Mar-2007
Where a defendant is acquitted of offences of which he was charged, it was not legitimate then to infer that he had benefitted from those offences for confiscation proceedings. . .

Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 31 December 2021; Ref: scu.447486

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.
Held: The appeal of Adams was denied, but those of MacDermott and McCartney allowed (by majority). The phrase ‘miscarriage of justice’ admitted of several meanings. The Covenant intended to allow compensation for those who had not committed the offence, but to deny it to those who had in fact committed the crime. Section 133 was not restricted to allow compensation only to those shown to be innocent, but should also (by majority) extend to those in fact innocent but could include a situation where ‘A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.’
Lord Phillips (agreeing with Lady Hale, Lord Kerr and Lord Clarke) held that the phrase ‘new or newly discovered fact’ should be read generously to give effect to Article 14(6) and include facts the significance of which was not appreciated by the defence team at trial.
Lord Hope said: ‘The principle that is applied is that it is not open to the state to undermine the effect of the acquittal. What article 14(6) does not do is forbid comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim of damages, when it is necessary to find out what happened. The system that article 14(6) of the ICCPR provides does not cross the forbidden boundary. The procedure laid down in section 133 provides for a decision to be taken by the executive on the question of entitlement to compensation which is entirely separate from the proceedings in the criminal courts.’
Lady Hale said: ‘I agree that a ‘miscarriage of justice’ in section 133 of the [1988 Act] should be interpreted as proposed . . The phrase is clearly capable of bearing a wider meaning than conclusive proof of innocence. Both the inspiration for section 133, in article 14(6) of the ICCPR . . and the meaning of ‘miscarriage of justice’ in domestic law in 1988 support a wider meaning. The drafters of article 14(6) rejected all attempts to confine it to proof of innocence.’
Lord Judge (dissenting) said: ‘as a matter of construction the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent. In my judgment nothing less will do, and no alternative or half-way house or compromise solution consistent with this clear statutory provision is available.’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke
[2011] UKSC 18, UKSC 2010/0012, 31 BHRC 71, [2012] 1 AC 48, [2011] 3 All ER 261, [2011] NI 42, [2011] 2 WLR 1180
Bailii, Bailii Summary, SC Summary, SC
International Covenant on Civil and Political Rights 1966 14(6), Criminal Justice Act 1988 133, European Convention on Human Rights 6(2)
England and Wales
Citing:
At First Instance – Regina (Adams) v Secretary of State for Justice Admn 2009
. .
Appeal From – Adams, Regina (on The Application of) v Secretary of State for Justice CA 27-Nov-2009
The claimant sought compensation for his imprisonment after the overturning of his conviction, on the basis that evidence had emerged which undermined the conviction.
Held: Such a claim could not succeed where the reason for the non-use of the . .
Appeal from – MacDermott and Another, Re Judicial Review CANI 8-Feb-2010
The applicants had been convicted of murders and had served terms of imprisonment, but had been released when their convictions had been overturned. They now appealed against a refusal of judicial review of a decision not to award them compensation . .
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 – Salomon v Customs and Excise Commissioners CA 1966
Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves . .
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 – Hammern v Norway ECHR 11-Feb-2003
The claimant was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether ‘it is shown to be probable that he did not perform the act that formed the basis for the charge’. . .
Cited – Siddall, Regina (on the Application of) v Secretary of State for Justice Admn 16-Mar-2009
The claimant had been imprisoned then released after his conviction for sexual assaults. He appealed against rejection of his claim for compensation. The criterion for compensation was demonstrating that something had ‘gone seriously wrong in the . .
Cited – Taliadorou And Stylianou v Cyprus ECHR 16-Oct-2008
One of the functions of article 6(2) is to protect an acquitted person’s reputation from statements or acts that follow an acquittal which would seem to undermine it. . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Orr v Norway ECHR 15-May-2008
The national High Court had dealt with the acquittal of the now complainant and the payment of compensation to the complainant in two clearly distinct parts of its judgment, but in several places highlighted that the standard of proof for civil . .
Cited – Regina v Mullins-Johnson 19-Oct-2007
(Court of Appeal for Ontario) The appellant had been convicted of murder of his 4 year old niece and served 12 years in prison. His conviction was based on expert evidence that the autopsy indicated that the young girl had been sexually abused and . .
Cited – Regina v Adams, T CACD 9-Apr-2008
. .
Cited – Sekanina v Austria ECHR 25-Aug-1993
The applicant was detained on remand for about a year on suspicion of murdering his wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defence and pecuniary damage sustained during his detention under the . .
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 . .
Cited – In Re Boyle’s Application for Judicial Review CANI 28-Apr-2006
Appeal from a decision dismissing an application for judicial review of the decision of the Director of Public Prosecutions whereby he refused to provide detailed reasons for his decision not to prosecute two police officers for perjury. . .
Cited – Leutscher v The Netherlands ECHR 26-Mar-1996
Lack of jurisdiction (complaint inadmissible); No violation of Art. 6-2 – The Commission distinguished cases in which there has been no acquittal on the merits of the accusation. . .
Cited – Regina (Murphy) v Secretary of State for the Home Department; Regina (Brannan) v Same Admn 10-Feb-2005
The appellants sought compensation for their imprisonment having been (Mr Brannan’s father) wrongly convicted. They sought to bring in new evidence. The first appellant and the second appellant’s father had been convicted of murder. The second . .
Cited – Rushiti v Austria ECHR 21-Mar-2000
The right of every person under the Convention to be presumed innocent, includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal: ‘In any case, the Court is not convinced by the Government’s . .
Cited – Y v Norway ECHR 11-Feb-2003
The applicant was acquitted by the Norwegian High Court of serious criminal charges, but the same court then went on to make an order for him to pay compensation to the victim’s relatives on the ground that it was clearly probable that he had . .
Cited – Weixelbraun v Austria ECHR 20-Dec-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-2; Costs and expenses partial award – Convention Proceedings . .
Cited – Regina v Hetherington CANI 1975
Lowry LCJ discussed the rule against the admission of evidence obtained under mistreatment and said: ‘It is not for the defence to prove but for the prosecution to disprove beyond reasonable doubt in relation to each accused that he was not subject . .
Cited – McIlkenny v Chief Constable of the West Midlands CA 1980
The appellant had been convicted of an IRA bombing, causing loss of many lives. The appellant and his other co-accused alleged that their confessions had been induced by police violence. The trial judge ruled that their confessions were voluntary . .
Cited – Bateman and Howse, Regina (on the Application Of) v Secretary of State for the Home Department CA 17-May-1994
The plaintiff had been convicted of several counts of receiving stolen goods and sentenced to six years’ imprisonment. He had appealed to the Court of Appeal on the ground that he had been convicted on the basis of evidence in statement form given . .
Cited – Regina v Fergus CACD 29-Jun-1993
A judge should withdraw a case which was based on poor identification evidence, and the prosecution must be sure to disclose all identification evidence. ‘In a case dependent on visual identification, and particularly where that is the only . .
Cited – Regina v Smith; Regina v Taylor; Regina v Nicholson; Regina v Johnson CACD 25-May-1999
Where a court had wrongly rejected a submission of no case to answer, a subsequent admission of guilt by the defendant under cross-examination, was not sufficient to deny an appeal. Such an appeal is judged as at the time the submission is made. The . .
Cited – Bok v The Netherlands ECHR 18-Jan-2011
. .
Cited – Regina v James Hanratty (Deceased) CACD 10-May-2002
Posthumous Appeal – Clear Purpose and Care Needed
An appeal was presented against the conviction for a murder many years earlier. The prosecution sought to introduce DNA evidence to support its case. The appellant party objected.
Held: The purpose of the appeal was to achieve justice, and . .
Cited – Hodgson, Regina v CACD 18-Mar-2009
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 . .

