prompt
stringclasses 1
value | context
stringlengths 1.29k
436k
| output
stringlengths 87
373
|
|---|---|---|
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 276
Case No:
200706590/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 28th January 2009
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE BEAN
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ABBAS HUSSAIN KHANANI
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr S Csoka
appeared on behalf of the
Appellant
Mr A Bird
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: On 23rd November 2007 at Kingston-upon-Thames Crown Court before Her Honour Judge Matthews QC, Abbas Hussain Khanani and his son, Ameer Khanani, were each convicted of entering into a money laundering arrangement, contrary to
section 328 of the Proceeds of Crime Act 2002
. Each was given leave to appeal against conviction by the single judge on limited grounds. Mr Khanani (Junior) has not pursued his appeal and we are therefore concerned only with the appeal of Mr Khanani (Senior). That appeal has proceeded on a single issue but to see how the issue arises it is necessary to give some more general account of the prosecution's case.
2.
In a nutshell, the prosecution case was that the appellant and his son were responsible for the United Kingdom operation of a Hawala banking network and that they utilised that arrangement to facilitate the acquisition of criminal funds on behalf of the appellant's principal in Pakistan. There is nothing unlawful or irregular in itself about a Hawala banking system. The judge and jury were assisted by admissions made by both parties about the nature of such a system. We quote from the admissions:
"Hawala is a method by which funds can be transferred between people or companies, often across international boundaries. A particular Hawala system will generally be built upon links based upon family, tribe or ethnicity. Transfers of Hawala funds are facilitated through an informal system operated by active Hawalader Brokers, who execute
swaps
of
value
or transfers between themselves to settle debts, thus reducing the amount of administrative records and avoiding local controls. The system is built both upon trust and on a history of success.
In 2005 the Court of Appeal in Hussain and Ali
[2005] EWCA Crim 87
21 & 22 paragraphs described the detail of the process as follows:
'21. Hawala banking is an arrangement by which individuals (or intermediaries who have collected money from individuals) deposit money, usually in the form of modest amounts of cash, with a Hawalader in, for example, the UK to be remitted to beneficiaries abroad, commonly in the country from which the remitters' family originate, for example Pakistan. The UK Hawalader will have a Hawala contact in Pakistan who will pay a sum in rupees, at a rate of exchange which may have been agreed with the remitter in advance. The payment will commonly be made more quickly, more cheaply and with less formality than any corresponding service that might be available through the medium of the commercial banks. There is commonly a family relationship between the UK Hawalader and his contact in Pakistan which enables the transaction to be completed with a greater reliance on trust than is necessary in other commercial financial dealings.
22. For ordinary Hawala there must be records to show the identities of the individuals from whom the money had originally been collected in the UK and of those to whom it was ultimately to be paid in Pakistan.'
It is not inconsistent with the Hawala process that a Hawaladar or his agent in the UK should collect a stock of cash from different customers and use it to compete entirely separate transactions on behalf of a Pakistani Hawaladar.
Hawala banking represents (for the customer) an alternative to the use of the conventional banking system, but a Hawala banker in the UK is subject to exactly the same legal obligations as a conventional banker."
3.
The case against the appellant was that very large sums of cash were collected, generally by the appellant's son in an unorthodox way and for which the appellant and his son did not keep proper records.
4.
During the weeks leading up to the search of the appellant's premises there were surveillance activities, as a result of which the appellant's son could be seen going about by car and collecting what the prosecution said were transfers of cash in the street or outside an underground station, in peculiar circumstances, that is to say, that the transfers were carried out swiftly and without the monies being counted or a receipt given.
5.
On 31st August 2004 customs officers searched the home address from which this business was conducted. The appellant himself was at this stage in Pakistan having flown there a few days earlier. Cash books and ledgers were found. The records were mainly in the appellant's handwriting.
6.
The records, which did not go back before 2004, had some striking features about them. The true names of many depositors were not recorded. The amounts recorded as received were in many cases shown as 1 per cent of the true amount which could be deduced from other documents. There was, for instance, an entry recording £1049.20 but which from other evidence could be shown to relate to a receipt of £104,920. On the day before the police search, officers had observed a Dutch national, named Floor, enter the United Kingdom from Amsterdam. He flew into Heathrow and checked into a hotel. He checked out of the hotel on the following morning and took a taxi to Leyton Underground station. There he met the appellant's son, who was in a Fiat car. Floor put a brown holdall on the back seat of the car. At that point both men were arrested. The holdall contained £140,000 in bank notes. Floor was granted bail but later absconded. Although the appellant himself was out of the country, the prosecution relied on this incident not only against the appellant's son but also more generally as showing the nature of the business at that time. If the £140,000 was honest money, there were much simpler ways for it to have been moved than by Floor flying to England, taking a taxi to East London and handing it over in a holdall to the appellant's son outside an Underground station.
7.
As an indication of the scale of the appellant's activities, over £2 million in cash was received in a 2-month period from the beginning of July to the end of August 2004. The money received by the appellant was not banked but kept in cash at his home. At the time of the police search the cash found there amounted to over £90,000.
8.
The prosecution's case was that these features taken together provided ample material from which a jury might properly infer that the appellant was providing a service to criminals in possession of large sums of cash who wanted it processed in a way which obscured their identity and left no documentary trail that would lead back to them.
9.
The sole issue pursued on this appeal concerns the dates within which the offence charged under
section 328
was alleged to have been committed. Whereas in many cases juries are told that precise dates in an indictment are immaterial, that was not the case here. For the appellant to be guilty as charged, the offence must have been committed not earlier than the indictment period, because this was the effect of the statutory instrument bringing the relevant section into force. If the conduct which constituted the offence had begun prior to the indictment period, it would not have been criminal and therefore prosecution for it would contravene the principle against imposing retrospective criminal liability.
10.
The offence is defined as follows:
"A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."
The way in which the prosecution presented its case was that the relevant "other person" for the purposes of this case was the appellant's principal in Karachi. But the prosecution did not have to prove any
mens rea
on the part of that other person. Under
section 328
one may have an arrangement between an agent, A, and principal, P, which in the mind of P is at all times lawful, but which at some stage is used by A to facilitate the acquisition on behalf of P of property which is criminal and is known or suspected by A to be criminal. If so, at that point A becomes guilty of an offence under the section, albeit that P is not guilty. It all seems rather technical but this flows from the various ingredients of the offence.
11.
The judge in due course gave the jury written directions in which she correctly directed the jury that an offence would be committed under the section if and when three separate elements all requiring to be proved were established. Those three elements were these: first, there must be money which the jury was sure represented the proceeds of crime, directly or indirectly and in whole or in part. Secondly, the defendant must enter into or become concerned in an arrangement in relation to that money, namely one which he knew or suspected would facilitate its acquisition, use, control or retention. Thirdly, the jury had to be satisfied that the defendant knew or suspected that the money represented the proceeds of crime. No offence would be committed unless and until all three ingredients were established. One could therefore have an arrangement which was initially intended to be lawful, and which remained lawful in the mind of P, but under which A committed an offence contrary to
section 328
by utilising that arrangement for the acquisition on P's behalf of property which was criminal and he knew to be criminal. At that stage he would then become concerned in an arrangement prohibited by the section.
12.
The appellant gave evidence to the effect that in 2001 to 2002 he entered into an arrangement with a respected businessman who carried out a money exchange business in Karachi, and that thereafter the money collecting that he did in the United Kingdom was done pursuant to that arrangement and for the benefit of that principal. The appellant denied any suspicion at any stage that the monies which he was instrumental in receiving and passing on had a criminal source. The jury plainly disbelieved him on that. He also maintained that the nature of his arrangement with his Pakistani principal was the same throughout the material period. The judge summarising his evidence on this point said as follows:
"He told you that once the system had started it didn't operate differently between 2002 and 2004, though, he said, by 2004 the operation was less active and the amounts that were going through were smaller. He said, 'From the time I started this arrangement with Altaf Khananai I never had any suspicions. He had been introduced by someone I knew. He was a credible businessman. The company of Khanani and Khalia enjoyed an excellent reputation and I thought the cash came from the money service bureaux and I had no reason to doubt this. I never considered or wondered if it came from crime.'"
13.
After the appellant had given his evidence Mr Csoka, who appeared for the appellant below as he has done before this court, submitted that the judge ought to withdraw the case from the jury because on that evidence the arrangement, whatever it had been, had begun before the indictment period, which itself was from 23rd February 2003 to 1st September 2004. Therefore, if the prosecution were right in their arguments about the nature of the arrangement, the offence under
section 328
predated the indictment period and predated the time when such an arrangement became criminal. The judge rejected that submission. Mr Csoka has renewed it before this court.
14.
In our judgment the argument contains a fallacy. As already stressed, the offence could only be committed when the prosecution were able to show that all the necessary ingredients of that offence were established. They therefore had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed.
15.
During the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante dated the indictment period, but it by no means follows that criminal property was being processed under it. As to that, there simply was no evidence other than the broad assertion by the appellant that the nature of the arrangement was the same. But this was not, we stress, a case in which the appellant himself was putting forward material to show the receipt of criminal property at an earlier date. Quite the reverse. Moreover, even if the jury were to disbelieve the appellant's evidence about being in honest receipt of substantial sums, prior to the indictment date, that did not mean that there was evidence that he had received criminal sums prior to the indictment date. As Scrutton LJ we believe once commented, if a man says that he did not go to Paris and is disbelieved, that is no evidence that he went to Paris.
16.
Mr Csoka went further. He submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge.
17.
Finally, Mr Csoka criticised the way in which the judge summed-up this issue to the jury. In our judgment, there is no substance in that criticism and accordingly this appeal is dismissed.
18.
MR BIRD: My Lords know that there is an earlier judgment of this court on the interlocutory appeal. There was a ruling given then in relation to publicity. Now there is going to be no more trial for the Khananis, it seems that the ruling on publicity can be lifted.
19.
LORD JUSTICE TOULSON: Have you anything to say about that, Mr Csoka?
20.
MR CSOKA: No, my Lord.
21.
LORD JUSTICE TOULSON: We agree. | ```yaml
citation: '[2009] EWCA Crim 276'
date: '2009-01-28'
judges:
- LORD JUSTICE TOULSON
- MR JUSTICE BEAN
- HIS HONOUR JUDGE PAGET QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No. 2008/06690/C2 & 2008/06688/C2
Neutral Citation Number:
[2011] EWCA Crim 3111
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 13 December 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE SWEENEY
and
MR JUSTICE SINGH
- - - - - - - - - - - - - -
R E G I N A
- v -
JOHN HAASE
PAUL BENNETT
- - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr A Jones QC
appeared on behalf of the Appellant John Haase and the Applicant Paul Bennett
Mr D Atkinson
appeared on behalf of the Crown
- - - - - - - - - - - - - -
J U D G M E N T
Tuesday 13 December 2011
THE LORD CHIEF JUSTICE:
1. On 19 November 2008, in the Crown Court at Southwark, before Cooke J and a jury, John Haase and Paul Bennett were convicted of conspiracy to pervert the course of public justice. Haase was sentenced to 22 years' imprisonment and Bennett to 20 years' imprisonment. Appropriate orders were made in relation to any time spent in custody on remand.
2. On the same date Deborah Haase (John Haase's wife) and Sharon Knowles were convicted of the same conspiracy. Paul Thompson, although acquitted of the conspiracy, was convicted of possession of firearms without lawful authority. Knowles was sentenced to five years' imprisonment, Deborah Haase to four years' imprisonment, and Paul Thompson to four years' imprisonment. A further conspirator, Hennigan, had earlier pleaded guilty. He was sentenced to 30 months' imprisonment. Due allowance was made for his guilty plea and his lesser role in the conspiracy. These four, Deborah Haase, Sharon Knowles, Paul Thompson and Hennigan were foot soldiers of the conspiracy. John Haase and Paul Bennett were its leaders.
3. Knowles and Haase appealed against sentence with the leave of the single judge. Thompson's application for leave to appeal against sentence was referred directly to the full court, and leave was granted. The appeals of all three were dismissed. Applications by John Haase and Hennigan were refused by the single judge and were not then renewed. Bennett renewed his application following refusal by the single judge and then abandoned it. John Haase now appeals against sentence with the leave of the full court which granted the necessary extension of time. Bennett seeks, through new solicitors, to have his abandonment of an appeal against sentence to be treated as a nullity. For convenience only we shall describe both John Haase and Paul Bennett as "the appellants", although in the result Bennett remains an applicant whose application has been refused.
4. In the judgment dismissing the appeals by Knowles, Deborah Haase and Thompson, the court observed that this was an "elaborate, unusual (if not unique) conspiracy" and that it was not possible to exaggerate its seriousness.
5. The objective of the conspiracy was to enable John Haase and Bennett to escape the level of sentence which would have been appropriate following their convictions for involvement in very substantial drug dealing on an international basis. There was a carefully organised pretence that they had given genuine assistance to the authorities which merited a substantial discount from what would otherwise have been the appropriate sentence for their involvement in the drug dealing conspiracy.
6. They were arrested in July 1993 following a major investigation into the importation of Class A drugs into the country. They were the United Kingdom end of an international drugs smuggling operation which had its origins in Turkey. The evidence against them was very strong. They decided that they would plead guilty, but that the guilty pleas would be tendered in the context of the criminal conspiracy of which they were to be convicted in November 2008. The conspirators decided that mitigation would be advanced to the sentencing judge on the basis that the two defendants (as they then were) could provide, and had provided, information of great value to the police and investigating authorities of major criminal activity by other criminals. They became registered as police informers.
7. Steps were taken to delay the proceedings against them so that the information which they purported to provide could be investigated.
8. Between October 1993 and August 1995 a substantial amount of apparently true information relating to apparent criminal activities by others was provided. Among that information the whereabouts of firearms and related explosive materials was made available. Indeed, no less than 28 substantial firearms' seizures were made on the basis of the information. As the judgment dealing with the appeals of Knowles, Deborah Haase and Thompson made clear, this was all a charade.
9. The appellants had made arrangements (via, among other things, the use of their mobile phones while in custody) for the firearms to be procured and placed in apparently secret hiding places. They then arranged for the whereabouts of the firearms to be disclosed to the authorities so that it would look as though genuine intelligence was being provided by the police informers. In its earlier judgment the court described the conspiracy in these terms:
"9. .... It was a major conspiracy of its kind. Over the months seizures were made of firearms which included sub-machine guns, assault rifles, handguns and shotguns. The most important seizure of firearms included 9mm automatic pistols that were found in Holyhead. The purpose was to make it look as though they were destined to be sent to the Republic of Ireland at an extremely sensitive time during the peace process. .... Among other serious elements of the offence, a handgun was smuggled into Her Majesty's Prison Manchester and attributed to a prisoner who was facing a murder trial."
In addition to their apparent efforts to enable the police to seize firearms and weapons, the appellants provided significant information about a number of professional criminals who operated in the Merseyside area.
10. All this information was treated as if it were genuine, provided by police informants who were doing their best to assist the investigating authorities in the hope that the extent of their co-operation and assistance would be taken into account when the judge came to sentence them for their involvement in the drug trafficking operation. In truth, it was the appellants who had made arrangements by the use of their mobile phones to ensure that firearms were found in places where they indicated to the investigating authorities they would be found. In other words, although it looked as if genuine intelligence was being provided, it was not. As to their information about professional crime in the Merseyside area, by the time the information was provided it was of some, but very limited, use. The appellants never intended that it should be anything more.
11. The case was listed for plea. The appellants pleaded guilty. The appropriate sentence for the offences they had committed was eighteen years' imprisonment. That was the sentence imposed in open court. The judge, His Honour Judge Lynch, was provided, in camera, with evidence which underlined the valuable information which the two appellants had provided. However, had the sentence pronounced in court reflected the significant discount which would have been merited if the information provided by the appellants had been genuine, it would have revealed to the criminal fraternity that they had provided real assistance to the authorities. That would never do.
12. To resolve the problem, with the agreement of counsel acting for the appellants, the judge imposed the sentences of eighteen years' imprisonment and deliberately made no allowance in his sentencing decision for the assistance he believed that the appellants had provided. But he indicated that in due course he would notify the Home Office, on the basis of the information provided, of the sentence that he would have imposed. That sentence would have been five years' imprisonment.
13. In due course, when that information was provided to the Home Office, the Secretary of State for the Home Department exercised the Royal Prerogative and the appellants were then dealt with as if a sentence of five years' imprisonment had been imposed rather than one of eighteen years' imprisonment.
14. Judge Lynch gave evidence at the trial in 2008. He explained that he was very impressed with the information given to him about the gun caches, the weapon seizures and the other matters, particularly in the light of what was then an increasing level of gun crime in Merseyside during the 1990s. On the basis that the information the appellants had provided was genuine, he had acted within well-established principles when he indicated that if the material had been genuine, the appropriate level of sentence would have been five years' imprisonment.
15. In the end the sentence was treated as one of five years' imprisonment. Subject to appropriate discounts in accordance with the statutory regimes then in force, that was the period that the appellants served in custody. In short, following the sentencing hearing in August 1995, they were released from custody in July 1996. The conspiracy we have described had succeeded. The sentence of eighteen years' imprisonment, which was fully justified and for which no discount was appropriate on the basis of assistance to the authorities because none had been given, was reduced by thirteen years.
16. The two appellant returned to Merseyside. Haase became involved in further criminal activities. In February 2001 he was sentenced to thirteen years' imprisonment for possession of a firearm and money laundering.
17. The early release of the appellants caused considerable concern. In February 2004 Haase provided Peter Kilfoyle MP with an affidavit in which he admitted misleading the judge during the hearing in 1995. However, when he was later interviewed by the police he began by making no comment. In a subsequent interview he denied that the sentencing judge had been misled. He asserted that the information provided was genuine and that he had effectively made up the contents of the affidavit given to Mr Kilfoyle.
18. In 2008 Cooke J took the view that the offence of which the appellants and the co-conspirators were convicted was unique, sophisticated and very serious; it struck at the basis of the entire system of justice. He concluded that this was a deliberate plan to deceive the sentencing court by exploiting the informant system. The appellant Haase was the main organiser. Bennett was younger and marginally less involved than Haase. In assessing sentence, the judge expressly took account of the amount of reduction in sentence achieved by the conspiracy (ie the thirteen years).
19. Mr Alun Jones QC, in support of Haase's appeal against sentence and acting on behalf of Bennett in his application, accepted that Haase's conviction for such a grave offence merited a long sentence. Nevertheless, he submitted that a sentence of 22 years' imprisonment, which took effect towards the end of the sentence of thirteen years' imprisonment imposed in 2001 is excessive -- certainly if looked at as a total sentence of 35 years' imprisonment imposed on the basis of the offences before the court in 1995, 2001 and 2008. He also suggested that the sentence was wrong in principle. He submitted that the sentence fell within the maximum sentence available following conviction for the particular conspiracy of which the appellants were convicted. However, he contended that it exceeded, or failed sufficiently to attend to the maximum sentence of ten years' imprisonment permitted for offences of conspiracy to defraud by virtue of
section 12(3)
of the
Criminal Justice Act 1987
, as well as the maximum terms available for perjury (seven years) and other offences of dishonesty and fraud (fourteen years). He also suggested that the sentence of 22 years' imprisonment constituted a breach of Article 5 of the European Convention on Human Rights; alternatively, it was based on too much uncertainty because there is no clear point by reference to statute or authority or practice to indicate that such a sentence might be imposed or would be appropriate. Accordingly, the sentence fell within the impermissible ambit of arbitrariness.
20. In developing his interesting argument, Mr Jones submitted that in the context of the facts of the case the conspiracy to pervert the course of justice was a conspiracy to defraud. For present purposes, as we indicted when the appeal began, we approached his submission on the basis that was accepted by the court which considered the application for leave to appeal against conviction. In giving the judgment of the court on that occasion, Moses LJ observed:
"Mr Jones is undoubtedly right in pointing out that it is possible to complete a conspiracy to defraud by cheating and deceiving public officials in the exercise of their public functions so that they carry out their duty in a way that, but for the deception, they would not. That that is a correct principle is made good in the decision of the court in
R v Vreones
[1890] 1 QB 360
. The decision of the court was followed in cases such as
Scott v Metropolitan Police Commissioner
[1975] AC 819
. It is not, in order to make good conspiracy to defraud a public official, necessary to prove an intent to cause or to risk economic loss, and that conspiracy to pervert the administration of public justice will in almost every case include a conspiracy to defraud is well established. It will not of course include any conspiracy to defraud in a case such as witness intimidation."
21. Mr Jones submitted that on this basis the offence amounted to, and could have been indicted as, conspiracy to defraud. If so, the maximum term of ten years' imprisonment would have applied. He drew attention to a decision of this court in
R v Bright
[2008] 2 Cr App R(S) 102, where the Court of Appeal held that it might sometimes be appropriate for an offender who has been convicted of an offence which fell within the definition of a different offence with a lower maximum sentence to be sentenced as if that lower maximum applied. Mr Jones provided, in writing, a number of examples. He went on to submit that the principle applied with further force where the offence charged was a residual common law offence in which the appropriate maximum penalty had never been directly considered by Parliament. He suggested that the general policy in relation to sentencing is that an inchoate offence should not be punishable by a greater penalty than the completed offence. For this purpose he drew attention to the maximum sentence provided by statute in relation to obtaining property by fraud or dishonesty, and the seven year maximum for perjury or for conspiracy to commit perjury.
22. From all this, Mr Jones sensibly accepted that the conduct of the appellant went further than an agreement to give a false account to a court because it included an agreement to deceive those who investigated the original offence, and other authorities, including the Home Secretary and those responsible at the Home Office for advising the Home Secretary. Nevertheless, he argued that all these matters helped to give an indication of the appropriate parameters in which the sentencing decision had to be reached.
23. The difficulty with Mr Jones' careful submission is readily identified and can be briefly analysed. The appellants were charged with, and convicted of, conspiracy to pervert the course of public justice. Even if they might have been charged with conspiracy to defraud, we have not the slightest doubt that on the facts of the instant case the conspiracy with which they were charged, and of which they were ultimately convicted, was entirely justified. It was the offence which they had committed. It was the charge which most appropriately fitted the facts and the overall criminality that was involved. For that offence, properly brought, the maximum sentence is life imprisonment. That is entirely certain. Parliament has not chosen to change this maximum sentence. The court therefore had to fix a sentence to reflect the criminality involved in this offence in the context of a maximum sentence of life imprisonment.
24. It assessing these matters it is worth emphasising that the criminality here was not merely the sophisticated conspiracy by professional criminals which led investigating officers and, on the basis of their assessment, the sentencing judge and ultimately the Secretary of State, to believe that a major discount from the appropriate sentence had been earned by the appellants. The criminality went much further. The conspiracy, run by the appellants from prison, depended on accomplices who were outside the prison to obtain possession of and then travel with firearms to different locations to deposit them where the police would eventually find them on the basis of the information fed to the police by the appellants (who will have been fed the information to give to the police by the accomplices who had deposited the guns). The handling of such a weapon on each occasion was in itself a serious offence which merited a significant sentence of imprisonment. In short, the criminality on which the achievement of the objective of the conspiracy depended was itself extremely serious, independent of the perversion of the course of justice. The conspiracy offence alleged against the appellants therefore encapsulated very grave criminality indeed.
25. We have considered Mr Jones' submission that the effect of the sentence of 22 years' imprisonment being ordered to run consecutively to the sentence imposed in 2001, with the appellant Haase now aged 62, meant that the overall sentence was one of 35 years' imprisonment. If that is so, and given that the custodial element of the sentence of thirteen years' imprisonment imposed in 2001 had nearly come to an end, the overall sentence reflects the reality that the appellants had got away with their crimes for a very long time.
26. The starting point in a case like this is to ensure that a defendant will be wholly deprived of the benefit of his crime. In this case an eighteen year sentence was replaced by a five year sentence. The benefit had been thirteen years. To that starting point for their involvement the accomplices, who did not benefit in the slightest from the reduction in the appellants' sentences (save indirectly in the case of Haase's wife) and who were the foot soldiers in this conspiracy, were sentenced to five, five and four years' imprisonment respectively. On appeal those sentences were not, and for the reasons given in the judgment could not, be reduced. That part of their sentence which reflected the conspiracy was rightly fixed at a high level. For the appellants, who were the leaders of the conspiracy, it was inevitable that higher sentences should be imposed than the sentences imposed on their foot soldier accomplices. Indeed, it is worth reflecting that if the judge had not had the total sentence in mind, he might very well have taken the view that on this part of the case (ignoring the advantage gained by the appellants in the sentencing decision in 1995) and reflecting on this part of their criminality, the sentences might very well have been longer. The difference between nine years on Haase and less on Bennett, contrasted with the sentences of five, five and four years on Knowles, Deborah Haase and Thompson respectively, would otherwise have been strange and insufficient.
27. In the end the sentences reflect depriving the appellants of the benefit which they had secured by their conduct, a further sentence sufficient to reflect their criminality in the organisation and the running of the conspiracy, and to deter others from becoming involved in conspiracies of this kind. In our judgment, notwithstanding the careful submission made by Mr Jones, the sentences on the two appellants are not open to criticism. They are certainly not open to the criticism that in the circumstances they are excessive.
28. Accordingly, the appeal of Haase will be dismissed, and the application by Bennett to have his abandonment treated as a nullity will be refused. | ```yaml
citation: '[2011] EWCA Crim 3111'
date: '2011-12-13'
judges:
- MR JUSTICE SWEENEY
- MR JUSTICE SINGH
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2014] EWCA Crim 804
Case No:
201302913 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HHJ Ford QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/05/2014
Before:
LORD JUSTICE BEATSON
MR JUSTICE HOLROYDE
and
MRS JUSTICE CARR
- - - - - - - - - - - - - - - - - - - - -
Between:
Louise Jane Cox
Appellant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Christopher Quinlan QC
(instructed by
Richard Griffiths and Co
) for the
Appellant
Michael Fitton QC
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date: 8 April 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Beatson:
1.
At the conclusion of the hearing of this appeal on 8 April 2014 we informed the parties that the appeal would be dismissed for reasons to be given in a judgment that would be handed down. We now give that judgment.
2.
On 16 May 2013 in the Crown Court at Bristol after a trial before His Honour Judge Ford QC, the Hon. Recorder of Bristol, and a jury, the appellant, now aged 49, was convicted of the murder of Ian Graham and sentenced to life imprisonment with a minimum term of 14 years imprisonment. She appeals against her conviction by leave of the single judge.
3.
The sole issue before this court is whether the learned judge erred in admitting evidence of her bad character in the form of: a 1992 conviction (on a guilty plea) for inflicting grievous bodily harm contrary to
section 20 of the Offences Against the Person Act 1861
; a June 2002 conviction (on a guilty plea) for using threatening words or behaviour and possessing an offensive weapon contrary, respectively, to
section 4 of the Public Order Act 1986
and
section 1 of the Prevention of Crime Act 1953
; and the circumstances under which the appellant was (by consent) bound over in 2010 for an alleged breach of the peace.
4.
It is submitted by Mr Quinlan QC on behalf of the appellant that this evidence did not fall within gateway (d) of
section 101(1) of the Criminal Justice Act 2003
and, in any event, should have been excluded pursuant to
section 101(3)
because its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The facts
5.
The appellant and the deceased, Ian Graham, who was aged 51, were both heavy drinkers. They formed a relationship in the middle of 2012. It was difficult, stormy and complex. They drank heavily together, she stayed at the deceased’s bedsit flat occasionally, and they had sexual contact and exchanged text messages which were sometimes abusive and very unpleasant. Some of the texts were affectionate, but others were aggressive or what the judge described as “playing mind-games”.
6.
On the evening of Monday 19 November and in the early hours of Tuesday 20 November 2012, the deceased, the appellant and Ian Hungerford, a friend of the deceased, had been eating, drinking and watching television in the deceased’s bedsit. In the early hours of the morning of Tuesday 20 November 2012 an ambulance crew attended the deceased’s bedsit in response to a telephone call by the appellant and Ian Hungerford to the emergency services. Police also attended. The deceased was found on a bed covered in blood. There was extensive blood staining on the bed and nearby walls and floor. The deceased was transferred to hospital by ambulance, and was pronounced dead at 5:27am. It was common ground that the appellant was responsible for the stabbing.
7.
It is clear that considerable quantities of alcohol had been consumed by all three. The evidence of the pathologist was that the deceased’s blood alcohol level was almost four times the drink-driving limit. A urine sample taken from the appellant seven hours after the stabbing, at 11:40am on 20 November, was found to contain 191mgs of alcohol per 100mls of urine. The doctor said that a back calculation was not possible but it was likely that the level would have been higher at the time of the stabbing.