Cited by:
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Criminal Practice, Damages

Updated: 31 December 2021; Ref: scu.439646

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 account within the UK had been disclosed.
Held: The appeals succeeded (Judge and Clarke dissenting). The Act could not have the full extra territorial effect suggested.
Lord Phillips summarised his conclusions: ‘(i) The courts below placed undue weight on the definition of ‘property’ in POCA.
(ii) The appellants have placed undue weight on the presumption that a statute does not have extraterritorial effect.
(iii) States have, by agreement, departed from the customary principles of international law in the case of confiscating the proceeds of crime. Of particular relevance is the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. POCA must be read in the light of that Convention.
(iv) The Convention recognises that the courts of state A may make an order purporting to vest in the authorities of state A property that is situated in state B in circumstances where the property is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A.
(v) The Convention provides that effect should be given to such an order by confiscation proceedings in state B at the request of state A.
(vi) The answer to the issue raised by the PFO appeal depends upon an analysis of both the scheme and the language of POCA considered in the light of the Convention
(vii) Parts 2, 3 and 4 of POCA provide for (a) the imposition in personam of obligations in respect of property worldwide; (b) measures in rem to secure and realise property within the United Kingdom; and (c) requests to be made to other states to take such measures in respect of property within their territories.
(viii) Part 5 of POCA makes provision for in rem proceedings in respect of property within the United Kingdom but not outside it.
(ix) The scheme of POCA, as described above, accords with arrangements made by the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181) (‘the Order’) for giving effect to requests from other states in relation to the confiscation of the proceeds of crime.
(x) The scheme of POCA as described above also accords with the requirements of a coherent international scheme for confiscation of the proceeds of crime and with principles of public international law. The converse is the case if SOCA’s submissions as to the extraterritorial effect of Part 5 are correct.
(xi) Section 286 is an anomalous enigma and cannot justify giving the provisions of POCA that relate to the rest of the United Kingdom a meaning different from that which they would bear in the absence of section 286.
(xii) For all these reasons the PFO appeal should be allowed.’
Sir Anthony Hughes said: ‘What cannot, as it seems to me, be the correct construction is that, as SOCA was obliged to submit, it has jurisdiction to seek a (mandatory) civil recovery order over property in China which is the product of a crime committed in China by an offender who has never left that country.’

Lord Phillips, President, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Sir Anthony Hughes
[2012] UKSC 35, UKSC 2010/0182, [2012] 5 Costs LO 668, [2012] 3 WLR 379, [2012] WLR(D) 238
Bailii, Bailii Summary, SC Summary, SC, WLRD
Proceeds of Crime Act 2002, 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
England and Wales
Citing:
At First instance – Serious Organised Crime Agency v Perry and Others Admn 30-Jul-2009
The respondents sought to have set aside a world wide asset freezing and associated orders obtained by SOCA against them. They said that the Court had no jurisdiction over them, and that the Agency was guilty of wilful non-disclosure. They first . .
Cited – Regina v Cuthbertson HL 1981
With ‘considerable regret’, the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the . .
Cited – Government of the Republic of Spain v National Bank of Scotland SCS 24-Feb-1939
Lord Justice-Clerk Aitchison considered a provision claiming extra territorial effect, and said: ‘such ‘decrees’ of a foreign country as purport to have extra-territorial effect, and to attach property in a subject situated, and at a time when it is . .
Cited – Societe Eram Shipping Company Ltd v Compagnie International De Navigation and Others CA 7-Aug-2001
Judgment creditors obtained a garnishee order nisi, but the bank objected to the order being made absolute. The account was in Hong Kong, where there was a real danger, that the law would not relieve them of their obligation to the account holders . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – Pattni v Ali and Another PC 20-Nov-2006
(Isle of Man (Staff of Government Division)) The Board considered the possibility of extra-territorial jurisdiction over property.
Held: It should generally be expected that an order having the effect of transferring a real right of ownership . .
Appeal from – Perry and Others v Serious Organised Crime Agency CA 18-May-2011
The court was asked ‘Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, . .
Appeal from – Serious Organised Crime Agency v Perry and Others CA 29-Jul-2010
The court heard appeals against disclosure orders made under the 2002 Act. The appellants argued that neither the offence, nor the assets nor the appellants themselves were within the jurisdiction. . .
Cited – King v Director of the Serious Fraud Office HL 18-Mar-2009
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 . .
Appeal From – Serious Organised Crime Agency v Perry Admn 28-Jun-2010
The first defendant’s bankers had heard of his conviction for fraud in Israel and had notified his and associated bank accounts to SOCA. He now appealed against ex parte world wide asset freezing (PFO) and disclosure orders (DO) made againt him. The . .

Cited by:
Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Jurisdiction

Updated: 31 December 2021; Ref: scu.463144

Hallam and Another, Regina (on The Applications of) v The Secretary of State for Justice: CA 11 Apr 2016

The claimants had had their criminal convictions quashed, but had had claims for compensation rejected. They said that section 133(1ZA) of the 1988 Act (as amended) infringed their Human Rights by displacing the presumption of innocence.
Held: The appeals failed. The Supreme Court had decided that the presumption of innocence had been displaced in such decisions, and that decision remained binding on the Court, despite any possibly contradicting decisions in the ECHR.

Lord Dyson MR, Sir Brian Leveson P QBD, Hamblen LJ
[2016] EWCA Civ 355, [2016] WLR(D) 182, [2016] Crim LR 772, [2017] QB 571, [2016] 2 Cr App R 11, [2016] 3 WLR 329, UKSC 2016/0227
Bailii, WLRD, Judiciary, Judiciary, SC, SC Summary, SC Video Summary, 2018 May 08 am Video, SC 2018 08 Maay 2018 pm V, SC 2018 May 09 am Video, SC 2018 May 09 pm Video
Criminal Justice Act 1988 133(1ZA), International Covenant on Civil and Political Rights 1966, European Convention on Human Rights
England and Wales
Cited by:
Appeal from – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 31 December 2021; Ref: scu.562154

Regina v Mullins-Johnson: 19 Oct 2007

(Court of Appeal for Ontario) The appellant had been convicted of murder of his 4 year old niece and served 12 years in prison. His conviction was based on expert evidence that the autopsy indicated that the young girl had been sexually abused and suffocated. Subsequent medical evidence totally discredited the evidence given at the trial, so that it became clear that there was no reliable pathological evidence either of sexual abuse or of homicidal asphyxia of the child. The case was referred to the Court of Appeal on terms that it should treat it as an appeal on fresh evidence. In a passage which merits citation in full, the Court explained why it would not be proper for it in these circumstances to make a declaration that the appellant was in fact innocent: ‘The fresh evidence shows that the appellant’s conviction was the result of a rush to judgment based on flawed scientific opinion. With the entering of an acquittal, the appellant’s legal innocence has been re-established. The fresh evidence is compelling in demonstrating that no crime was committed against Valin Johnson and that the appellant did not commit any crime. For that reason an acquittal is the proper result.
There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken, Annex 3, pp. 342: ‘[A] criminal trial does not address ‘factual innocence’. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law.’
Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under section 696.3(3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing this case ‘as if it were an appeal’. While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellant’s factual innocence.
In addition to the jurisdictional issue, there are important policy reasons for not, in effect, recognizing a third verdict, other than ‘guilty’ or ‘not guilty’, of ‘factually innocent’. The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, ‘there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict’ (p 39). To recognize a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt.’

O’Connor, Rosenberg, Sharpe JJS
2007 ONCA 720, 87 OR (3d) 425, 231 OAC 64, 50 CR (6th) 265, 228 CCC (3d) 505, 76 WCB (2d) 637, [2007] OJ No 3978 (QL)
Canlii
Canada
Cited by:
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 31 December 2021; Ref: scu.439723

Nealon and Another, Regina (on The Application) v The Secretary of State for Justice: Admn 8 Jun 2015

Challenges to refusal of compensation for imprisonment after successful appeal against conviction.

[2015] EWHC 1565 (Admin), [2015] CN 934
Bailii
England and Wales
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 31 December 2021; Ref: scu.547599

Holme v Liverpool City Justices and Another: Admn 6 Dec 2004

The defendant had been convicted of dangerous driving. The victim’s mother complained of the leniency of the sentence, and the magistrates purported to re-open the sentencing under section 142, saying they had been unaware of the very serious nature of the injuries caused.
Held: The extent to which a victim’s views could be allowed for in sentencing remains unclear. The magistrates had the means available of obtaining such evidence as they wished of the injuries, and there was no error to allow a re-opening the sentence under the section. If the power was to be exercised, it was necessary that it be done expeditiously. The principle of finality in sentencing should also operate. The order setting aside the decision was quashed.

Collins J, Newman J
[2004] EWHC 3131 (Admin)
Bailii
Magistrates’ Courts Act 1980 14
England and Wales
Citing:
Cited – Regina v Croydon Youth Court ex parte Director of Public Prosecutions Admn 8-May-1997
The defendant, a 12 year old boy , had been charged, with others, with offences of violence. He denied the charges. He objected to his interview with admissions being used. On being admitted he then pleaded guilty. Later cases against co-defendants . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Stokes 1998
The consequences of bad driving are to be taken into account when sentencing for the driving. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 31 December 2021; Ref: scu.226926

Thames Water Utilities Ltd, Regina v: CACD 3 Jun 2015

The company appealed against the sentence imposed on a finding that it was in breach of the 2010 Regulations. It sought to bring new evidence.
Held: In sentencing appeals the court will scrutinise intensely any application to give a factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing.