8.
At the trial, the evidence of Mr Beaumont, a forensic scientist, based on the location of the arterial blood stains and other blood staining, was that the deceased had been stabbed in the bedroom area at the far side of the bedsit, furthest away from the entrance door. To get to it from the entrance door, one had to walk past a kitchen area and a living area with a bed base and a table. The trail of blood showed that the deceased walked from the bedroom area towards the living area and the bed base closer to the entrance door. There was heavy staining on the table and on the wall behind the table. The appellant’s clothing was examined and Mr Beaumont’s evidence was that her top was bloodstained in a manner that was, in his opinion, consistent with her having stabbed the deceased standing upright and close to him when blood was projected from his left side onto her clothing.
9.
By the time the ambulance crew and the police arrived the appellant had left the bedsit. Ian Hungerford had told her to leave. One of the officers who went to search for her found her at the railway station with two plastic bags and a black drawstring bag. One of the officers who remained in the bedsit found a knife with blood on its blade on a work surface in the kitchen area.
10.
The defence case was that the appellant had acted in lawful self-defence after the deceased attacked her, gripped her tightly round the neck and held her against a wall. She said that she somehow broke loose. She could have left the flat altogether at that stage. But instead she stopped at the kitchen area. She picked up a knife from the kitchen drawer and returned to the bedroom area holding it down by her right side with the blade downwards. By the time of trial it was her case that she had returned because she did not want to leave without her handbag which was in the bedroom area. She told the deceased to move out of the way. She was scared. He laughed and said “you’re not fucking having your bag” (summing up 28D – G). She tried to barge past him holding the knife by her side, but he slammed her against the wall and again took her by the neck. She thought he was also holding her arm. She stated that the grip around her neck was hard and her head kept going blank and she thought she was going to die. She tried to reach her bag but was unsuccessful and raised the knife and stabbed him. She thought she was being strangled to death and he would stop if she used the knife. She had no recollection of stabbing him for a second time. Her case was thus that, thinking she was going to be strangled to death, she used the knife in self-defence.
11.
The prosecution case was that the appellant had acted in anger or was motivated by a desire for revenge and intended to kill or cause really serious bodily harm. Its case was that if, as the appellant maintained, she had been attacked in the bedroom area and held by the deceased round the neck but somehow got away, she went to the kitchen area, which was on the way to the entrance hall and door. But she then chose to take a knife from a kitchen drawer, and chose to go back to the bedroom area where she faced the deceased, raised the knife which she had been holding with the blade coming from the bottom of her fist, and stabbed him.
12.
It is common ground that the trial judge accurately summarised the issues in this case at the beginning of his summing-up (4B – C) as “why did she get a knife?; why did she take the knife across the room?; and why did she use it?” Although it was not part of the defence case, the judge also left to the jury the partial defence of loss of control: summing-up, 47C – 48B.
13.
The court heard evidence from the officers who attended, and from Ian Hungerford. His evidence was that at some stage he had gone to the bathroom to telephone his girlfriend and when he returned he saw the deceased in a crouched position, his neck pulsing with blood. The appellant was behind the deceased. Mr Hungerford said he had heard nothing of the incident and had not been aware of any argument between the deceased and the appellant that night. The pathologist’s evidence was that only moderate force would have been necessary to cause the injuries to the deceased.
14.
Evidence was also given of bruising to the appellant’s cheek, her chin, the right side of her neck, her left elbow, and fingertip bruises to her left wrist. She attributed a bruise on her arm and that on her neck to the deceased, and told a crime scene investigator who examined her that the latter had been caused when he had picked her up by the throat and neck. The pathologist said that poor quality photographs of red mottled bruises were consistent with the appellant’s neck having been grabbed. The bruising to her arms could have been the result of being grabbed.
15.
PC Manning, who found the appellant at the railway station, said that she talked constantly while being driven to the police station. He later wrote down the essence of what she had said, which included “is he dead? Yeah, I hope he dies of his injuries…I wanted to do him for murder, not fucking attempted murder…I wanted to murder the bloke…”, “…when I stuck that knife in that bloke, man, man loved every minute of it”, and “I hope he dies. Is he dead? ... I wanted to murder the bloke”: see summing-up 37 – 38. She, however, also asked why the officer was writing it down and stated that she had not meant what she said and that she hoped he didn’t die: see summing-up 39A. The jury was shown CCTV recordings of the appellant during the booking-in procedure at the police station and later while in the cells. When in the custody area, the appellant had said “He stalked me and tonight I just lost the plot. He started on me. He whacked me one and I pulled out and stabbed him …”. The jury also had a schedule setting out the text of the text messages the deceased and the appellant sent to each other between 31 October and the night of the fatal stabbing.
16.
The appellant’s first interview was at 23:22 on 20 November. She did not answer questions in this, but gave her account by means of two prepared statements signed at 23:07 on 20 November and 13:23 on 21 November. In the first of these she described her relationship with the deceased and gave an account of the events of the night of 19 November and the early hours of 20 November which was broadly consistent with the account given in her defence statement, a document that was not placed before the jury. In summary, she accepted stabbing the deceased but asserted that she did so in self-defence. She stated that when she ran to the kitchen she “grabbed a knife from the drawer to defend myself as I was sure he was going to hurt me again. I believed he was going to come after me and strangle me again and I thought I might die. Within seconds he was in my face again. I am not sure precisely where this was”. In her second prepared statement the appellant asserted that the deceased had sexually assaulted her on two occasions, the second of which was just hours before the fatal incident. As a result, another doctor examined her on 21 November at 9:18pm. He noted a bruise on her right breast and one on her right upper thigh, but after a vaginal and anal examination, he found no injury to confirm or rebut her account of sexual assault.
17.
The account the appellant gave at trial differed in a number of respects from that given in the prepared statements. In particular, she did not mention in the prepared statements that before she stabbed the deceased she had been trying to retrieve her bags which were close to the bedside drawers. She also did not say that the deceased had gripped her around the neck at the time that she stabbed him: see summing-up 18A – C. Her failure to mention these facts in her statements was the subject of a section 34 “adverse inference” direction by the judge.
18.
The only other evidence called in support of the appellant concerned the deceased’s bad character. His criminal record was adduced by agreement. The full particulars behind his last conviction, for assault upon a former partner, DP, was proved by the defence reading as agreed evidence the relevant parts of DP’s witness statements and calling DP’s sister. DP’s evidence was of serious verbal abuse and physical violence to her over a period. It ended after the deceased attempted to force her to cut her wrists and she telephoned her sister who attended the flat and found DP on her hands and knees, her face black and blue with cuts to her neck and hands. She was taken to hospital.
Admission of the evidence of the appellant’s bad character
19.
The prosecution’s application to adduce evidence of the appellant’s bad character had two elements. One, pursuant to
section 101(1)(g)
was on the basis that the appellant had made an attack on the character of the deceased. It was agreed in principle subject to a ruling as to which convictions were to be admitted. The second element was the application pursuant to
section 101(1)(d)
of
the 2003 Act
to adduce evidence of the circumstances behind the two convictions and the binding-over to which we have referred.
20.
The prosecution submitted that these incidents showed that three times in the past 21 years the appellant, when in dispute with another, had used, produced or sought a knife for an unlawful purpose. The prosecution submitted that this evidence had a real capacity to cast light on her account in relation to the fatal events and the issues at the heart of the case. As to the
section 20
offence, the judge proceeded on the basis of the account of it given by the appellant in interview, which in these proceedings she accepted was truthful. Her account was that she had a heated argument with a friend at the friend’s house after they had been out drinking, and during the argument the friend attacked and punched her. She then returned home and shortly afterwards the friend banged repeatedly on her door. The appellant came to the door with a knife in her hand. She said she did not remember getting the knife, which had come from the kitchen, but that she had it to protect herself. When she answered the door, the friend grabbed her by the throat and pushed her back. She did not remember what then happened but the friend sustained a number of wounds which the appellant accepted she had inflicted. She accepted she used the knife repeatedly and caused the injuries, but that she had not meant to do it and that her mind had gone blank: see ruling, volume 1, page 5A – D.
21.
The 2002 incident which led to the conviction for using threatening words and behaviour and possessing an offensive weapon occurred at a public house where the appellant was part of a group which was behaving in a disorderly way. When the landlord asked them to leave the appellant produced a kitchen knife and said “I’m going to stab you, you Paki”. The landlord restrained her using a bar stool to push her to the floor. After the police arrived, the appellant said “I’ll come back and kill you, you Paki bastard”. A witness said he saw the appellant with a knife in her hand. She was loud and aggressive and holding a knife at low level. The knife was not used in a threatening manner but was present. The appellant said she had taken a vegetable knife with her when she went out because she was scared but she was not sure of the cause of her fear. She remembered her first drink but thereafter her mind went blank and she asserted that she had no memory of what occurred.
22.
The circumstances of the 2010 incident were that police were called to the scene of a dispute between the appellant and a neighbour of hers. The appellant told the police that the neighbour had shouted abuse at her and said he was going to stab her and slit her throat. The officer said that the appellant looked for a knife, saying “I’ll stab him, I will cut his throat, believe me”. In the opinion of the officer, the appellant was intoxicated. The officer found a vegetable knife in the appellant’s bed.
23.
Mr Quinlan submitted that these three matters did not establish a relevant propensity within
section 101(1)(d)
and
103
of the
Criminal Justice Act 2003
. This was because neither individually nor cumulatively did the matters make it more likely that the appellant was guilty of murdering the deceased and that, if it did, its admission would have such an adverse effect on the fairness of the trial that the court, pursuant to
section 101(3)
ought not to admit it.
24.
The judge’s ruling admitting the evidence was made after most of the prosecution evidence had been heard by the jury. Its material parts are:
“…The matters upon which the prosecution seeks to rely are relevant to important matters in issue between the defendant and the prosecution. The matters have the capacity to demonstrate that when in drink the defendant has a tendency to produce, or seek to produce, a knife for unlawful purposes when she is in dispute with others. The first conviction demonstrates the use of a kitchen knife when in drink and force used in excess of reasonable self-defence.
…One of the important matters in issue was whether the defendant was acting in lawful self-defence [when she stabbed Ian Graham with a kitchen knife] or whether she used grossly disproportionate in stabbing [him].
In the case of the second conviction the defendant, who had been drinking, in the course of a dispute with Mr Kabrow , produced a knife and threatened to stab him. The incident behind the binding-over demonstrates that on a third occasion when in drink and in dispute with another the defendant looked for a knife and expressed an intention to use it offensively to stab her neighbour.
All these matters have the capacity to assist with the relevant issue of whether, when the defendant collected the knife before the fatal stabbing, she had a defensive or offensive intent. Further the fact, if the jury so find, that the defendant has acted in these ways in the past is probative of the issue whether when she inflicted the fatal wound she had lost her self-control, a defence which the defence will submit should be left to the jury. The jury would be entitled to evaluate any claim of loss of control in the knowledge that the defendant had intentionally used or produced or attempted to produce knives during disputes on three previous occasions.
…
The fact that there are three previous incidents spread over a significant period persuades me that the passage of time does not render unfair the admission of the evidence of these incidents, nor does the fact that the first conviction is spent. Had the first matter stood on its own, I would have reached a different conclusion.”
25.
As to excluding the evidence pursuant to
section 101(3)
, the judge rejected the submission that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. He stated that he was confident that a correctly directed jury would use the bad character evidence legitimately in its consideration of the critical issues.
26.
The judge considered whether there would be injustice because there would be significant satellite litigation diverting attention from the issues in the trial because there was no agreement as to what had happened in the second and third incidents, but concluded that there would not. In relation to the second incident, while there were some differences in the accounts of the publican and the witness, both agreed that the appellant produced a knife and was behaving aggressively. The particulars of the facts behind this conviction put before the jury were confined to agreed facts, and care was taken to exclude the references to “Paki”. In the case of the incident leading to the binding-over, the account of the police officer was not disputed.
27.
The judge’s direction to the jury on the defendant’s bad character reflected his ruling. He stated (summing up 15D – G):
“You are entitled to have regard to the defendant’s bad character as revealed by her previous convictions when deciding whether her description of the attack upon her by Ian Graham is truthful. You know that she pleaded guilty to those matters. Whether and to what extent her bad character assists you in the process is for you to judge. There is a second way in which two of the defendant’s convictions: inflicting grievous bodily harm on 9 November 1992; and possession of an [offensive] weapon, threatening behaviour on 20 June 2001; and the circumstances behind her being bound over on 4 June 2012 may assist you. The defendant’s case is that Ian Graham was the aggressor and that she acted in self-defence. In deciding whether her account is or may be true, you are entitled to have regard to her past behaviour in relation to these three matters.”
After summarising the three incidents and the prosecution’s submission that they suggested that, when drinking and/or when angry, she had a propensity to use or threaten unlawful violence with knives which made it more likely that she was acting aggressively rather than defensively when she stabbed Ian Graham, the judge directed them (summing up 17C – D) first to consider whether the evidence established such a propensity. He continued “if you are sure that it does, then you may have regard to it when deciding whether the defendant attacked Ian Graham unlawfully and whether she was in control of her mental faculties when she did so.” He stated that the defence asked that they took into account the dates of the earlier matter, and the fact that in relation to the latter two incidents the appellant did not stab anyone with the knife, and that because she pleaded guilty to the first two matters and acknowledged that she should be bound over, no relevant propensity was established and, even if it was, they should pay no regard to it.
28.
The judge made it clear that only if the jury were sure that the evidence a propensity might they have regard to it, and stated that whether it provided assistance to them, and if so its importance, was for them. He also directed them (summing up 17F) that the bad character evidence was only part of the evidence in the case. It alone could not prove guilt, and if the jury concluded that the appellant “when angry, has a propensity to use knives unlawfully and aggressively against or towards others, that did not of itself mean that she acted unlawfully in stabbing Ian Graham” and even if she did act unlawfully, such propensity did not establish that she intended to kill or cause really serious harm. He directed them that, in order to decide this, they must assess all the evidence concerning the events before, during and after the stabbing.
Loss of control
29.
Although the appellant did not expressly rely on the partial defence of loss of control but on the defence of self defence, the judge left the issue of loss of self control for the consideration of the jury and directed them on it. He did so because of the evidence before the jury. When cross-examined by the prosecution on her statement that she had lost the plot (see [15] above), he put it to her that she had not lost her self control, but had deliberately turned back to the bedroom area. In re-examination she was asked whether she felt in control at the moment the deceased was holding her by the throat, and said “No. I was scared. I was panicking”. The judge considered that, in the light of these matters, he had to leave the issue to them. Mr Fitton QC stated that the judge thought that, in the light of the evidence, without a direction on loss of self-control, the jury might be confused.
30.
There is no criticism of the judge’s direction on loss of control: see summing up 47C – G. He had earlier (summing up 12C-D) stated that the appellant “would have lost her self control if her ability to restrain herself was so overwhelmed by emotion that she was unable to control the impulse to stab Ian Graham with a knife”. He directed them as to the need for a qualifying trigger for the loss of self-control. He directed them (summing up 12H – 13B) that in this case there were two possible qualifying triggers, either of which would suffice. The first was that her loss of self control was attributable to her fear of serious violence from Ian Graham. The second was that her loss of self control “was attributable to a thing said or done and/or said which (a) constituted circumstances of an extremely grave character; and (b) caused [her] to have a justifiable sense of being seriously wronged”. He then set out the circumstances which, if established in evidence, were of potential relevance in considering whether one or more qualifying triggers were present. The circumstances were Ian Graham’s attacking the appellant and gripping her tightly around the neck, his actions or words, including his sexually assaulting her, making unflattering comments and comparisons, and refusing to let her have access to her bag.
Analysis
31.
Mr Quinlan’s first submission was that the judge erred in concluding that the circumstances of the two convictions and the incident leading to the binding-over were capable of establishing a tendency on the part of the appellant, a propensity, to produce or seek to produce a knife for unlawful purposes. Secondly, he submitted that, if they were capable of establishing a propensity, the propensity was not relevant, and in any event did not assist on the appellant’s state of mind at the time she picked the knife up or when she used it, which were the crucial issues in this case. He also submitted that the evidence ought not to have been admitted because of its effect on the fairness of the proceedings. He did not suggest that, if the evidence was properly admissible, the judge’s bad character direction (at summing up 15A -17G) was open to criticism.
32.
In relation to the 1992 conviction, Mr Quinlan relied, in particular, on two matters. First, it pre-dated the fatal incident by 20 years and was a spent conviction. Secondly, it could not be probative of an offensive intent in the present case because it was accepted that in 1992 the appellant was attacked and used the knife in that context, namely to defend herself.
33.
Mr Quinlan submitted the 2002 incident was also an old incident, ten years before the fatal incident. Moreover, the appellant did not use the knife to inflict injury and there was no evidence that she attempted to do so. There was therefore no question as to whether, on that occasion, the knife was deployed or used in excess of reasonable self-defence.
34.
As far as the 2010 binding-over is concerned, Mr Quinlan submitted that the appellant never had a knife in her possession. It therefore followed that there was no unlawful use of a knife and there was no question of it being used in excess of reasonable self-defence.
35.
At the heart of Mr Quinlan’s submissions is the fact that it was not in issue at the appellant’s trial that she used the knife. He maintained that the earlier convictions and the binding-over therefore do not assist on the question of whether she acted with offensive intent when she picked up the knife from the kitchen, nor are they probative of her intent. He also submitted they are not capable of rebutting a defence of loss of control because the circumstances of the incidents leading to the convictions showed behaviour by a person who had lost control.
36.
On the effect of admitting the evidence on the fairness of the proceedings, Mr Quinlan argued there was a particular adverse effect on fairness in respect of the matter that was twenty years old, where the appellant had admitted that the use of the knife was in excessive self-defence. He also submitted that these matters did not assist the prosecution on the issue of the appellant’s loss of control because her evidence was that she “lost her temper” on those occasions and the fact that she did does not undermine any claim of loss of control in this case.
37.
The appellant’s convictions were clearly admissible under
section 101(1)(g)
in view of her extensive attack on the character of the deceased. But they were also admitted as evidence capable of demonstrating that she has a tendency to produce or to seek to produce a knife for unlawful purposes when she is in dispute with others and the direction on bad character dealt with this aspect of the evidence. Mr Quinlan submitted that, because there is no dispute that the appellant picked up and used the knife, the relevance of the three incidents is as to her intent, and that, because there is no dispute that she picked up the knife, they do not assist on the question of whether she acted with offensive intent.
38.
We reject Mr Quinlan’s submission that these convictions are not relevant to an important matter in issue between the appellant and the prosecution. We consider that he has formulated the issue too narrowly. Bearing in mind what happened in the bedsit on the fatal night, we consider that the important matters in issue between the defence and the prosecution included whether the appellant lost her temper in the course of a row, whether she acted in retaliation for a wrong done to her, and the reason she got a knife, took it across the room, and used it. We consider that the three previous incidents were highly relevant to the jury when considering the appellant’s account of why, having got away from the deceased, she turned to go back to him with the knife rather than leaving the bedsit.
39.
The first of the incidents, although some twenty years ago, involved her, when in drink, picking up a kitchen knife before she opened the door and then using it with force beyond what was reasonable self-defence. The second incident also involved the production of a knife when in drink and threats to stab the publican. She did not have an opportunity to use the knife because the publican used a bar stool to push her to the floor. The evidence of this incident is capable of demonstrating an intention on her part to use a knife aggressively. The third incident, although not involving the use of a knife because she was stopped by the police, is capable of being evidence showing an intent to find and use a knife aggressively against her neighbour.
40.
The three incidents involving the use of a knife or the desired use of a knife cumulatively amount to evidence from which it was open to the jury to conclude, as the judge directed (summing up 17F), that the appellant, “when angry has a propensity to use knives unlawfully and aggressively against or towards others”. They show she was quick to take up a knife when angered or threatened. The evidence was thus relevant to what it is common ground are the three issues in this case, which (see [10] above) were identified by the judge.
41.
Mr Fitton stated that, in the context of the case where the appellant did not seek to advance the “loss of plot” explanation, the loss of control direction read oddly. The judge’s decision to leave loss of control to the jury cannot be criticised. Whether or not Mr Fitton’s observation that, in the context of the facts and the appellant’s case, the direction read oddly is correct, we accept his submission that it mattered little.
42.
We also reject the submission that this evidence should have been excluded pursuant to
section 101(3)
. The condition for the duty of the court not to admit evidence under
section 101(1)(d)
in sub-section (3) is that it appear to the court that the admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In this case, in the course of making his decision, the judge considered and evaluated the relevant factors, including the age of the first incident, and whether there was a danger of the jury being diverted from the issues in the trial. He was fully entitled to come to the conclusion that he did. And on any view it cannot be said that he exercised his discretion under
section 101(3)
in a manner that was outside the range open to a reasonable decision-maker .
43.
On the facts of this case, it is, moreover, possible to say more than this. The evidence of the three incidents here is not such as would divert the attention of the court into satellite issues because the essential factual matters in those incidents were, for the reasons given by the judge, not in dispute. Secondly, although the third incident, which led to the acceptance of a caution, was clearly far less serious than the first two incidents, it cannot sensibly be suggested that the incidents overall are trivial. Moreover, in the light of all the other evidence in the case which we have summarised and refer to again below, it cannot be suggested, and was not suggested, that the evidence about the three incidents was being deployed to bolster an otherwise weak case (see
Hanson
[2005] EWCA Crim 824
at [4]).
44.
There was, in any event, powerful evidence against the appellant which means that, in our view, the verdict of the jury is entirely safe. We refer in particular to the significant remarks made by the appellant as to her state of mind to the police officer when he arrested and in the police station: see the summary at [13] above. Her account in her prepared statement that when she grabbed the knife she was sure the deceased was going to come after her again and within seconds he was “in her face” differed from her account at trial, where she said she took the knife over to the bedroom area to “scare” the deceased, but had not showed it to him: see [10] above. In her statements she said she wanted to leave the flat and go home, but did not mention making any attempt to reach her handbag before the first occasion that she maintained the deceased grabbed her neck: see [16] – [17] above.
45.
It was for these reasons that we considered that the judge had not erred in his approach to the admissibility and admission of the three convictions and their circumstances, and that the appeal against conviction failed. | ```yaml
citation: '[2014] EWCA Crim 804'
date: '2014-05-01'
judges:
- LORD JUSTICE BEATSON
- MRS JUSTICE CARR
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 2008/02442/A5 and 2008/02616/A5
Neutral Citation Number:
[2008] EWCA Crim 1249
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 23rd May 2008
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE JACK
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
-v-
M
KM
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Palantype Notes of
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr H Barton
appeared on behalf of the
Applicant M
Mr J Lasker
appeared on behalf of the
Applicant KM
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE JACK: On 4th March 2008 at the Crown Court at Burnley, the applicants, M and KM, each pleaded guilty to an offence of assault contrary to
section 47
of
the Offences Against the Person Act 1861
. KM also pleaded guilty to an offence of theft. On 30th April 2008 M was sentenced to a 12-month detention and training order, and KM was sentenced to ten months' detention in a young offender institution, with three months concurrent on the theft. Their applications for leave to appeal against sentence have been referred to the court by the Registrar. We grant them leave.
2.
The offences were committed on a 16-year-old girl named A. Late on 2nd November 2007, while she was waiting for an taxi to take her home after a night out, A was abused verbally by M and then attacked by her. She was punched a number of time, fell to the pavement and was punched some more and kicked. KM joined in the punching.
3.
Photographs of A show that she had a number of small cuts and scratches to her face, and bruising and swelling. She also suffered was headaches. She was put through a very unpleasant experience, which she will not easily put behind her, but no serious injury was caused. She had dropped her handbag and KM took various items from it, including cash, a mobile phone and a valued photograph of A's deceased mother, before the two girls made off.
4.
M was born on 29th March 1993, and so was 14 at the time of the attack and was still just 14 when she entered her plea. On 5th February 2007 she had been made subject to a 4-month referral order for an offence of battery. On 10th December 2007 and on 28th January 2008, each after the present offence, she had received two reparation orders for disorderly conduct. In addition, on 8th July 2004 she had been remanded for an offence of battery and likewise on 5th June 2006. So when she came up for sentence she had committed six offences, with three offences of battery prior to the offence for which she was being sentenced.
5.
KM was born on 27th March 1988. She was 19 at the time of the offences. On 20th January 2004 she had received an absolute discharge for an offence of criminal damage. On 21st April 2004 a referral order of three months had been made in respect of a further offence of criminal damage. That order was extended for three months on 13th September 2004, by reason of offences of battery and criminal damage. She had been warned for battery on 7th July 2003, and reprimanded for a non-dwelling house burglary and handling on 26th August 2003.
6.
The pre-sentence report on M recommended a 12-month supervision order with a 3-month curfew order. It stated that the risk of harm from the offending which she posed could be reduced by her participating in a structured programme of supervision, with the aim of addressing her misuse of alcohol and developing her thinking skills. It said that she regretted her involvement in the offences, but sought to see herself as the victim and to paint A as the aggressor.
7.
The report on KM recommended a community order with a requirement of supervision. It said her consumption of alcohol was of concern and was the reason behind her offending. In her case she had expressed regret for her actions and had shown some empathy with her victim.
8.
In passing sentence the Recorder first dealt at some length with the facts. He referred to the guideline on assault. He stated that A was a vulnerable victim because of her age, and was deliberately targeted as such. We are not clear what he meant by "targeted as such", for M was 14 and the attack was not premeditated or planned. The Recorder pointed to there being two assailants and that the attack was sustained, notwithstanding the pleas of A that it stop. It involved kicks to the head by M. There was then the theft by KM. The Recorder stated that M should be entitled to credit for plea, not at the earliest stage, but at the plea and case management hearing when she had offered to plead to
section 47
. KM was only entitled to credit for a plea entered on the day of trial. The Recorder referred to the difficulties both girls had had in being excluded from mainstream schools, and in KM's case her being taken into care and, as was said in the pre-sentence report, then going off the rails. KM had, however, kept out of trouble since 2004 and now had a young child.
9.
The Recorder held that he was not obliged to treat either as a dangerous offender. He held that the assault passed the custody threshold. He said that, having regard to the guidelines, in M's case had she been an adult a sentence of 30 months would have been appropriate, with a reduction of 25 per cent for plea. He said that given her age, the appropriate starting point was a detention and training order of 18 months and he arrived at 12 months after allowance for plea.
10.
The Recorder sentenced KM on the basis that she had joined in and sustained the attack and stolen the bag. He concluded the appropriate sentence would have been 12 months after a trial, and so made an order for detention of ten months, with three months to run concurrently for the theft. He treated the theft as an aggravating feature of the assault.
11.
In sentencing M, the Recorder did not state that he found her to be a persistent offender, which was a requirement before he could make a detention and training order under
section 100
of the
Powers of Criminal Courts (Sentencing) Act 2000
. We are satisfied, however, that he was entitled to make that finding. We are told that he had not raised this with counsel prior to sentencing. It would have been appropriate for him to do so.
12.
It is submitted to us on behalf of M that a custodial sentence was manifestly excessive, bearing in mind in particular her age. We do not agree. We consider that a detention and training order was appropriate in this case, bearing in mind her previous offences and this sustained attack involving kicking. However, we think that by reason of her age a shorter period was appropriate. There will be substituted an order of six months.
13.
We also consider that the order of ten months on KM was longer than appropriate. It is conceded in her case that custody cannot itself be criticised. We think that that concession was rightly made. She was substantially older. She played the minor role in the assault and she committed the theft. Her plea was late. Balancing those factors, in her case we substitute an order of six months' detention on the assault. The concurrent sentence of three months on the theft will remain.
14.
THE ASSOCIATE: By reason of M's age, would your Lordships be minded to make reporting restrictions?
15.
LORD JUSTICE HOOPER: The judge refused to order the disclosure of her name?
16.
MR BARTON: Yes.
17.
LORD JUSTICE HOOPER: He was going to, and then you persuaded him not to.
18.
MR BARTON: That is right.
19.
LORD JUSTICE HOOPER: So we continue the order. Her name is not to be published.
20.
MR BARTON: Thank you.