Mitting J
[2015] EWCA Crim 960, [2015] 2 Cr App R (S) 63, [2015] WLR(D) 244, [2015] Crim LR 739, [2015] 1 WLR 4411, [2015] EWCA Crim 960, [2015] Env LR 36
Bailii
Environmental Permitting (England and Wales) Regulations 2010 38(1)(a) 39(1)
England and Wales
Cited by:
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.

Criminal Sentencing, Criminal Practice

Updated: 30 December 2021; Ref: scu.547541

CW and MM, Regina v: CACD 22 May 2015

Proceedings had commenced for conspiracy to supply class A Drugs to a person abroad. Prior consent was required of the Attorney-General, but was only obtained after the event. The prosecutor now appealed against a ruling that the proceedings were null and void.
Held: The appeal failed: ‘ The Judge was astute to the problems the Crown had created for itself and unmoved by a last-ditch attempt to bend the language of S25 to accommodate that failure.’ and
‘We do not see any inconsistency between section 4 of the 1977 Act and section 25 of the 1985 Act. Section 4 is the primary provision. As Lambert makes clear, consent must be obtained before proceedings are instituted and, if it is not, the proceedings are null and void. Section 25 cannot override section 4, and ‘save’ proceedings. It simply enables the lawful arrest, charging and remand in custody or on bail of a person in circumstances in which the relevant consent has not been obtained.
The question for this court is thus extremely simply expressed. Are the steps taken at the hearings before consent is given protected by S25?’

Rafferty LJ, Sweeney, Hickibottom JJ
[2015] EWCA Crim 906
Bailii
Criminal Law Act 1977 4, Prosecution of Offences Act 1985 25
England and Wales
Citing:
Cited – Lambert, Regina v CACD 3-Apr-2009
The court considered the test for whether the requirement for the Attorney General’s consent to a prosecution had been obtained, and said: ‘The analysis of the statutory language: . .
there are two questions.
i) When were the proceedings . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 December 2021; Ref: scu.547075

Kelly v Regina: CACD 15 May 2015

Appeal against a conviction for murder brought upon one issue, namely whether a failure by the prosecution to make proper disclosure under the Criminal Procedure and Investigations Act 1996 rendered the trial of the appellant unfair and the verdict unsafe.
Held: The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.

[2015] EWCA Crim 817
Bailii
Criminal Procedure and Investigations Act 1996
England and Wales
Citing:
Cited – McGreevy v Director of Public Prosecutions HL 1973
No Need for Direction on Circumstantial Evidence
M was charged with murdering Margaret Magee in her house. no one claimed to have seen the murder and the evidence was entirely circumstantial. When he was first tried, the jury failed to reach a verdict, but at a subsequent trial he was found guilty . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 December 2021; Ref: scu.546831

Regina v Thompson: CACD 1976

A witness’s refusal to answer questions may be sufficient to demonstrate hostility and to trigger the right to cross-examine, including upon previous statements made by the witness.

[1976] 64 Cr App R 96
England and Wales
Cited by:
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 December 2021; Ref: scu.470824

Minelli v Switzerland: ECHR 25 Mar 1983

It was capable of being an infringement of a defendant’s right to a fair trial, to refuse to order payment of his costs after an acquittal in such a manner as to cast doubt on his innocence. ‘In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.’

8660/79, (1983) 5 EHRR 554, [1983] ECHR 4
Worldlii, Bailii
European Convention on Human Rights 6
Human Rights
Cited by:
Cited – Regina v Moore CACD 12-May-2003
The applicant had been convicted of contempt of court, but succeeded on appeal. Costs had been ordered in his favour, but the matter had been referred back to the court to consider the extent of its powers on such an occasion.
Held: The making . .
Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Criminal Practice

Updated: 30 December 2021; Ref: scu.164916

O’Donnell v The United Kingdom: ECHR 7 Apr 2015

ECHR The applicant alleged that the trial judge allowed the jury to draw an adverse inference from his failure to testify and that the judge failed to direct the jury to consider whether there was a case to answer, both of which violated his Article 6 – 1 rights.

16667/10 – Chamber Judgment, [2015] ECHR 357
Bailii
European Convention on Human Rights, Criminal Evidence (Northern Ireland) Order 1988

Human Rights, Criminal Practice, Northern Ireland

Updated: 29 December 2021; Ref: scu.545408

Constancia v The Netherlands (Dec) Summary: ECHR 3 Mar 2015

ECHR Article 5-1-e
Persons of unsound mind
Detention as a person of ‘unsound mind’ in the absence of a precise diagnosis of mental state: inadmissible
Article 5-1
Lawful arrest or detention
Detention and preventive measures in the absence of reasonable suspicion of an offence: violation
Facts – The applicant was prosecuted for manslaughter following the death of a pupil in a primary school in 2006. In the ensuing criminal proceedings he refused to cooperate in any examination of his mental state, so that no diagnosis of his mental condition was possible. The domestic courts nonetheless found him to be severely disturbed and imposed a 12-year prison sentence followed by detention as a person of ‘unsound mind’ (‘TBS order’). The sentence was ultimately upheld by the Supreme Court in 2012.
Law – Article 5 – 1 (e): When considering the applicant as a person of ‘unsound mind’, the domestic courts relied on a number of reports prepared by psychiatrists and psychologists as well as a report based on the criminal file and the audio and audio-visual recordings of interrogations. Although the doctors had been unable to establish a precise diagnosis, they had nevertheless considered that the applicant was severely disturbed, which view the court of appeal found reinforced by its own investigation of the case file. The Court accepted that, faced as they had been with the applicant’s complete refusal to cooperate in any examination of his mental state at any relevant time, the domestic courts had been entitled to conclude from the information thus obtained that the applicant was suffering from a genuine mental disorder which, whatever its precise nature, was of a kind or degree that warranted compulsory confinement.
The link between the original conviction and the measure involving the applicant’s confinement in a custodial clinic, required for Article 5 – 1 (a) to continue to apply, could eventually be broken if future decisions in this respect did not rely on grounds that were consistent with the objectives of the sentencing court. In those circumstances, a detention that was lawful at the outset would be transformed into an arbitrary deprivation of liberty incompatible with Article 5.
Conclusion: inadmissible (manifestly ill-founded).

73560/12 – Legal Summary, [2015] ECHR 396
Bailii
European Convention on Human Rights
Citing:
See Also – Constancia v The Netherlands (Dec) ECHR 3-Mar-2015
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 29 December 2021; Ref: scu.545377

Sanader v Croatia: ECHR 12 Feb 2015

ECHR Criminal proceedings
Article 6-1
Fair hearing
violation
Facts – In 1992, while the applicant was living in the then occupied parts of Croatia, he was charged by the Croatian prosecuting authorities with war crimes against prisoners of war. He was tried in absentia, convicted as charged and sentenced to 20 years’ imprisonment. The judgment was upheld by the Supreme Court in 2000 and an arrest warrant was issued. In 2009, after the applicant had learned of his conviction, he requested the Croatian courts to reopen the proceedings, but his request was dismissed since he now lived in Serbia and was not available to the Croatian authorities.
Law – Article 6 – 1: At the time the first detention order against the applicant was issued and his trial in absentia allowed, the applicant could not be traced. Due to the escalating war in the country and the fact that he was living in the then occupied territory of Croatia, which was not under the control of the domestic authorities, it was impossible to notify him of the criminal proceedings or to secure his presence. In these circumstances it was unlikely that the applicant could have gained any knowledge of the proceedings or that the reason for his absence at the time was to escape trial. The trial in absentia was held in the public-interest to secure the effective prosecution of war crimes which, under the Court’s case-law, was not in itself incompatible with Article 6 provided the person concerned had the possibility, once he became aware of the proceedings, of being granted a retrial. The Government suggested two remedies the applicant had at his disposal which would have allowed him to obtain a fresh determination of the charges against him by a court in full respect of his defence rights.
The first remedy consisted of a measure allowing for the automatic reopening of proceedings conducted in absentia based on a request by the convicted person and depended on ‘the possibility of a re-trial in [the convicted person’s] presence’. According to the domestic interpretation of this remedy, in order to be able to request a retrial, the person concerned had to appear before the domestic authorities and provide an address in Croatia where he or she would reside pending the criminal proceedings. Conversely, a request for a retrial by a convicted person who lived outside Croatia and was thus not under the jurisdiction of the Croatian authorities could not lead to the reopening of the proceedings and the domestic courts were not inclined to accept any promises or guarantees as to attendance at court hearings provided by persons residing outside Croatia. The remedy relied on thus appeared disproportionate as, firstly, it would normally lead to the applicant’s custody based on his conviction in absentia, which ran contrary to the principle that there could be no question of an accused being obliged to surrender to custody in order to secure the right to be retried in conditions that complied with Article 6 and, secondly, it was unreasonable from a procedural point of view in that the applicant’s conviction as such would not have been affected by the domestic courts’ order for a retrial.
The second remedy suggested by the Government related to the general legal avenue for seeking a retrial after a judgment had become final and enforceable. However, this remedy was of a secondary and subsidiary nature and applicable only to a restricted category of cases tried in absentia, namely when the convicted person was able to submit new evidence or facts capable of leading to acquittal or resentencing under a more lenient provision. The applicant was unable to use this remedy as he had been tried in his absence without the opportunity of challenging the factual findings of the judgment resulting in his conviction. Such a demand appeared disproportionate against the essential requirement of Article 6 that a defendant should be given an opportunity to appear at trial and have a hearing where he could challenge the evidence against him.
In sum, the applicant had not been provided with sufficient certainty with the opportunity of obtaining a fresh determination of the charges against him by a court in full respect of his defence rights.
Conclusion: violation (unanimously).
Article 41: EUR 4,000 in respect of non-pecuniary damage.