______________________________ | ```yaml
citation: '[2008] EWCA Crim 1249'
date: '2008-05-23'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE JACK
- MR JUSTICE GRIFFITH WILLIAMS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 2003/6248/C3 & 2004/1376/C3
Neutral Citation Number:
[2004] EWCA Crim 2715
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 27 October 2004
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE GIBBS
MR JUSTICE STANLEY BURNTON
- - - - - - -
R E G I N A
-v-
LESLIE JAMES MOULDON
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR A BODNAR
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE STANLEY BURNTON: On 6th December 2002 at Newcastle Crown Court, before His Honour Judge Whitburn and a jury, the applicant was convicted by a majority of a single count of conspiracy to supply a class A controlled drug (MDMA) to another in contravention of
section 4(1)
of the
Misuse of Drugs Act 1971
. On 24th January 2003 before the same judge he was sentenced to 16 years' imprisonment.
2.
On 30th January 2004, before the same judge, a confiscation order was made against him under
section 2
of the
Drug Trafficking Act 1994
in the sum of £667,000 to be paid within six months, with three years' imprisonment consecutive in default. On 23rd February the confiscation order was revised up to the sum of £750,000.
3.
He applies for leave to renew his application for leave to appeal against conviction and sentence. He was not represented for that purpose before us. He further seeks leave to appeal the confiscation order, the Registrar having referred this application to the full court. On that application he was represented by counsel, Mr Bodnar.
4.
The brief facts of the case were that in March 2001 the Northumbria Police mounted an undercover operation to target the suppliers of illegal drugs. A shop known as Ace Hardware Store was used as a front. The store was fitted with covert audio and video recording equipment and staffed by undercover police officers who let it be known that they were open to offers to purchase drugs. The police also had access to a flat in nearby Middle Street for some of the transactions.
5.
Undercover officers made contact with Edward Wilson from whom they purchased quantities of drugs on various occasions beginning in October 2001. An undercover officer referred to as "Omar" was taken to Wilson's flat by Knowles on 17th October 2001 where he purchased amphetamines and discussed with Wilson the purchase of 5,000 ecstasy tablets. Wilson said he needed to "speak to (his) man".
6.
On the following day, two calls were made from a mobile telephone later recovered from Wilson's flat to a mobile telephone subsequently seized by the police from the applicant's home at the time of his arrest.
7.
On 19th October, Wilson delivered 1,000 ecstasy tablets to an undercover officer called "Sohail". Sohail later contacted Wilson to say he could take another 4,000 tablets. Wilson said he would "Ring (his) man and see what he says". Less than 30 minutes later a call was placed from the mobile telephone later found in Wilson's home to the mobile telephone later found at the applicant's home address. Two minutes after that call Wilson called Sohail to confirm the deal. Wilson supplied 5,000 tablets to Sohail later that day. He was driven to the meeting point by Wood.
8.
Over the following week there were discussions with Sohail and Wilson as to the supply of a further 5,000 tablets. Wilson supplied these on 7th November at a cost of £6,000.
9.
Thereafter undercover officers entered discussions with Wilson for the supply of 15,000 ecstasy tablets. There were a number of telephone calls during this period between the mobile phone later found at Wilson's address and that later found at the applicant's address. During a discussion with Sohail on 6th December, in which Sohail expressed concern as to whether the quantity he wanted was available, Wilson made a call to this applicant's telephone. That telephone call was not in dispute. In the short call he said: "Kid is Edward still there? He is, that's all I wanted to know, I'll be in touch", following which he confirmed that 15,000 tablets would be available for purchase.
10.
On 18th December, Wilson suggested that the meeting place for the transaction might be at his mate's pub, which was more like a hotel, although in the event this was not the arrangement. That was of some relevance as the applicant owned a pub known as the Ship Inn and it was suggested by the prosecution that that was the venue Wilson was referring to.
11.
On 19th December Wilson arrived at the hardware store carrying a large black holdall which contained three heat sealed packs each containing around 10,000 ecstasy tablets, with a street value of around £100,000. The officers paid £27,000 for the drugs. As he left the store, a call was made from a mobile later found at his home to the mobile later found at the applicant's home. An Audi motorcar seen parked nearby was registered to the applicant. CCTV footage revealed an Audi motorcar leaving the parking area as Wilson walked away.
12.
Later the same day Wilson, driven by Wood, met undercover officers and supplied them with amphetamine and ecstasy.
13.
Following this applicant's arrest, police found 30 ecstasy tablets bearing the same logo as that on the tablets supplied by Wilson to officers on 19th December in a kitchen drawer at the applicant's home address. A mobile phone was also seized. A large black holdall was found in the cellar at the Ship Inn of which the applicant was the owner.
14.
The prosecution case was that the applicant had supplied to Wilson the quantities of ecstasy which Wilson supplied to the undercover officers. The prosecution alleged that he could be directly related to the transactions on 19th October and 7th November by the itemised calls from the mobile telephone found at Wilson's home address to the mobile telephone found at the applicant's home address.
15.
It was the Crown's case that the applicant transported Wilson and the drugs to the hardware store in his Audi motorcar on 19th December and that the distinctive markings on the black holdall found in the cellar of the Ship Inn showed it to be identical to that used by Wilson to carry the drugs on that occasion. The Crown relied on evidence from the Dutch manufacturers of the holdall that such holdalls were not actively sold by them in this country.
16.
In interview the applicant denied any involvement in a conspiracy to supply class A drugs. He knew Wilson because he drank in his pub. He gave him a lift to the hardware store on 19th December but knew nothing of the drugs. Wilson tended to telephone him when he was drunk to discuss arrangements concerning the pub pool team. The ecstasy tablets found in the kitchen drawer had been handed in at his pub a few days before. He had no knowledge of the holdall found in the cellar at the Ship Inn and it was not his.
17.
The defence case was that the applicant was not involved in any conspiracy to supply ecstasy. Wilson had supplied large quantities of cocaine and amphetamine to the undercover officers. Wood drove Wilson to the meeting point for two such transactions. There was no suggestion that the applicant was the ultimate supplier of these drugs and the defence maintained that if Wilson was being supplied with these drugs by other individuals the jury could not be sure that it was the applicant who had supplied the ecstasy to him. Itemised telephone records showed that Wilson had made telephone calls to Wood and to a man named Lawson during the relevant period, both of whom had convictions for drug matters. It was clear that Wilson was using at least one other mobile telephone at the relevant time for which the itemised calls were not available.
18.
The applicant gave evidence and denied any involvement in supplying the ecstasy. His evidence as to the telephone calls was summed up by the judge. His evidence as to the circumstances in which he gave Wilson a lift to the hardware store on 19th December was similarly fairly set out by the judge in the summing-up. His evidence as to the holdall was also summed up. He gave evidence as to the holdall and there was also evidence from Michelle Wilson as to the ecstasy tablets found in the Ship Inn.
19.
A man called Edward Leyton also gave evidence. He said that he was a customer at the Ship Inn and knew Wilson. Wilson may have telephoned him at the pub, but he would not have been there during the daytime.
20.
The proposed ground of appeal against conviction is that the judge's summing-up was biased against the applicant, in particular that the judge referred to coincidences explained by the applicant in derogatory terms. So far as that is concerned we have carefully considered the summing-up. In our judgment none of the comments made by the judge went beyond those he was entitled to make on the evidence before him. There is no sensible argument that this conviction is unsafe by reason of any derogatory remarks or other prejudice that might arguably be engendered by the terms of the summing-up. It follows that the renewed application for leave to appeal against conviction is refused.
21.
So far as sentence is concerned, the applicant had two previous serious convictions for drug offences, albeit they related to class B drugs. The judge said he was quite satisfied that the applicant was the main supplier of ecstasy to Wilson. As the telephone calls demonstrated, he had supplied at least 11,000 other tablets in addition to the 30,000 supplied to Wilson on 19th December. Heat sealed packages in which the drugs had been supplied clearly came almost directly from the manufacture into his possession. Given that the judge found and was entitled to find that the applicant was a large scale dealer in class A drugs, namely ecstasy, and was close to the source of supply, a substantial sentence of imprisonment was inevitable and indeed that is accepted in the grounds settled by counsel. A sentence of 14 years' imprisonment could not be the subject of any complaint. Here the sentence was one of 16 years' imprisonment. However, that addition was in our judgment well justified by the previous convictions of this applicant. In those circumstances, there is no arguable appeal against the sentence of imprisonment and the application for leave to appeal against that sentence is similarly refused.
22.
We turn to the confiscation order. The application for leave to appeal against the confiscation order seeks to raise a question of principle as to the application of the relevant provisions of the
Drug Trafficking Act 1994
. The applicant had, on the findings which the judge made and which it is accepted he was entitled to make, acquired a number of properties with cash which the judge was entitled to find, certainly to assume, had been derived from his drug dealing. In the case of all or most of those properties the purchase price had been financed not only from cash derived from the drug dealing, or assumed to be from the drug dealing, but also from loans made by banks and other financial institutions. The submission made on behalf of the applicant in essence is that where that occurs the benefit derived from the drug dealing of the applicant is not the property itself but a proportion of the property represented by the deposit which may be explained or may be assumed to be derived from the proceeds of drug dealing. For example, if £5,000 in cash is supplied to a property purchased for £100,000 and a mortgage of £95,000 is taken and the property doubles in value, the benefit value as at the date of the confiscation order to be taken by the applicant, in his submission, is not £105,000, being the value of the equity in the property, but £5,000 doubled to £10,000.
23.
In our judgment that submission is based on a fundamental fallacy, namely that what is acquired in the circumstances to which we have just referred is an interest of £5,000, rather than the equity in the property subject to the mortgage. In our judgment
the Act
requires that relevant property be valued as at the date of the confiscation order, subject to any charges, but it is the property which is valued rather than the deposit placed on the property by a defendant.
24.
We arrive at that result through two possible loops, both of which have exactly the same result. For present purposes we turn first to
section 4
of
the 1994 Act
. Sub
section (1
) provides:
"For the purpose of
this Act
-
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of
this Act
) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards."
Sub
section (2
) provides:
"Subject to sub
sections (4
) and (5) below, the Court shall, for the purpose -
(a) of determining whether the defendant has benefited from drug trafficking,
and
(b) if he has, of assessing the value of his proceeds of drug trafficking,
make the required assumptions.
(3) The required assumptions are-
(a) that any property appearing to the court-
(i) to have been held by the defendant at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;
(b) that any expenditure of his since the beginning of that period was met out of the payments received by him in connection with drug trafficking carried on by him; and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it."
It is undisputed that the various properties which constituted the realisable property of the applicant at the date on the confiscation order were properties which had been transferred to him at a time subsequent to the beginning of the period of six years ending with the proceedings instituted against him referred to in
section 4
(3(a(ii). It follows that the court was required to make the assumption stipulating
section 4
, namely those properties had been received by him as a payment or reward in connection with drug trafficking carried on by him. The words "in connection with" are of wide input. They do not necessarily require there to be an immediate and direct connection with drug trafficking. In our judgment, where it is shown that a defendant has with cash which are the proceeds of drug trafficking put that money into property that is acquired property with it, section 3(a) requires that the property so required to be regarded as a payment or reward in connection with the drug trafficking carried on by the defendant.
25.
The assumption is a rebuttable assumption. It is rebuttable in the circumstances referred to in
section 4(4)
. That provides:
"The court shall not make any required assumption in relation to any particular property or expenditure if-
(a) that assumption is shown to be incorrect in the defendant's case; or
(b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made;
and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons."
In the present case the applicant was unable to establish that the assumption was incorrect. It might have been shown to be incorrect because a property had been purchased by him from monies made quite legitimately. It might have been shown to have been incorrect if the property were a genuine gift or the result of a request made by relative. He was unable to do anything of that kind. The assumption therefore remained good unless
section 4(4)
(b) applied.
Section 4(4)
(b) applies if the court is satisfied that there would be a serious risk of injustice if the assumption were to be made. In circumstances where the value of the property in the hands of the defendant exceeds the cash investment he made in it, because the value of that property has risen, we see nothing unjust or even arguably unjust in the value of the property being taken to be the payment or reward of the defendant made in connection with drug trafficking. It has frequently been said that the legislation is draconian. Its object is to deprive those involved in drug trafficking of the benefit of drug trafficking and in a case such as that which we are considering, where a deposit has been made of cash monies in order to buy a property, we see nothing unjust or arguably unjust and no risk of injustice if the property which is acquired, which we remember is not the deposit but the equity in the property if there is a mortgage, is taken to be the reward of drug trafficking. It is accepted that if the assumptions do apply and the property is assumed and therefore taken to be a payment or reward in connection with drug trafficking, the property is to be valued as at the date of the proceedings resulting in the confiscation order. That is what the judge did. In our judgment it is neither unjust nor surprising that where a property is bought with a relatively low down payment and a high mortgage and it increases in value, the benefit to the defendant is a sum which may be a multiple of the original deposit. That is because, subject to any interest payments, any mortgage remains unchanged by increases in market values, whereas the defendant has acquired the equity in the property, that is to say he has the property subject only to the mortgage. That appears to us to be plain on the wording of
section 4
and having regard to the draconian purposes of
the Act
.
26.
A similar result may be reached by applying the provisions of section 7. If cash which is assumed to be the rewards of drug trafficking is used to purchase a property then that property represents directly or indirectly the reward. Section 7(3) provides:
"Subject to
section 8(2)
of
this Act
, if at the material time [the material time relating to confiscation proceedings] the recipient [that is to say the recipient of the properties -- in this case the applicant] holds-
(a) the property which he received (not being cash), or
(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,
the value referred to in sub
section (2
)(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it represents the property which he received, but disregarding in either case any charging order."
No question of charging orders arise in the present case. The real properties acquired with cash which were assumed to be and properly assumed to be the proceeds of drug trafficking, directly or indirectly represent that cash -- that is to say the property which was originally received by the recipient referred to in subsection (3)(b) of section 7 is the cash, and the property applied with it directly or indirectly represents it for the purposes of
the Act
. If that is so, then the property falls to be valued as at its market value, subject of course to any charging order and it would also be necessary to take into account any outstanding charges or mortgages. That is what the judge did in the case of each relevant property.
27.
Our attention has been focused on the Old School Lane project which was the last and most important of the acquisitions made by the applicant. That was a property which was developed. The applicant contributed a relatively small sum, some £40,000 on the judge's findings, to the acquisition of that property. It was acquired and developed by a partnership in which the applicant had a fifty per cent interest. After completion of the development the profit from the partnership was something approaching £1 million and the defendant's fifty per cent of that was some £400,000. The £1 million and the £400,000 were arrived at after deduction of all charges. In our judgment the judge's calculation is precisely that which we would have expected to be made under the provisions of
the Act
. The fact that the original contribution of the applicant was a relatively small sum and his profit a large sum in no way makes the application of the assumptions in
the Act
and the requirements of
the Act
unjust, creates no risk of injustice, nor shows that the assumptions are inaccurate. To the contrary, it is in the public interest that those who traffic in drugs should be deprived of their benefit from drug trafficking viewed in the largest possible way. As we have already observed, this legislation is draconian and intended to be such.
28.
It was put to us in favour of Mr Bodnar's submissions that the Crown's interpretation of
the Act
and that adapted by the judge in this case would lead to bankruptcy of an applicant which is neither a matter stipulated nor intended by
the Act
. That again is a misapprehension. Whatever may be the calculation of a defendant's benefit from drug trafficking, a confiscation order is limited by the extent of his realisable property and since it is limited to his realisable property, no question arises of a confiscation order being made in a sum which is greater than the value of property available for its satisfaction. Indeed, there are provisions in
the Act
for reducing the amount of a confiscation order in circumstances where unexpectedly the value of property in practice is not that which a court assumed it to be or found it to be when the confiscation order was made.
29.
In our judgment the working of the provisions of
the Act
are quite clear.
The Act
has always been applied in the manner we have described and although Mr Bodnar's submissions were worthy of consideration in terms of time, in our judgment they raised no arguable point of appeal. The confiscation order was rightly made and this application is therefore refused.
30.
MR BODNAR: My Lord, a couple of things very briefly. My Lord said that the confiscation was revised upwards to £750,000. In fact what happened was the order of £667,000 represents the applicant's realisable assets. The learned judge made a benefit finding of at least £750,000.
31.
LORD JUSTICE CLARKE: He revised that to £750,000.
32.
MR BODNAR: The order itself remained the same.
33.
LORD JUSTICE CLARKE: Thank you.
34.
MR BODNAR: The second point, very briefly, is that the order has been somewhat in abeyance awaiting this hearing. Could I invite your Lordships to extend the time for payment by three months, to permit I think the technical----
35.
LORD JUSTICE CLARKE: By three months? Yes, we will do that. Yes.
36.
MR BODNAR: The final point is I have in mind a very broad definition in connection with -- I do not know if it is possible to ask for a certificate on a leave application. If it is I will do it in writing.
37.
LORD JUSTICE CLARKE: It think it is very unlikely. If it is you had better do it in writing. Thank you very much. | ```yaml
citation: '[2004] EWCA Crim 2715'
date: '2004-10-27'
judges:
- LORD JUSTICE CLARKE
- MR JUSTICE GIBBS
- MR JUSTICE STANLEY BURNTON
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 1799
Case No:
200806053 A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 12th May 2009
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE SHARP DBE
HIS HONOUR JUDGE WADSWORTH QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ANTHONY JAMES BIDMEAD
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr S Smith QC
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
JUDGE WADSWORTH: This appellant was sentenced by Judge Hamilton at the Crown Court in Derby to imprisonment for public protection with a minimum custodial term of five years in respect of offences of sexual activity with a child, and also to an 18 month extended sentence concurrent for possessing indecent photographs of a child or young person. This appeal is made out of time by leave of the single judge and is limited to the question of the appropriate minimum term on the sentence of imprisonment for public protection.
2.
The appellant was of course also the subject of a Sexual Offences Prevention Order for an indefinite term and was disqualified from working with children. No appeal lies in respect of those matters.
3.
His co-accused was a man of similar age who received a total sentence of six years' imprisonment, which this court reduced to a four year determinate sentence, and it was, as Mr Smith has rightly told us, that decision of this court which led to this application being made and granted out of time.
4.
The appellant and his co-accused were homosexual partners living in a house where there was a room which they called the "Egyptian Room" with an adjoining hot tub and sauna, and it was clear that various parts of the house had been converted and were being used for homosexual activities.
5.
On the joint indictment with his co-defendant this defendant pleaded guilty on counts 4, 6, 8 and 10 to sexual activity with a child, and on counts 12 and 13 to possessing indecent photographs of a child. The child, named J, was 14 at the time of the offence. He was a young man who had had an unhappy and difficult life at home and had been asked to leave by his mother. He had gone to stay with other young men in the neighbourhood, who soon introduced him to the appellant. J then moved into the house with the appellant and his co-accused and stayed there for some four months in the course of 2006. It is clear that he fell under the controlling influence of the appellant and began to engage regularly in consensual sexual activity. This resulted in the two specimen counts on the indictment, counts 4 and 6, relating to acts of oral sexual intercourse. The young man said that it happened too regularly to be able to give an exact account, but that it was sometimes three times a day, that it happened on about ten separate occasions, and one of those was a three-some with the appellant and his co-accused.
6.
Counts 8 and 10 on the indictment alleged anal penetration of the child by the appellant. Again, these were specimen counts in that it was alleged that this had happened on more than four occasions.
7.
When the police searched the house they recovered a home made video showing two boys or young men engaged in oral and anal intercourse with the appellant and the co-accused. It appeared from the video that that activity was consensual. It was that matter which led to the counts of possessing indecent photographs.
8.
The appellant is a man of nine previous convictions with a history of sexual offences against children and of violence dating back some 20 years. These convictions included indecent assaults on males under the age of 14 and the age of 16 years, buggery (as it was then called) and gross indecency with a child and unlawful sexual intercourse with a young female.
9.
The appeal before this court relates only to the tariff element of the sentence, which it is submitted is manifestly excessive in that it must be based on a notional determinate sentence of ten years following a plea of guilty, which indicates a 15 year term had the sentence been imposed after trial.
10.
Leave to appeal out of time was sought and given following the decision to reduce the sentence on the appellant's co-accused, Clinch.
11.
We have had the benefit of considering the judgment of that court and seeing the pre-sentence reports in relation both to the appellant and his co-accused. When both parties were sentenced, the learned judge described the appellant as "clearly the most involved in this particular series of offences". He also described the appellant as drawn to young people who were particularly vulnerable young people who came from broken homes and as a manipulative man who would in due course try to manipulate the Parole Board when the time for review came. In sentencing, the judge noted that a previous offence had been in relation to a 14 year old boy and explained that in this present case, had there been a conviction after trial, sentences would have been consecutive and would have exceeded 14 years. The reason given for the consecutive sentence was that the judge regarded the appellant's house as deliberately set up to what he described as "almost a sort of honey trap for young children". The appellant is described as having total control over the boy concerned in this case and it is clear that the judge worked on the basis that he was discounting from a notional total of 15 years.
12.
So far as concerns the co-defendant Clinch, he was a man of good character, found to be under the influence of the appellant. He was described by the judge as being simply interested in his own sexual gratification, but nevertheless of former good character and not a serious danger or serious risk. For that reason there was no imprisonment for public protection in his case but a term of six years after giving credit for plea. This court held in relation to Clinch that the starting point of nine years without discount for a plea of guilty was too long, and we are invited to use that as something of a bench mark for the starting point of 15 years in the case before us.
13.
As the court said in Clinch's case, the breadth of the suggested sentencing range in the definitive guidelines is great and reflects the fact that each case turns very much on its own facts. Nevertheless, we do receive assistance from the indication that the appropriate starting point for the co-accused was one of four years after a plea of guilty. On that basis we have come to the view that the appropriate sentence upon this defendant, had it been a determinate sentence after trial, would have been one of the order of 12 years. Giving the normal discount on a plea that would be one of eight years, so that the minimum period to be served on a sentence of imprisonment for public protection becomes one of four years rather than the five years pronounced by the trial judge. To that extent this appeal is allowed, but we stress in so doing that that four years is a minimum term and the amount of time eventually served will be a matter for review as appropriate. All other orders to stand. | ```yaml
citation: '[2009] EWCA Crim 1799'
date: '2009-05-12'
judges:
- LORD JUSTICE TOULSON
- MRS JUSTICE SHARP DBE
- HIS HONOUR JUDGE WADSWORTH QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200400511/B4
Neutral Citation Number:
[2004] EWCA Crim 2831
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 3rd November 2004
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MRS JUSTICE HALLETT DBE
MRS JUSTICE DOBBS
- - - - - - -
R E G I N A
-v-
GLEN ADAWAY
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR D W MAYALL
appeared on behalf of the APPELLANT
MR P COOPER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 18th December 2003 at Reading Crown Court, following a trial of several days before His Honour Judge Playford QC, the appellant was convicted on two counts of supplying goods with a false trade description contrary to
section 1(1)
(b) of the
Trade Descriptions Act 1968
, that was count 1, which related to roof vents, and count 2, which related to the roof of a conservatory. The jury acquitted on count 3, which related to the sides of the conservatory. The appellant was fined £250 on each of the two counts on which he had been convicted.
2.
He appeals against conviction by leave of the single judge.
3.
There was a co-accused, Mrs Adaway, the appellant's wife. She was acquitted on all three counts. The judge ordered that her costs be paid by the prosecution.
4.
The circumstances were that Mr and Mrs Adaway traded as a partnership called Quality Direct. They agreed to supply and install a conservatory at the home in Woodley in Wokingham of a Mr Byatt, who became the complainant. The contract provided that there should be two roof vents and sides of Pilkington K glass, but there was a dispute between the parties as to whether the roof itself should also be of K glass. Mr Byatt said "yes", the appellant and his wife said "no".
5.
The conservatory, which cost £18,000, was erected in early 2002. On completion there were no vents in the roof, the roof was not of K glass and nor were the sides. The appellant had agreed that there should be two roof vents and K glass in the sides. He said he had made a mistake when ordering the components from the supplier. But he did not believe that the contract provided for the roof to be made of K glass. If it did, then he was mistaken about that. The appellant offered to replace the glass in the sides with K glass, or to compensate Mr Byatt for the mistake and for the lack of roof vents. Mr Byatt refused that offer and went, as he was entitled to, to the Trading Standards Office. Eventually, on a basis to which in a moment we will come, that Office recommended the initiation of a prosecution of the appellant and his wife at the suit of the Wokingham District Council.
6.
It was the prosecution case that the conservatory was supplied without two opening roof vents and that the sides and roof were not of K glass. The written descriptions supplied were false. It was the defence case that the appellant had accepted that the conservatory should have two roof vents and K glass in the sides, but he had taken all reasonable precautions and exercised all due diligence in preventing the mistake and he relied on the statutory defence available to him in those respects by virtue of section 24 of the Trade Descriptions Act. The appellant did not accept that there had been an agreement for the roof to be of K glass; but, as we have said, he said that, if he had failed to notice that requirement, that was a mistake which he had made.
7.
Three grounds of appeal are advanced on behalf of the appellant. The first is that the judge was wrong in refusing to stay the proceedings as an abuse of process. The second is that the verdicts of the jury in acquitting on count 3, but convicting on counts 1 and 2, were inconsistent and inexplicably so. The third ground is critical in one respect of the summing-up in relation to the possibility of mistake. If the first ground is well founded, it will not be necessary to consider the second and third grounds.
8.
The submission which Mr Mayall makes in relation to the first ground is simply this. The judge had not merely the power, but the duty, to stop this prosecution if it were oppressive. Mr Mayall accepted that the onus was on the defence to show at the outset, when the submission was made, that the prosecution was oppressive. Mr Mayall submits that that was done evidentially, because no criterion to justify the prosecution in the prosecuting authority's Public Protection Enforcement Policy was established. To those criteria we shall, in a moment, return.
9.
Mr Mayall submits that there was, on the material before the judge, nothing other than bare assertion on behalf of the prosecution authority that the prosecution fell within the terms of the Policy document. At this point it is convenient to refer to the terms of that Policy document. Paragraph 7.1 is in these terms:
"There are two issues to determine. The first is what level of enforcement action to take. The second is that, if the first decision is to take formal enforcement action, then is that action viable and appropriate. There are two stages in determining whether formal enforcement action is viable and appropriate:
- Stage 1: The evidential test,
- Stage 2: The public interest test."
That sort of approach is familiar from the Code for Crown Prosecutors issued by the Crown Prosecution Service.
10.
However, there is in this Policy document a further paragraph of particular present significance. It is in these terms, so far as they are presently material:
"Prosecution
7.2. In order to take forward prosecution, the individual or organisation must meet one or more of the following criteria:
- Engaged in fraudulent activity,
- Deliberately or persistently breached legal obligations."
11.
The submission made by Mr Mayall is that there was no evidence of fraud, either at the outset, or in due course, although both Mr and Mrs Adaway were cross-examined on the basis that they had behaved fraudulently. Furthermore, submits Mr Mayall, there was no evidence of deliberate or persistent misconduct, although the prosecution asserted that that was their case. Mr Mayall submits that the judge should not, in making the ruling rejecting the application for a stay, have adopted the "wait and see process" which it appears he may have done.
12.
At that point it is convenient to rehearse certain passages from the judge's ruling rejecting the stay which was given on 1st September 2003. At page 3B there is a reference to a Mr Mitchell. It is to be noted that Mr Mitchell was never called to give evidence before the jury. The judge, having referred to the making of the complaint by Mr Byatt to the Newbury Trading Standards Office, said this:
"... Mr Mitchell saw the conservatory and thought that was a matter which should be resolved without recourse to the criminal law although he is recorded as telling the Byatts that 'he had had previous problems with Quality Direct' and that 'they had had a fair amount of court experience,' matters which have not been elaborated before me as yet."
13.
The judge went on to refer to a visit by Mr Mitchell to the premises where the conservatory had been erected where, apparently:
"... he was persuaded by Mr Byatt to change his mind."
In consequence the matter was passed to the Wokingham District Council and the present prosecution was instituted. The learned judge was referred to a passage in the judgment of Phillips LJ, as he then was, in
Shropshire County Council v Simon Dudley Limited
[1996] Trading Law Reports 69, at page 82, where Phillips LJ said:
"Trading standards officers must exercise discretion when deciding whether or not a particular case warrants the intervention of the criminal law ... The Trade Descriptions Act is essentially concerned with consumer protection. It does not seem to me that this case falls within the type of mischief against which
the Act
is directed."
The Divisional Court in that case, having allowed the appeal, imposed absolute discharges in relation to the breaches of the Trade Descriptions Act which had there occurred.
14.