66408/12 – Legal Summary, [2015] ECHR 302
Bailii
European Convention on Human Rights 6

Human Rights, Criminal Practice

Updated: 29 December 2021; Ref: scu.545030

Corbet And Others v France: ECHR 19 Mar 2015

Relying on Article 6-1 and 6-2 of the Convention, the applicants complained of a violation of their right to remain silent and not to contribute to their own incrimination, the right to presumption of innocence and the rights of the defense, resulting from the fact that a report of a parliamentary commission of inquiry was sent to the Public Ministry and served as the basis for criminal prosecutions conducted against them. In addition, relying on Article 5 – 3 of the Convention in the context of his detention in custody in July 2003, the applicant Corbet (application no 7494/11 ) complained of a violation of the right of any person arrested or detained application of Article 5 – 1(c) to be ‘promptly’ before a judge.

Mark Villiger, P
7494/11 – Chamber Judgment, [2015] ECHR 321
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice, Police

Updated: 29 December 2021; Ref: scu.545039

Rea (Winston Churchill), Re Judicial Review: QBNI 9 Feb 2015

The applicant sought, inter alia, an order quashing the decision of the Director of Public Prosecutions under section 7(5) of the 2003 Act requesting mutual legal assistance from the United States Central Authority in respect of material held by Boston College, Massachusetts and pertaining to the applicant.

Treacy J
[2015] NIQB 7
Bailii
Crime (International Co-operation) Act 2003 795)
Northern Ireland

Criminal Practice

Updated: 29 December 2021; Ref: scu.544871

Regina v Jones (Anthony William): HL 20 Feb 2002

The defendant absconded, and did not appear for his trial despite several listings. The trial proceeded in his absence entirely. After arrest, he appealed, saying that he had not had a fair trial.
Held: It was not suggested that he did not know of the need to appear at court, nor that the trial might proceed in his absence. There was no general difference in principle between continuing a trial in the absence of an absconded defendant, and commencing one. The discretion to commence a trial in his absence should, however, be exercised with the utmost care and caution. The Court of Appeal’s checklist was approved save that the seriousness of the offence should not be considered. The over-riding concern was fairness. Counsel should be encouraged to do what they could to represent an absent defendant.
Lord Bingham of Cornhill said that: ‘the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution.’ and ‘it is generally desirable that a defendant be represented even if he has voluntarily absconded.’

Lord Bingham of Cornhill, Lord Nolan, < Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry
Times 21-Feb-2002, Gazette 28-Mar-2002, [2002] 2 All ER 113, [2002] UKHL 5, [2003] 1 AC 1, [2002] 2 WLR 524, [2002] HRLR 23, [2002] 2 Cr App R 9, (2002) 166 JPN 431, (2002) 166 JP 333
House of Lords, Bailii
European Convention on Human Rights
England and Wales
Citing:
Confirmed – Regina v Jones, Planter and Pengelly 1991
. .

Cited by:
Cited – Practice Direction (Bail: Failure to surrender and trials in absence) CACD 22-Jan-2004
The court, amending the earlier direction, gave detailed guidance on how prosecutors and courts should deal with trials where defendants had failed to surrender to bail. Defendants must be made aware of the damage caused by failures to surrender. . .
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 . .
Cited – Mariotti v Government of Italy and others Admn 2-Dec-2005
The extraditee had been convicted in his absence in Italy having fled to avoid the trial. He complained that the trial process had been unfair and the evidence against him weak.
Held: The court’s duty was not to investigate the evidential . .
Cited – Johnson, Regina (on the Application of) v Director of Public Prosecutions Admn 8-Dec-2005
The defendant sought judicial review of a decision by the magistrates to proceed with criminal charges against him in his absence. He suffered confirmed depression. There were several adjournments.
Held: ‘despite the unsatisfactory and indeed . .
Cited – Campbell v The Queen PC 30-Nov-2006
(The Bahamas) The Attorney General had appealed the sentence on the defendant for unlawful sexual intercourse with a girl under 14 as unduly lenient. His appeal was heard without the defendant’s presence, which was now said to have made the appeal . .
Cited – Morsby v Tower Bridge Magistrates’ Court Admn 31-Oct-2007
The claimant sought judicial review of the magistrates refusal to set aside a conviction entered in his absence. He had been in custody and not produced for the hearing.
Held: The review was granted. The judge had not established that the . .
Cited – James v Tower Bridge Magistrates’ Court Admn 9-Jun-2009
The claimant challenged the decisions of the magistrates first to convict him under the 1992 Act in his absence, and then to refuse to re-open the case. He had attended late on the trial date, after attending hospital overnight with his young . .
Cited – Norton v Bar Standards Board Admn 31-Jul-2014
The applicant had been called to the bar. He had represented that he had no criminal convictions and had three degrees . It was later suggested that neither representation was true. After failing to respond to enquiries, he was notified that a . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Cited – Khan, Regina v CACD 21-Oct-2021
The applicant having been discharged of offences under the 1988 Act, the Court nevertheless imposed an order on him in his absence under the 1997 Act prohibiting him from contacting the complainant for a period of 10 years. He sought to appeal from . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 29 December 2021; Ref: scu.167641

FB v Procurator Fiscal, Aberdeen: HCJ 20 Feb 2015

This application raises a sharp point about the function of a sifting judge in summary criminal appeals. This Opinion is designed to emphasise that the sifting decision must relate to the stated case, notably the questions posed in it, and not to the content of any earlier, and essentially superseded, application for a stated case. The latter ought not to form any material part of the judge’s sift decision.

2015 SCL 375, [2015] ScotHC HCJAC – 14, 2015 GWD 8-150, 2015 SLT 214, 2015 SCCR 175
Bailii
Scotland

Criminal Practice

Updated: 28 December 2021; Ref: scu.544185

CA (A Minor) v Public Prosecution Service: QBNI 9 Sep 2013

The applicant was aged 17 and is the subject of an allegation of having inflicted grievous bodily harm contrary to Section 20 of the Offences against the Person Act 1861. She now challenged the Public Prosecution Service conclusion that the allegation is not suitable for diversionary disposal as an alternative to prosecution as provided for by the Criminal Justice Children (Northern Ireland) Order 1998.

[2013] NIQB 139
Bailii
Criminal Justice Children (Northern Ireland) Order 1998

Northern Ireland, Criminal Practice

Updated: 28 December 2021; Ref: scu.544013

Regina v Sang: HL 25 Jul 1979

The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence which is relevant is prima facie admissible in a criminal trial, although the trial judge has a discretion to exclude evidence which, though admissible, has been obtained by unfair means from the accused after commission of the offence. The rule allowing the exclusion of evidence was described by Lord Diplock as ‘a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.
A court is concerned only with ‘the conduct of the trial’ and neither ‘initiates nor stifles a prosecution’ but ‘the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.”
Lord Diplock said that the rule against accepting evidence obtained under duress originated in the principle expressed as ‘nemo debet prodere se ipsum’, ‘nemo tenetur se ipsum accusare’ or ‘nemo tenetur prodere seipsum’- the right against self incrimination.
Lord Scarman, referred to the earlier speech of Lord Reid in Myers v Director of Public Prosecutions, and stated that it was now the law that ‘a judge has a discretion to exclude legally admissible evidence if justice so requires’.