The learned judge, having quoted from that judgment of Phillips LJ, which included a reference to it being easy to see that:
"... a busy criminal court and a jury could become bogged down in a misplaced endeavour to resolve what are essentially civil disputes,"
went on to refer to Mr Mitchell's reaction, and the fact that he, Mr Mitchell, had seen no good reason to involve the criminal law, because there seemed to be nothing specially heinous about these offences that made the county court inappropriate.
15.
The judge went on, at the top of page 5:
"However, I am not the prosecutor and I am not responsible for the decision to prosecute. I do not have power to stay a prosecution just because I do not like it."
16.
The judge went on to refer to
DPP v Humphries
[1977] AC 1
, to Phillips LJ's judgment already cited and to the skeleton argument of Mr Cooper, on behalf of the prosecution.
17.
This contained an assertion that the defendants:
"... 'deliberately breached their legal obligation' and 'engaged in fraudulent activity' thus falling within those criteria."
That is a reference to the criteria we have already identified in 7.2 of the Policy document.
18.
The judge went on at 5H:
"I really cannot say, and may never be able to say, whether these criteria are in fact satisfied and doubt whether it is realistic to reach a concluded view on such matters in advance of the trial and certainly without hearing evidence. All I can say is that there is nothing in the papers before me that supports Mr Cooper's bare assertion, save possibly from Mr Mitchell's cryptic comment noted above and a comment which at least initially did not cause him to recommend criminal proceedings. On the contrary, it rather looks to me as if the view of the man on the ground, Mr Mitchell, was initially that the criteria was not met and that he was persuaded to take a different view not by a consideration of the laid down criteria but by Mr Byatt's insistence."
19.
The judge went on to say that the criteria did not have statutory effect and that the decision whether or not to prosecute was a matter for the discretion of the local authority. Those observations are clearly correct.
20.
The judge, however, went on towards the end of his ruling, at page 7, to say this:
"The views on the facts that I have expressed are entirely provisional. I have heard no evidence ... At the conclusion of the case, however it may end, I will have heard all the evidence and will have formed my own view of the matter in which the defendants carried on their business. If I then consider that there was no public interest served by this prosecution, none of the criteria having been met, especially if the reason for that failure was that Mr Mitchell's initial view was correct ... I shall certainly make my view clear and reflect it in any sentence or in considering costs or compensation."
21.
Indeed, when the learned judge came to impose the fines upon the appellant, to which at the outset we referred, and to make the order in favour of the female defendant as to her costs, the learned judge said this in a passage on which Mr Mayall places particular reliance at page 3 of the sentencing remarks:
"It is the responsibility of Wokingham District Council to ensure that they do not improperly or disproportionately use their powers of enforcement so as to cause oppression. They have, at their disposal, public funds and they should not mobilise the criminal law unless it is in the public interest to do so or when a warning or some form of caution would do as well.
In particular, the criminal law should not be mobilised to secure the settlement of private disputes which should more appropriately be determined in the county court or by arbitration or by mediation."
22.
The judge went on to rehearse certain passages from his ruling of 1st September, by which he said he had reminded the District Council of their duties in this respect. He went on to say that, so far as Mrs Adaway was concerned, she had had nothing whatever to do with the contract and there was no reason for including her in the prosecution, save the purely technical one that she was her husband's partner:
"Still less was there any basis for cross-examining her on the basis of fraud or recklessness.
In my judgment Wokingham District Council did not exercise the rigorous discretion required of them. According to their own guidelines, they had no good basis for prosecuting these defendants, especially Mrs Adaway, it was not in the public interest to do so."
23.
He went on to refer to the indignity of the defendants having been publicly and aggressively cross-examined on the basis that they been dishonest:
"... an allegation that, in my view, was made through a desire to continue, not to initiate these proceedings."
He then went on to make the award of costs to which earlier we have referred.
24.
In the light of those observations when passing sentence, Mr Mayall suggests that his submission to this Court is even more soundly based, because the learned judge was there recognising expressly that the local authority most not act in an oppressive way. In the light of the material available to the judge at the end of the trial, which was in substance no different from the material which was available to him at the beginning when he made his ruling, Mr Mayall submits that the judge should at the outset have concluded that this prosecution was oppressive and ordered that it be stayed.
25.
In the face of that forceful submission, the Court sought submissions from Mr Cooper, on behalf of the prosecution, as to the manner in which it could be said that the criteria identified in 7.2 had been met. He accepted that there was no evidence of fraud. He accepted, that being so, that neither Mr nor Mrs Adaway ought to have been cross-examined on the basis that they were fraudulent. He accepted that there was no material demonstrating persistent breach of legal obligations. He accepted that the only material capable of establishing a deliberate breach was the denial by the appellant in the course of the interview that any mistake had been made by him.
26.
As it seemed to us, as this appeal progressed, it became clear beyond per adventure that neither of the criterion identified in 7.2, and sought to be relied on before the learned judge, was capable of substantiation. It follows that Mr Mayall's submission, that the learned judge ought at the outset to have reached the conclusion that a prosecution was oppressive, which in the course of his sentencing remarks he hinted that he had by then reached, is well founded. In our judgment, it follows that the learned judge, albeit exercising a discretion in refusing a stay, exercised it in a way which was without foundation. It follows that this appeal must be allowed and the appellant's conviction quashed.
27.
We add this. We have no information as to how much these proceedings have cost this local authority. We suspect that it must be many thousands of pounds. We cannot emphasise too strongly that before criminal proceedings are instituted by a local authority, acting in relation to the strict liability offences created by the Trade Descriptions Act, they must consider with care the terms of their own prosecuting policy. If they fail to do so, or if they reach a conclusion which is wholly unsupported, as the conclusion to prosecute in this case was, by material establishing the criteria for prosecution, it is unlikely that the courts will be sympathetic, in the face of the other demands upon their time at Crown Court and appellate level, to attempts to justify such prosecutions.
28.
For the reasons which we have given, this appeal is allowed. The appellant's convictions are quashed.
29.
MR MAYALL: My Lord, as in the court below, there is an application for costs in this matter.
30.
THE VICE PRESIDENT: Are you privately funded?
31.
MR MAYALL: My Lord, yes.
32.
THE VICE PRESIDENT: You seek the costs against the prosecution?
33.
MR MAYALL: My Lord, as in the court below.
34.
THE VICE PRESIDENT: That would be the local authority, would it?
35.
MR MAYALL: Yes.
(
Pause
)
36.
THE VICE PRESIDENT: Yes, Mr Mayall, you may have your costs.
37.
MR MAYALL: I am grateful, my Lord. There is one other matter which arose in the court below, in that the regulation allowing for costs to be awarded against the prosecution, as against out of central funds, require that your Lordships specify the amount.
38.
THE VICE PRESIDENT: You are quite right to remind us of that. Have you got a figure?
39.
MR MAYALL: My Lord, yes. I have got --
40.
THE VICE PRESIDENT: Has Mr Cooper seen it?
41.
MR MAYALL: My Lord, what we have is in relation to costs below. They are simply halved, half to represent Mr Adaway and half to represent Mrs Adaway. The local authority have paid their half in relation to that, so they are obviously aware of those costs.
42.
THE VICE PRESIDENT: What is the figure?
43.
MR MAYALL: My Lord, the figure is --
44.
MRS JUSTICE HALLETT: So those are the costs of a four day trial?
45.
MR MAYALL: It was five days eventually, yes. Including the proceedings in the Magistrates' Court and the application, the total is £14,657.71.
46.
THE VICE PRESIDENT: £14?
47.
MR MAYALL: Plus VAT.
48.
THE VICE PRESIDENT: £14,6 and what?
49.
MR MAYALL: £57.71.
50.
THE VICE PRESIDENT: Is that the total or the half figure?
51.
MR MAYALL: That is the half figure.
52.
MRS JUSTICE HALLETT: And that's the Crown Court proceedings and these proceedings?
53.
MR MAYALL: My Lady, no.
54.
THE VICE PRESIDENT: That is the proceedings before the Magistrates and in the Crown Court.
55.
MR MAYALL: Yes.
56.
THE VICE PRESIDENT: What is the figure you are seeking in connection with the appeal?
57.
MR MAYALL: In connection with the appeal, my Lord, the costs are -- solicitors' costs £4,901.05, that includes VAT.
58.
THE VICE PRESIDENT: We are not going into pence, Mr Mayall, I can tell you that.
59.
MR MAYALL: £4,901.
60.
THE VICE PRESIDENT: And counsel?
61.
MR MAYALL: My Lord, £6,750 plus VAT, which is -- the VAT is £1,181-odd. So the total figure for everything is £12,832.
62.
THE VICE PRESIDENT: I am not sure where that figure comes from.
63.
MR MAYALL: My Lord, it is £4,901, which is the solicitors, £6,750, VAT of £1,181 on that £6,750.
64.
THE VICE PRESIDENT: I see. So the total figure is?
65.
MR MAYALL: £12,832.
66.
THE VICE PRESIDENT: £12,832. Mr Cooper?
67.
MR COOPER: My Lord, I don't wish to raise any due argument with regard to the costs. That is in your hands. It is not for me to raise any argument, save to say it is in your hands, my Lord, whether the prosecution have to meet the costs, or whether they can be met from central funds.
68.
MRS JUSTICE HALLETT: What about the amount, Mr Cooper, apart from the principle?
69.
MR COOPER: I was given a costs schedule two days ago with regard to today's hearing of some £3,000. I understand that has been revised to some £4,000-odd.
70.
THE VICE PRESIDENT: That sounds like the solicitor's costs, doesn't it.
71.
MR COOPER: That's right. I am not -- I have not seen any costs with regard to -- any other costs with regard to today. I can't obviously tax those, or deal with costs on a professional basis, because that is not really my argument to argue one way or another whether they are reasonable or not, so I can't offer any judgment. Clearly it is would be within the Court's jurisdiction to meet a costs demand as they think reasonable for the action taken.
72.
THE VICE PRESIDENT: I take it you can't have any comment to make so far as the costs in the Magistrates' Court and Crown Court are concerned because those have been the subject of examination before?
73.
MR COOPER: Yes, Mrs Adaway's costs have been met and paid.
74.
THE VICE PRESIDENT: But those were halved, so there can't be any argument, as I understand it, about the figure of £14,600 plus VAT for that.
75.
MR COOPER: No.
76.
THE VICE PRESIDENT: Thank you. (
Pause
). We shall order the local authority to pay in relation to the costs of the Magistrates' and the Crown Court the sum of £14,657 plus VAT. In relation to the costs of this appeal, we shall order the local authority to pay a total sum of £7,500 plus VAT. Thank you. | ```yaml
citation: '[2004] EWCA Crim 2831'
date: '2004-11-03'
judges:
- LORD JUSTICE ROSE
- MRS JUSTICE HALLETT DBE
- MRS JUSTICE DOBBS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200704293/D3-200704384/D4-200704568/D4
Neutral Citation Number:
[2008] EWCA Crim 2746
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 31st October 2008
B e f o r e
:
LADY JUSTICE HALLETT DBE
MR JUSTICE FOSKETT
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - -
R E G I N A
v
CUONG PHU QUACH
SON GIANG BUI
HA THI NGUYEN
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr F Chamberlain
appeared on behalf of the
Appellant Quach
Miss S Loke
appeared on behalf of the
Appellant Nguyen
Mr T Badenoch
appeared on behalf of the
Appellant Bui
Mr P Asteris
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE HALLETT: On 18th and 19th July 2007 at the Southampton Crown Court before His Honour Longbotham the appellant, Nguyen, was convicted of conspiring to produce a quantity of cannabis (count 1); converting criminal property (count 2); two counts of converting criminal property (counts 3 and 4) and two counts of obtaining a money transfer by deception (counts 5 and 7). The appellants, Bui and Quach, were also convicted of count 1. Bui was acquitted on count 2, converting criminal property; count 6, obtaining a money transfer and count 8 abstracting electricity. A man called Do should have been tried with the three but he absconded.
2.
On 19th July 2007 they were sentenced as follows. Nyuyen on the count of conspiring to produce cannabis, 10 years' imprisonment, on the three counts of converting criminal property, 2 years' imprisonment, each ordered to run concurrently and 2 years’ imprisonment ordered to run concurrently on the two counts of obtaining money transfers, making a total sentence of 10 years. Bui was sentenced to 6 years' imprisonment, Quach was sentenced to 5 years' imprisonment and recommended for deportation. It seems that he was not long in custody in this country before he was sent back to Vietnam.
3.
Nguyen has abandoned her application for leave to appeal against conviction, which was referred to us. Having reviewed the strength of the evidence against her, in our view that was a sensible decision. All three of the appellants have leave to appeal against sentence.
4.
The background is as follows. Nguyen was the owner of a number of houses including 208 Leigh Road and 71 Westwood Road, Salisbury. She also owned two nail bars, which may or may not have been a front for her cannabis operation. Bui worked for her as a nail technician. He was the owner of a house at 10 Eastleigh Road, Fair Oak. Eastleigh Road was kept under observation by the Hampshire Constabulary. On 17th October 2005 Mr Range, an employee of Southern Electric, went to Eastleigh Road to change the meter. A man answered the door and would not let him in. He returned the following day and met Nguyen. He discovered the meterr had been tampered with and substantial quantities of electricity consumed un-metered to the value of approximately £1300.
5.
On the same day police executed a search warrant. Quach was found in a bedroom and when police sought to detain him, he struggled and had to be handcuffed. Nguyen was found in the same room, partially concealed behind a window blind. One officer said when he was outside he saw a woman of oriental appearance trying to get out of an upstairs window. She was taken back inside and when her handbag was searched inside was found a water bill for the property. Downstairs, Do was also detained. Rooms in the house had been fitted with lighting and hydroponics. There were vents in the loft space and the doors and windows were covered in plastic sheeting. Two notes with Vietnamese handwriting on them were found in the loft. When they were translated they were found to contain instructions on how to grow cannabis plants. The Crown alleged the handwriting was Nguyen's.
6.
Cannabis plants at different stages of growth were found in the three rooms in the house. They contained 407 plants, with a wholesale value of between about £31,500 to £46,000. The equipment itself was worth nearly £6,000. DNA evidence linked Bui and Do to the house and Quach to the van parked outside. The van had been rented by Nguyen the previous day in her sister's name.
7.
By the time the police found Nguyen's other properties, two of them had been placed on the market for sale. Police noted that rooms had been re carpeted, there were vents in the loft, similar to those in Eastleigh Road and of the kind required for cannabis production.
8.