Lord Scarman, Lord Diplock, Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton
[1980] AC 402, [1979] UKHL 3, [1979] 3 WLR 263, [1979] 2 All ER 1222, (1979) 69 Cr App R 282
Bailii
England and Wales
Citing:
Cited – Regina v Payne CCA 1963
The defendant’s conviction was quashed upon the ground that the judge ought to have exercised his discretion to exclude admissible evidence which had been obtained unfairly. . .
Cited – Regina v Mealey and Sheridan CACD 1974
A claim of entrapment into an offence is not a defence in Engish law. The court adopted a definition contained in the report of the Royal Commission on Police Powers in 1928 in which an ‘agent provocateur’ was taken to mean ‘a person who entices . .
Cited – Regina v Ameer and Lucas CCC 1977
The court exercised its discretion to refuse to allow the prosecution to call any evidence to prove the commission of the offence by the accused where it had been shown that there had been an agent provocateur. . .
Cited – Regina v McEvilly and Lee CACD 1973
Entrapment is not a defence to a criminal charge. . .
Cited – Brannan v Peek 1948
. .
Cited – Browning v Watson 1953
. .
Cited – Kuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .
Cited – Callis v Gunn CCA 1964
Evidence obtained by false representations, threats and bribes by the police may be excluded at the discretion of the judge. For voluntariness to be satisfactorily proved, proof must be provided to the standard of beyond reasonable doubt.
Lord . .
Cited – Regina v Murphy CMAC 1965
(Courts-Martial Appeal Court of Northern Ireland) The court has a discretion to exclude the evidence of an agent provocateur. . .
Cited – Regina v Sneddon 1967
. .
Cited – Jeffrey v Black QBD 1977
The prosecutor appealed by way of case stated from magistrates who had exercised their discretion to exclude evidence of possession of drugs that had been obtained by an illegal search of the accused’s room by the police.
Held: The magistrates . .

Cited by:
Modified – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Cited – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Derby Crown Court, ex parte Brooks QBD 1985
The court set out the characteristics of abuse of process in criminal matters. It may be an abuse of process if: ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law . .
Cited – 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 . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Fox v Chief Constable of Gwent HL 1986
The driver left an accident. The police entered his home unlawfully, and on his refusal to supply a breath test, he was arrested and charged with faiing to supply.
Held: A lawful arrest is not an essential requirement before a breath test, and . .
Cited – Regina v Sargent HL 25-Oct-2001
When a telephone engineer used his position to make unauthorised telephone intercepts, and produced apparent evidence of criminal activity, he was, under the Act, a person engaged in providing a public communications system, and the recordings were . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Cited – Cummins, Regina (on The Application of) v Manchester Crown Court Admn 27-Jul-2010
The claimant sought a declaration that search warrants on his premises issued under money laundering suspicions were unlawful. The warrants did not comply with the 1984 Act, having failed satisfactorily to specify their purpose. Limited offers had . .
Cited – Cook and Another v Serious Organised Crime Agency Admn 27-Jul-2010
The claimants sought review of a decision of the Serious Organised Crime Agency to seize documents which have been the subject of the unlawful execution of a search warrant, purporting to act for this record seizure under section 19 of the Police . .
Cited – Kohler v Director of Public Prosecutions Admn 9-Jul-2010
The driver appealed against her conviction for driving with excess alcohol. She said that she had not been given the protection provided under section 9 against being required to provide a specimen whilst under the care of a doctor at hospital.
Cited – Public Prosecution Service v McKee SC 22-May-2013
Non-approval didn’t devalue fingerprints
The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, . .
Explained – Morris v Beardmore HL 1981
Parliament does not intend to authorise tortious conduct except by express provision. It is not for the courts to alter the balance between individual rights and the powers of public officials. The right of privacy is fundamental.
Lord Scarman . .

Lists of cited by and citing cases may be incomplete.

Crime, Criminal Practice

Leading Case

Updated: 28 December 2021; Ref: scu.179807

Mcclenaghan, Regina v: CCNI 18 Nov 2014

Treacy J
[2014] NICC 20
Bailii
Northern Ireland
Citing:
Cited – Regina v Prime CACD 1973
Widgery LCJ said: ‘It is important in all criminal cases that the judge should on the first occasion when the jury separate warn them not to talk about the case to anybody who is not one of their number.’ . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 27 December 2021; Ref: scu.542761

Colac v Romania: ECHR 10 Feb 2015

The applicant alleged, in particular, that his right to a fair trial guaranteed by Article 6 of the Convection had been breached because he had been unable to examine all the witnesses whose statements had served as the main basis for his conviction

Josep Casadevall, P
26504/06 – Chamber Judgment, [2015] ECHR 153
Bailii
European Convention on Human Rights 6

Human Rights, Criminal Practice

Updated: 27 December 2021; Ref: scu.542453

Rex v Marsham ex parte Pethick Lawrence: 1912

The magistrate had failed to swear a witness and purported to convict the applicant in that case. The case was reheard on sworn evidence.
Held: The court refused to quash the conviction. The magistrate correctly treated the first hearing as ‘a nullity’ because ‘it proceeded on evidence which must have compelled this court to quash the conviction had an application for that purpose been made.’

Lord Alverstone CJ
[1912] KB 362
England and Wales
Cited by:
Followed – Bannister v Clarke 1920
The act of the justices in purporting to commit the appellant for trial on five informations was a nullity and thus did not deprive the justices of jurisdiction to hear those informations summarily at a subsequent date. . .
Applied – Regina v West 1964
The justices had purported to hear and determine an information of accessory after the fact of a larceny.
Held: The action was a nullity; and thus the defendant’s acquittal was also a nullity. The justices had therefore not exhausted their . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Criminal Practice

Updated: 27 December 2021; Ref: scu.220277

Regina v Gill: CACD 2004

Police officers had continued the interview of a suspect despite it becoming clear that he suffered mental incapacity. The trial judge having heard an application to have the interview excluded at an early point and only gave his reasons much later, after all the evidence was heard, and he sought to justify his decision upon the basis of evidence arising in the trial which could not have influenced the decision he had taken earlier.
Held: The judgment was criticised. The absence of culpability on the part of the police is not determinative since a confession may prove to be unreliable notwithstanding. Evidence as to unreliability might emerge later (for instance subsequent medical evidence as to incapacity) but it will be relevant evidence because it pertains to the circumstances prevailing at the time of the confession.

[2004] EWCA Crim 3245
Police and Criminal Evidence Act 1984 74
England and Wales
Cited by:
Cited – Beeres v Crown Prosecution Service (West Midlands) Admn 13-Feb-2014
The defendant said that his confession should not have been admitted in evidence it having been given when he had not been advised of his rights whilst at the police station because of his inebriation.
Held: The appeal failed. A confession is, . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 27 December 2021; Ref: scu.567513

Aras (No2) v Turkey: ECHR 18 Nov 2014

ECHR Article 6-3-c
Defence through legal assistance
Lack of effective legal assistance during questioning: violation
Article 6-1
Fair hearing
Lack of effective legal assistance during questioning: violation
Facts – The applicant was arrested on suspicion of qualified fraud. While he was being questioned by the investigating judge, his lawyer was allowed to enter the hearing room but not to take the floor or advise his client. The applicant was then placed in detention and eventually convicted of involvement in offshore banking activities.
Law – Article 6 – 3 (c) in conjunction with Article 6 – 1: The applicant’s access to a lawyer had been restricted pursuant to the relevant law in force at that time. The presence of the applicant’s lawyer in the hearing room during the questioning had been merely passive as he had not had any possibility to intervene in order to ensure respect for his client’s rights. In fact, the applicant had not been given an opportunity to consult his lawyer, who in turn had not been allowed to take the floor and defend him. Furthermore, the restriction imposed on his access to a lawyer had been systematic and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. The Court recalled the importance of the investigation stage for the preparation of criminal proceedings and stressed that Article 6 – 1 required access to a lawyer from the start of questioning of a suspect by the police, unless it was demonstrated in the particular circumstances of the case that there were compelling reasons to restrict that right. Accordingly, the mere presence of the applicant’s lawyer in the hearing room could not be considered to have been sufficient by Convention standards.
Conclusion: violation (five votes to two).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

15065/07 – Legal Summary, [2014] ECHR 1414
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice, Legal Professions

Updated: 25 December 2021; Ref: scu.541471

McDonald v Her Majesty’s Advocate: PC 16 Oct 2008

(The High Court of Justiciary Scotland) The defendant sought to appeal against his convictions for murder and and assault. The HCJ in Scotland had refused to receive a devolution minute.
Held: The refusal was itself sufficient to give the Board of the Council jurisdiction to hear the appeal. That decision was one for the Board. On the merits the appeal was dismissed. The Judicial Committee accepted that if there had been a failure of disclosure at trial, the duty on appeal was to make available what should have been provided at trial as well as material relevant to existing grounds of appeal. However, it roundly rejected the contention that at the appellate stage there arose a duty on the prosecution to re-perform the entire disclosure exercise, so that the appellant could see whether anything might emerge which could be used to devise some additional ground of appeal.
Lord Rodger said: ‘Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage. By then, the real issues in contention between the parties will have been focused at the trial. In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence).’

Lord Hope of Craighead, Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury
[2008] UKPC 46, 2008 SCCR 954, 2008 GWD 35-527, 2008 SCL 1378, [2009] HRLR 3
Bailii, Times
Scotland Act 1998
Scotland
Cited by:
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Allison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
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.

Scotland, Criminal Practice, Constitutional

Updated: 25 December 2021; Ref: scu.277529

Panesar and Others v HM Revenue and Customs: CA 15 Dec 2014

HMRC had seized material in e course of executing a search warrant. The warrant was later removed, but the Crown Court authorised the continued retention of the materials, The question now was whether the material had been seized in the course a criminal cause or matter so as to govern the mode of appeal.
Held: The Court of Appeal did not have jurisdiction to hear the appeals. These were criminal matters.

[2014] EWCA Civ 1613, [2015] 1 Cr App R 17, [2015] Lloyd’s Rep FC 81, [2015] CP Rep 16, [2014] WLR(D) 548, [2015] BVC 1, [2015] 1 WLR 2577
Bailii, WLRD
Senior Courts Act 1981 18(1)(a), Police and Criminal Evidence Act 1984 8(1) 9, Criminal Justice and Police Act 2001 59
England and Wales

Criminal Practice

Updated: 24 December 2021; Ref: scu.539987

Armstrong v The United Kingdom: ECHR 9 Dec 2014

ECHR Criminal proceedings
Article 6-1
Impartial tribunal
Police officers’ participation on jury in case where police evidence was undisputed: no violation
Facts – The applicant was convicted of murder by a jury which contained one retired police officer and one serving police officer. Both officers had informed the court of their status. The retired officer explained that he had been retired for many years and did not recognise the names of any of the police officers in the case. The serving officer mentioned that he recognised a man sitting at the back of the court as a police officer, but prosecuting counsel explained that the man would not be called as a witness. After being given an opportunity to make inquiries, defence counsel did not object to the participation of either officer on the jury.
Law – Article 6 – 1: The personal impartiality of a jury member is presumed until there is proof to the contrary. There being no evidence of actual partiality, the Court went on to examine whether there were sufficient guarantees to exclude any objectively justified doubts as to the police officers’ impartiality.
Both jurors had drawn the trial judge’s attention at an early stage of the trial to the fact that they were, or had been, police officers. The serving officer had also indicated that he recognised a police officer sitting in the courtroom. The trial judge had promptly invited submissions from counsel and appropriate investigations were made. A list of questions was put to the serving officer in order to identify the nature and extent of his knowledge of the officer in the courtroom and the police officer witnesses in the case. The applicant was fully involved in these proceedings and was informed of the proposed questions before they were put. Defence counsel had been given the opportunity to investigate and clarify the police officers’ connections with the case and had not challenged the continued presence of the juror throughout the proceedings. It was clear from the transparent inquiries into the two officers that the defence had every opportunity to object to their continued presence on the jury but chose not to do so.
As to the nature of the connection between the jurors and other participants at the trial, unlike Hanif and Khan v. the United Kingdom, this was not a case where a police officer who was personally acquainted with a police officer witness giving relevant evidence was a member of the jury. Nor did the applicant’s defence depend to any significant extent – if at all – upon a challenge to the evidence of the police officer witnesses in his case. He admitted killing the victim and the only question for the jury was whether he had acted in self-defence. In these circumstances, and again in contrast to the position in Hanif and Khan, it could not be said that there was an important conflict or a clear dispute regarding police evidence in the case.
Accordingly, the safeguards present at the applicant’s trial were sufficient to ensure the impartiality of the jury which tried the applicant’s case.
Conclusion: no violation (unanimously).

Ineta Ziemele, P
65282/09 – Chamber Judgment, [2014] ECHR 1368, 65282/09 – Legal Summary, [2014] ECHR 140
Bailii, Bailii
European Convention on Human Rights 6-1
Human Rights

Human Rights, Criminal Practice

Updated: 24 December 2021; Ref: scu.539815

Regina v Khan: CACD 27 Jul 2009

On his trial for murder the defendant produced unchallenged expert evidence that at the time of the offence, his mental responsibility for the killing was substantially impaired by his mental illness. He said that in these circumstances the charge of murder should have been withdrawing leaving only manslaughter available to the jury.
Held: The medical evidence was not the sole determinant. There was other evidence that the defendant had acted intentionally, and the jury was correctly allowed to consider it. The appeal failed.

Aikens LJ, Holman, Bevan JJ
[2009] EWCA Crim 1569, [2010] 1 Cr App R 4
Bailii
Homicide Act 1957 2(1)
England and Wales
Citing:
Cited – Regina v Matheson CCA 1958
The defendant raised a defence of dimished responsibility under the 1957 Act to a charge of murder. Three doctors called for the defence at the trial had stated that the defendant was suffering from an abnormality of mind due to arrested or retarded . .
Cited – Regina v Byrne CCA 1960
The defendant was a sexual psychopath who had strangled and mutilated a young woman resident of the YWCA. The case on his behalf was that he was unable to resist his impulse to gross and sadistic sexual violence. The judge’s directions had amounted . .
Cited – Regina v Lloyd CCA 1967
The defendant had killed his wife. There was evidence that from time to time he had suffered recurrent episodes of reactive depression. Two psychiatrists gave evidence that this was a mental abnormality which to some extent impaired his mental . .
Cited – Regina v Bailey CCA 1-Oct-1961
. .
Cited – Walton v The Queen PC 1978
The defendant shot someone in a car. His defence was diminished responsibility, but the jury found him guilty of murder. He was sentenced to death. The Barbadian statute used precisely the same wording as the English Act of 1957. There had been . .
Cited – Regina v Eifinger CACD 2001
The defendant had killed a publican, for whom he had worked and who was a friend. The defence of diminished responsibility was rejected by the jury and he was convicted of murder. On appeal there was no complaint about the terms of the summing up, . .
Cited – Regina v Dietschmann HL 27-Feb-2003
Voluntary drunkenness No Diminished Responsibility
The defendant had been convicted of murder. At the time of the assault, he was both intoxicated to the point of losing his inhibitions and was also suffering an abnormality of mind sufficient substantially to reduce his mental responsibility.
Cited – Wood, Regina v (No 1) CACD 20-Jun-2008
The defendant appealed against his conviction for murder, saying that he suffered from alcohol dependency syndrome, and that this amounted to a diminished responsibility.
Held: The appeal succeeded and and a conviction for manslaughter was . .
Cited – Elvan Rose v The Queen PC 1961
Lord Tucker said: ‘A man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially impairs his mental responsibility’. . .
Cited – Regina v Brown (Davina) CACD 1-May-2001
A judge had a continuing duty during a trial to keep in mind the possibility of directing an acquittal. He must take care not to usurp the jury’s function. Nevertheless that jurisdiction should be exercised only sparingly, and only where he was . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 December 2021; Ref: scu.365624

Regina v Jagdev: CACD 31 May 2002

The court was considering the terms of a confiscation order. It decided to postpone the decision beyond the six month limit. Questions had arisen about the apparent shift of the burden of proof. Two cases were due to be heard by the Court of Appeal which would affect the issue before the court.
Held: The anticipation of decisions by a senior court could be an exceptional circumstance where further information was required, and which could justify such an adjournment.

Lord Justice Potter, Mrs Justice Rafferty and Mr Justice Hedley
Times 04-Jul-2002, Gazette 04-Jul-2002, [2002] 1 WLR 3017, [2002] EWCA Crim 1326
Bailii
Drug Trafficking Act 1994 3
England and Wales
Cited by:
Cited – Commissioners of Customs and Excise v DFS Furniture Company Plc ChD 16-Apr-2003
The Commissioners had been ordered to repay VAT to the taxpayer. A subsequent decision of the ECJ meant that the sum should have been repaid to the Commissioners. The taxpayer now alleged that the commissioners were out of the two year maximum time . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 December 2021; Ref: scu.174174

Khaledian v Belgium: ECHR 18 Nov 2014

The applicant alleged that due to the lack of basis shown for the verdict of the court of assizes, his trial was unfair and violated Article 6 – 1 of the Convention, the relevant part of read: ‘Everyone has the right to have his fair hearing (…) by a court (…) will decide (…) the merits of any criminal charge against him

Guido Raimondi, P
42874/09 – Chamber Judgment, [2014] ECHR 1299
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 23 December 2021; Ref: scu.538943

Serious Fraud Office v Evans and Others: QBD 14 Nov 2014

The court faced an application by the SFO for a voluntary bill of indictment. Similar charges against the defendants had been discharged. The allegations involved very substantial alleged frauds.

Fulford LJ
[2014] EWHC 3803 (QB)
Bailii
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)(b)
England and Wales
Citing:
Cited – Regina (on the Application of) Snelgrove v the Crown Court at Woolwich, and the Crown Prosecution Service Admn 29-Sep-2004
The claimant awaited trial for GBH. The claimant sought judicial review of directions given for 1) to direct disclosure of material to the claimant; 2) to adjourn the application to enable him to call oral evidence; 3) to consider any material . .
Cited – Thompson and Another, Regina v CACD 22-Nov-2006
The prosecution sought leave to appeal the quashing of an indictment.
Held: Section 53 of the 2003 Act could not be used for this purpose. The defendants had successfully challenged the adequacy of the Crown’s case before trial. The defendants . .

Cited by:
Refusal of Voluntary indictment – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
evans_sfoQBD201502
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 December 2021; Ref: scu.538899

PeltereauVilleneuve v Switzerland: ECHR 28 Oct 2014

ECHR Relying on Article 6 – 2 of the Convention, the applicant alleges that the terms used by the Attorney General in its order for dismissal of charges for prescription of prosecution had violated his right to respect for the presumption of innocence

Guido Raimondi, P
60101/09 – Chamber Judgment, [2014] ECHR 1152
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 23 December 2021; Ref: scu.538224

Svinarenko And Slyadnev v Russia: ECHR 17 Jul 2014

ECHR Grand Chamber – Article 3
Degrading treatment
Use of metal cage to hold defendants during criminal trial: violation
Facts – Both applicants were charged with criminal offences including robbery. In a series of court appearances during the trial proceedings, they were confined in a caged enclosure measuring about 1.5 by 2.5 metres and formed by metal rods on four sides and a wire ceiling.
In a judgment of 11 December 2012, a Chamber of the Court held unanimously that their confinement to the cage had constituted degrading treatment in breach of Article 3 of the Convention.
Law – Article 3: The Government submitted that recourse to a cage had been justified to ensure proper conditions for holding the trial, having regard to the violent nature of the offences charged, the applicants’ criminal records and the victims’ and witnesses’ fears of the applicants.
The Court observed that while order and security in the courtroom were indispensable for the proper administration of justice, the means used to achieve that end must not involve measures of restraint of such severity as to bring them within the scope of Article 3, which prohibited torture and inhuman or degrading treatment or punishment in absolute terms.
The applicants had been tried in open court by a jury. The hearings had been attended by some 70 witnesses. In these circumstances, their exposure to the public eye in a cage must have undermined their image and aroused in them feelings of humiliation, helplessness, fear, anguish and inferiority. They had been subjected to this treatment throughout the trial, which had lasted for over a year, with several hearings almost every month. They must also have had objectively justified fears that their exposure in a cage would undermine the presumption of innocence by conveying to the judges the impression that they were dangerous. The Court found no convincing arguments to show that holding a defendant in a cage during a trial was a necessary means of physically restraining him, preventing his escape, dealing with disorderly or aggressive behaviour, or protecting him against aggression from the outside. Its continued practice could therefore only be understood as a means of degrading and humiliating the caged person. Accordingly, the applicants had been subjected to distress of an intensity exceeding the unavoidable level of suffering inherent in their detention during a court appearance, and their confinement in a cage had attained the ‘minimum level of severity’ to bring it within the scope of Article 3.
A series of Chamber judgments had in recent years found a violation of Article 3 in cases where the use of a cage was not justified by security considerations. However, the Grand Chamber did not consider that the use of cages in this context could ever be justified under Article 3. In any event, even assuming it could be, the Government’s allegation that the applicants represented a threat to security had not been substantiated.
The Court reiterated that the very essence of the Convention was respect for human dignity and that the object and purpose of the Convention as an instrument for the protection of individual human beings required that its provisions were interpreted and applied so as to make its safeguards practical and effective. In view of its objectively degrading nature, holding a person in a metal cage during trial in itself constituted an affront to human dignity. The applicants’ confinement in a metal cage in the courtroom had thus amounted to degrading treatment in breach of Article 3.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 6 – 1 on account of the length of the criminal proceedings.
Article 41: EUR 10,000 each in respect of non-pecuniary damage.

Dean Spielmann, P
32541/08 43441/08 – Grand Chamber Judgment, [2014] ECHR 790, [2014] ECHR 973, 32541/08 43441/08 – Legal Summary, [2014] ECHR 1074
Bailii, Bailii, Bailii
European Convention on Human Rights, European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 22 December 2021; Ref: scu.537551

Robson v HM Advocate: HCJ 6 Oct 2014

Application for leave to appeal to Supreme Court – refused – Holland had been followed

Lady Paton, Lady Smith, Lord Drummond Young
[2014] ScotHC HCJAC – 109
Bailii
Citing:
Applied – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .

Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 22 December 2021; Ref: scu.537447

Contrada v Italy: ECHR 24 Aug 1998

Judgment – Article 5-1(c): alleged unlawfulness of detention – ground declared inadmissible by Commission.
Article 3: conditions of detention (solitary confinement in military prisons): although applicant had complained from outset that he had been detained for an unreasonable period (Article 5-3), complaint under Article 3 concerned actual conditions of detention, not its length.
Court had no jurisdiction ratione materiae to hear those complaints, as first was identical to one declared inadmissible by Commission and second had to be regarded as new.

[1998] ECHR 73, [1998] HRCD 795, 92/1997/876/1088
Bailii
European Convention on Human Rights 5(3)
Citing:
See Also – Contrada v Italy ECHR 24-Aug-1998
The court rejected a complaint under article 5(3). The court said: ‘The right of an accused in detention to have his case examined with particular expedition must not hinder the efforts of the courts to carry out their tasks with proper care . . In . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 22 December 2021; Ref: scu.537374

Regina v Myers: HL 24 Jul 1997

The House was asked: ‘In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B’s defence, or does such a confession in all circumstances offend the rule against hearsay?’
Held: A co-defendant may be cross examined by a defendant as to the content of his statements even though it was incriminating of that co-defendant and otherwise inadmissible.

Lord Mustill Lord Slynn of Hadley Lord Steyn,
Lord Hope of Craighead Lord Hutton
Times 31-Jul-1997, Gazette 17-Sep-1997, [1997] Crim LR 888, [1997] UKHL 36, [1998] AC 124, [1997] 4 All ER 314, [1997] 3 WLR 552, [1998] 1 Cr App Rep 153
Bailii
England and Wales

Criminal Evidence, Criminal Practice

Updated: 22 December 2021; Ref: scu.158910

M, Regina (on The Application of) v Kingston Crown Court: Admn 17 Jul 2014

The court had ordered the defendant, before his trial for a serious assault, to be remitted to a mental hospital under section 35 of the 1983 Act, so that a report could be prepared as to his mental condition. The central issue would be his capacity to form the necessary intent. The defendant appealed saying that the Court did not have jurisdiction to make such an order.
Held: The purpose of the order was in reality to further the Crown’s case that he had capacity. The provisions in the section, however: ‘do not permit an order to be made for the purpose of obtaining evidence relevant to an issue at trial. The purpose of an order under section 35 would be to inform a court about issues relating to fitness to plead and to disposal. In so far as evidence emerges which affects the view of the psychiatrists as to an issue which arises in the trial, or in so far as something is said in detention, during assessment or not, which the Crown seek to use against him, its admissibility will be subject to section 78 of the Police and Criminal Evidence Act 1984.’

[2014] EWHC 2702 (Admin), [2015] 1 Cr App R 3, [2016] 1 WLR 1685, [2014] WLR(D) 328, [2015] Crim LR 436, (2014) 178 JP 438, [2015] MHLR 79, [2015] 4 All ER 1028
Bailii, WLRD
Senior Courts Act 1981, Mental Health Act 1983 35
England and Wales

Criminal Practice

Updated: 21 December 2021; Ref: scu.537243

Domican v The Queen: 1992

(Australia) Mason CJ said: ‘A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. See R v Bartels (1986) 44 SASR [260] at pp 270-271; cf R v Goode [1970] SASR 69, at p 77. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. See R v Gaunt [1964] NSWR 864, at p 867. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.’

Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(1992) 173 CLR 555
Australia
Cited by:
Cited – Queen v Beckford and Another PC 30-Jun-1993
The court rehearsed the Australian cases on the dangers of relying upon identification evidence, the need for proper jury directions, and the dangers of a court of appeal maintaining a conviction where an inadequate direction had been given relying . .
Cited – Shand v The Queen PC 27-Nov-1995
(Jamaica) The case for the defence was that the identification witnesses were deliberately lying and it was not suggested that they were mistaken, so that the sole line of defence was fabrication. The identification evidence was exceptionally good . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 December 2021; Ref: scu.222034

Banfield, Regina v: CACD 11 Sep 2014

The court was asked whether, when a representation order has been made by this court for leading counsel for an appellant, additional costs incurred on a private basis can be recovered by those acting for the appellant.

Sir John Thomas LCJ, Raffrty LJ, Holroyde J
[2014] EWCA Crim 1824
Bailii
England and Wales

Criminal Practice, Costs

Updated: 21 December 2021; Ref: scu.536528

Virgin Media Ltd, Regina (on The Application of) v Zinga: CACD 11 Sep 2014

Virgin had successfully taken a private prosecution against the defendants for copyright infringement. They sought an order for their costs to be paid from central funds. On taking confiscation proceedings, costs were now sought against the defendants. The court was asked what rates should apply.

Sir John Thomas LCJ, Raffrty LJ, Holroyde J
[2014] EWCA Crim 1823
Bailii
Prosecution of Offences Act 1985 17, Costs in Criminal Cases (General) Regulations 1986
England and Wales
Citing:
Cited – Practice Direction On Costs In Criminal Proceedings CACD 3-Oct-2013
. .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Costs

Updated: 21 December 2021; Ref: scu.536529

Regina (Crown Prosecution Service) v South East Surrey Youth Court: QBD 8 Dec 2005

The prosecutor appealed a decision of a Youth Court to try an allegation of assault occasioning actual bodily harm.
Held: There was a clear policy that youths under 18 shuld be tried in youth courts. New divisions of cases were to be implemented but the consolidating legislation has not been brought into effect. The Lang guidelines are relevant. There was a need for rigorous examination of a suggestion that a case should be remitted to the Crown Court. Where the case itself was not sufficiently serious to justify remission, any suggestion of dangerousness should be considered only after conviction.

Rose LJ, Crane, Openshaw JJ
Times 28-Dec-2005
Crime and Disorder Act 1998 51A(3)(d)
England and Wales
Citing:
Cited – Lang and Others, Regina v CACD 3-Nov-2005
In each case the defendant had commited violent or sexual offences and were caught by the new mandatory sentencing provisions, and been made subject to life imprisonment, or detention for public protection, or an extended sentence.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 21 December 2021; Ref: scu.237551

Thompson v Nixon: QBD 1966

The court felt bound to follow the interpretation of the meaning of bailee in the 1916 Act from Matthews, even if, given the freedom to do so it would have interpreted it differently: ‘the present case falls four square within the decision in Reg v Matthews . . That case having been quoted in the textbooks ever since, no writer had ever suggested that it was bad law . . Dealing as we are today with a statute that affects the liberty of the subject, it does not seem to me that it is permissible to adopt a different construction of the relevant words to that which has so long stood as law, and now for the first time in effect to construe them adversely to the defendant in this case.’

Sachs J, Lord Parker CJ and Browne J
[1966] 1 QB 103
Larceny Act 1916
England and Wales
Citing:
Cited – Regina v Matthews CCCR 1873
(Court of Crown Cases Reserved) Interpretation of bailee in law of larceny. . .

Cited by:
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .

Lists of cited by and citing cases may be incomplete.

Crime, Criminal Practice

Updated: 20 December 2021; Ref: scu.223718

Regina v Gearing: CACD 1966

Lord Parker CJ said: ‘It has always been a very strict rule of this court that no evidence whatever must be introduced after the jury have retired.’

Lord Parker CJ
[1968] 1 WLR 344, [1966] 50 CAR 18
England and Wales
Citing:
Cited – Regina v Owen CCA 1952
The trial judge allowed a doctor who had already given evidence in the case, to be recalled to give evidence in answer to a question raised by the jury after its retirement.
Held: The conviction was quashed: ‘ . . Once the summing up is . .

Cited by:
Cited – Regina v Karakaya CACD 16-Feb-2005
No Internet Research for juror
After conclusion of the trial, the jury bailiff discovered notes in the jury room which indictated that the jury, after they had retired for their verdict, had read and discussed notes obtained by a juror from the Internet relating to the case.
Criminal Practice

Updated: 20 December 2021; Ref: scu.223466

Regina v A (Joinder of Appropriate Minister): HL 21 Mar 2001

An appeal was to be heard by the committee in which it was expected that a declaration of incompatibility would be considered in respect of legislation restricting the raising by a defendant on a charge of rape of the complainant’s sexual history. Though the Crown would conduct the appeal, the Home Secretary, whose Act was in issue sought to be joined. The case was still in anticipation of the trial, and the rules anticipated notice being served when such a declaration was considered. Nevertheless, the proposal would improve efficiency, and the Director of Public Prosecutions served a different function in the appeal. The Home Secretary could be allowed to be joined at this stage.

Times 21-Mar-2001
Human Rights Act 1998 5 41, Criminal Appeal (Amendment) Rules 2000 (2000 No 2036), Youth Justice and Criminal Evidence Act 1999 41
England and Wales
Cited by:
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
See Also – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Criminal Practice, Human Rights

Updated: 20 December 2021; Ref: scu.88368

The Lord Chancellor v Ahmed: Admn 15 Oct 2013

The defendant had been charged generally under a provision which allowed two possible offences. His advocate made his claim for the more serious offence, which fell into a more highly paid category. The Lord Chancellor appealed.
Held: The appealed failed: ‘It is quite clear that if a defendant is charged with two different offences and those two offences appear in different Classes, the trial advocate can choose which of the offences he is applying for payment in relation to, so that he can choose the one that will obviously pay him better if there is a difference in the level of remuneration’ and ‘Section 3(1)(e), as I have already stated, provides that where any entry in the table of offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in that entry the entry will include every offence contrary to that statutory provision whether or not the words of description in that entry are appropriate to cover all such offences. The only entry in the table of offences relating to an offence contrary to section 170(1)(b) is under Classes F, G and K, described as ‘fraudulent evasion of duty’. Unless those words in some way expressly limit the offence, then all other offences indicted under section 170(1)(b) would also fall in that category. ‘

Andrews J
[2013] EWHC 3642 (QB)
Bailii
Criminal Service Funding Order 2007

Costs, Criminal Practice

Updated: 20 December 2021; Ref: scu.536021

Panesar and Others, Regina (on The Application of) v The Central Criminal Court: Admn 14 Aug 2014

The court considered an application for permission to seek judicial review of search warrants and restraint orders, following recent decisions in which such orders had been successfully challenged, and in particular as to the retention of documents and copies after the warrants had been revoked.

Sir John Thomas LCJ, Foskett J
[2014] EWHC 2821 (Admin)
Bailii
Criminal Justice and Police Act 2001 59(5)(b)

Criminal Practice, Police

Updated: 20 December 2021; Ref: scu.535824

IS (Illegalite De L’Ordonnance De Renvoi) (Judgment): ECJ 23 Nov 2021

Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2010/64/EU – Article 5 – Quality of the interpretation and translation – Directive 2012/13/EU – Right to information in criminal proceedings – Article 4(5) and Article 6(1) – Right to information about the accusation – Right to interpretation and translation – Directive 2016/343/EU – Right to an effective remedy and to a fair trial – Article 48(2) of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Second subparagraph of Article 19(1) TEU – Admissibility – Appeal in the interests of the law against a decision ordering a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the request for a preliminary ruling unlawful

C-564/19, [2021] EUECJ C-564/19
Bailii
European

Criminal Practice

Updated: 20 December 2021; Ref: scu.670025