Cannabis leaves were discovered at 71 Westwood Road and DNA linked Do to that property also. Again, there were holes in the roof and other equipment almost identical to that found in the loft space in Eastleigh Road. In addition, a neighbour described how the curtains were never opened, people came and went during the early hours but never in the daytime and never at weekends. She heard banging and saw that the occupants had built a ramp to the garage and there were vans parked outside on a regular basis.
9.
A police officer gave evidence about money laundering techniques which include, "smurfing", where numerous small amounts are paid into different accounts and cross firing, where there is an unnecessary movement of funds between accounts. He had been through the bank accounts of Nguyen and Bui and he gave evidence that both smurfing and cross firing had occurred here. He could detect no legitimate income. He also noted that one of Nguyen's properties, 22 Churchfield Road, had been sold at a loss. It was his opinion that money laundering had been taking place and it must have been money laundering of thousands of pounds.
10.
A Mr Abdul, a mortgage broker, gave evidence that Bui and another oriental man came to see him about a mortgage for Eastleigh Road. When he explained the procedure to Bui, he seemed to understand. He also assisted Nguyen in respect of her mortgage applications. For the purposes of buying 208 Leigh Road, she claimed that her takings from the nail bars were £79,000 a year. However, when she made a mortgage application for 71 Westwood Road, her income was £42,000 in 2003 and £45,000 in 2004. As far as Eastleigh Road was concerned, Bui's basic gross income was said to be £39,000 - rather a large sum for a nail technician. Pay slips supporting the mortgage application were alleged to be false.
11.
Martin Rice, the previous owner of Eastleigh Road gave evidence. He saw Nguyen and another woman come to visit the house with a view to purchase. When she did, Nguyen asked her about the electricity supply and voltage. She also returned for a second viewing with Bui. On the third viewing Mr Rice thought all three were present. When there were problems with completion, he arranged to meet Nguyen and Bui.
12.
The prosecution alleged that Nguyen and Bui dishonestly obtained their mortgages to purchase the properties in which to grow cannabis commercially. Once the drugs were harvested, Nguyen and Quach were to move it from Eastleigh Road, using the van that Nguyen had hired. Mr Asteris, for the Crown, argued the cigarette butts, showed, firstly, that Bui was present when the cannabis was planted, and secondly, that Quach was going to help remove it. He also submitted the evidence was overwhelming that Westwood Road and Leigh Road were both additional cannabis factories.
13.
Nguyen gave evidence at the trial in which she insisted she was not involved in cannabis cultivation and all her financial and property dealings were above board. When something dishonest was pointed out to her, she tried to blame others, claiming she had relied upon them.
14.
Quach denied involvement in any conspiracy and claimed that Nguyen was trying to put all the blame on him. Bui gave evidence, during the course of which he did his best to distance himself from the drugs operation. He did not expressly blame his co-accused but it was implicit in some of things he said. He claimed, for example, it was Nguyen who assisted him on transactions like opening a bank account and buying Eastleigh Road.
15.
As far as the background of the three is concerned, Nguyen is now 39. She has been convicted three times for theft and once for forgery. Bui is now 27. He was of previous good character, it was said, save that when he decided to drive a car he did not seem to bother with having a licence or insurance.
1.
Quach is now 40. He was of good character albeit we note that he was an illegal immigrant and, as we have indicated, he has already been deported.
16.
The trial judge observed in his sentencing remarks that each had been convicted of a serious conspiracy. He described Nguyen as having not been honest at trial (something of an understatement) and he also referred to her previous convictions for dishonesty. He referred to the large sums of money that had gone through her bank accounts and he also noted that Bui had described her as "Miss Boss", which, in the judge's opinion, was an accurate description. However, he also observed that Bui seemed to be fond of expensive items and lived an extravagant lifestyle: for example he lost a BMW motorcar in a card game. The judge also noted the extent of Bui's involvement. He was the owner of Eastleigh Road, he found a tenant for it and he was significantly involved. The judge found that Nguyen may be his boss, but his role was more than that of simply doing as he was told. The judge also found that Quach was not just a “gardener” for the drugs. His involvement was to ensure the removal of substantial quantities of the harvested cannabis.
17.
The judge considered the value of the drugs actually found. The main crop of drugs when harvested would have amounted to about 6.66 kilograms of cannabis, made up of 3.32 kilograms of skunk and 3.33 kilograms of herbal cannabis. The potential wholesale value was between £10,000 and £15,000.
In rooms F and G (as they were described) police found a further 7.17 kilograms of skunk and 7.13 of herbal cannabis worth roughly £26,000.
18.
The judge not surprisingly described the operation as "substantial" and "very profitable". He could not, of course, estimate the quantities of drugs that had been produced in the other properties. He accepted that there may have been what he described as "shadowy figures" higher up the chain of production but said there was no evidence of any pressure being placed on any of the defendants before him.
19.
He also specifically addressed the issue of whether or not deterrent sentences were required. There was evidence before him of a substantial increase in the number of premises being raided and found to contain commercial cannabis factories. The figure grew from six in 2005 to 36 in 2006, and in the first half of 2007 alone, 29 such premises were discovered. The offenders were usually of Vietnamese origin. The judge bore in mind there is a closely linked and significant Vietnamese community in the area of Southampton. He found there was compelling evidence of a prevalent problem and a deterrent sentence was necessary.
20.
Miss Loke, on behalf of Nguyen, argued that the appropriate sentence for the offences of which she was convicted, after trial, should have been in the region 5 to 6 years. She referred the court to a number of authorities including
R v Liljerous & Alderson
[2004] 1 Cr App R(S) 81. She argued, that the level of sentences suggested therein for offences of this kind already takes account of an element of deterrence. She argued that even if a further element of deterrence was required in the present case, an additional 4 to 5 years was manifestly excessive. Further she argued the sentence of 10 years took no account of the appellant's personal mitigation: Nguyen is a single mother who until her arrest was caring for a 13-year-old daughter. She also reminded the court that the judge seems to have accepted that Nguyen was not at the very top of the organisation behind this conspiracy.
21.
Since the hearing below, the Vice-President Latham LJ, has delivered the judgment of this Court in the
R v Xu & Ors
[2007] EWCA Crim 329
. In
Xu,
the court heard seven appeals together in order to consider the appropriate level of sentencing in cases of large scale cultivation and production of cannabis. The Vice-President indicated that the court was not providing guidelines as such, but the court was prepared to indicate the bracket "within which some consistency of sentencing can be achieved." Latham LJ said this at paragraph 6:
"We consider that for those involved at the lowest level, the starting point should be 3 years before taking into account any plea of guilty and personal mitigation. This reflects the view of this court in KuangVan Nguyen
[2007] EWCA Crim 9
. For those who set up and control individual operations, the organisers, the starting point should be 6 – 7 years depending upon the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation: see Jupp [2002] Cr. App. R. (S) 8 and Liljerous and Alderson [2004] 2Cr App (R)(S) 81 at page 486. The starting point for managers will be somewhere between 3 and 7 years depending on the level of their involvement and the value of the cannabis being produced. Severer sentences may be appropriate for those who control a larger number or network of such operations."
22.
On that basis Miss Loke argued that the 10 years' imprisonment was substantially higher than the range suggested for even controllers and organisers of a large network of cultivations.
23.
As far as Bui is concerned Mr Badenoch argued that the sentence of 6 years was excessive. He submitted that Bui's role was at most a “manager” rather than organiser, and he was a manager acting on the orders of his boss, namely Nguyen. Mr Badenoch rightly reminded the court of the counts of which Bui was acquitted. This is Bui's first time in custody and Mr Badenoch argued he has substantial personal mitigation for example his claim for asylum. He claims to have fled Vietnam for fear of persecution. Further, his father died while he was in custody; he has lost contact with his mother and all his natural family and a warrant for his arrest has been issued against him in Vietnam because he practised Buddhism. We would comment in passing, it is clear to us from the way in which this trial was conducted that Mr Bui has not been exactly truthful over the years. Nevertheless Mr Badenoch argued that given the guidance provided in
Xu
and in other decisions put before us a sentence of 6 years was simply too high.
24.
As far as Quach is concerned Mr Chamberlain, in admirably succinct submissions, argued that the sentence of 5 years was excessive, given his role in the conspiracy. The evidence indicated that he was involved simply on one day, the day he was arrested.
25.
In his written submissions, Mr Chamberlain referred to the appellant's “good character”. We note, however, he was in the UK illegally. The highest it can be put, therefore, is that before he committed the present offences, he had no previous convictions in this country. Mr Chamberlain also drew support from the decision in Xu for his proposition that if Quach stood to be sentenced as a low-level worker, the starting point should have been 3 years.
26.
Looking at the conspiracy as a whole, in our judgment, this was a major operation. It clearly involved more than one centre of production, considerable quantities of drugs and considerable profits. The judge was right to emphasise that the factories produced, not just herbal cannabis but skunk which is a far more pernicious drug.
27.
Applying the guidance in
Xu
, Miss Nguyen stood to be sentenced as an organiser and one who controlled more than one operation. Three separate properties were identified as possible cannabis factories and she was substantially involved in all of them. She bought two of the properties in her own name and went to view Eastleigh Road. She provided £8,500 deposit for its purchase. She also had a bill relating to Eastleigh Road in her possession when arrested.
28.
The other two properties may not have contained cannabis by the time they were searched but they bore all the hallmarks of having been at one stage cannabis factories. Mr Asteris also invited out attention to the fact that the properties had all been bought with dishonestly obtained mortgages (which formed the substance of the other counts on the indictment).
29.
But, if we are to be true to the jury's verdicts, stood to be sentenced as a manager. He owned Eastleigh Road, where the drugs and his co-accused were found. He was plainly heavily involved in whatever was going on there and therefore, was not merely a low level worker. His was an important role and it was a role in a conspiracy which had a much larger ambit.
30.
Quach lived with the only proven organiser before the court, Nguyen, at her main home. He had no known means of income. He was plainly more than a mere gardener. He travelled with Nguyen from London to Eastleigh Road in the rented van, and he was going to be one of those responsible for transporting the fully matured plants from the house to the depot from which they would be supplied to the public.
31.
On the question of deterrence, the judge was, in our view, entitled to find this kind of offence was particularly prevalent in the Southampton area amongst the Vietnamese community. Thus, he was entitled to bear that in mind when fixing the appropriate levels of sentence.
32.
However, given the roles of the appellants we are persuaded that the sentences were excessive. Bearing in mind the guidance in
Xu
not available to the judge below, in our judgment, a sentence of 8 years for Nguyen would have been appropriate. We shall quash the sentence of 10 years' imprisonment on count 1 and substitute for it a sentence of 8 years. As far as Bui is concerned, we shall quash the sentence of 6 years and substitute for it a sentence of 5 years. Whether our decision makes any different to Quach we are not sure, nevertheless, we shall quash the sentence of 5 years on him and substitute for it a sentence of 4 years. To that extent and that extent alone the appeals succeed. | ```yaml
citation: '[2008] EWCA Crim 2746'
date: '2008-10-31'
judges:
- LADY JUSTICE HALLETT DBE
- MR JUSTICE FOSKETT
- HIS HONOUR JUDGE MORRIS QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2024] EWCA Crim 409
Case No:
202303085 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
Recorder Ashley-Norman KC
S20230313
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22 May 2024
Before :
LORD JUSTICE GREEN
MRS JUSTICE MAY
and
MRS JUSTICE YIP
- - - - - - - - - - - - - - - - - - - - -
Between :
DEWEY
Appellant
- and -
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms R Sadler
(instructed by
Olliers Solicitors
) for the
Appellant
Ms M Mostafa
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date : 7 March 2024
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 11.00am on 22 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to any of the complainants in this case shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as a complainant in that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act
Mrs Justice May :
Introduction
1.
This appeal, brought with leave of the single judge, concerns the proper terms of a Sexual Harm Prevention Order (“SHPO”).
2.
On 18 July 2023 the appellant pleaded guilty at West London Magistrates’ Court to four offences of making (ie downloading) or possessing indecent images of children and one offence of possessing extreme pornographic images. He was committed for sentence to the Crown Court. On 15 August 2023 in the Crown Court at Wood Green, the appellant was sentenced to a total of 12 months imprisonment suspended for 2 years with a rehabilitation activity requirement and unpaid work. Having been convicted of offences listed in Schedule 3 of the Sexual Offences Act 2003 the appellant was required to comply with notification provisions for a period of 10 years; in addition to this, the appellant will or may be included in the relevant list by the Disclosure and Barring Service.
3.
On the day of the sentencing hearing, shortly before the case was called on, the prosecution uploaded a draft SHPO to DCS. There followed exchanges between counsel as to the proper terms of such an order. There was no objection in principle to the making of one. It seems that counsel were unable to agree the final terms, accordingly the court at and after the sentencing hearing was required to decide the scope and terms of the final order.
4.
There is no appeal against sentence or any other ancillary order, the challenge is restricted to certain terms of the final SHPO.
Facts of the offending
5.
The National Crime Agency received reports that the appellant had uploaded indecent and prohibited images to his online storage. On 29 April 2022 at around 7am plain clothes police officers executed a search warrant at the appellant’s home address. On being told that the premises were to be searched he replied “I suspect you’ll need things such as electronic devices” and went on to identify and produce a number of digital devices including his mobile phone and two laptops, for which he provided the PINs and passwords as well as his email address and password. Ten devices were seized and analysed. On five of those devices police found 5 category A indecent images of children (offence 1), 41 category B indecent images of children (offence 2), 203 category C indecent images of children (offence 3), 78 extreme pornographic images (offence 4) and 1,523 prohibited images of children (offence 5).
Information at sentence and the terms of the SHPO
6.
The court below was provided with a schedule of representative images, which we have also seen. The schedule describes the content of images from each of the categories. The child images are all of male children.
7.
The appellant was aged 37 at sentence and of previous good character. He had been employed in a senior role at a political consultancy, but had lost that job as a result of these offences. He had also been elected a local councillor shortly before his arrest and had long-standing political interests, from all of which he resigned as a consequence of these offences coming to light. The appellant appears to have been open with his family from the moment of his arrest; we have seen the letters of support from his parents and his sister which were before the sentencing judge. His family refer to the appellant’s difficulties as a gay man with political ambitions and his increasing isolation during his late 20s and 30s. They draw attention to the steps he has taken to confront his offending behaviour and to re-set his life following his arrest for these offences, obtaining a place on an MA course at Bristol University, subject to confirmation after disclosure of these offences.
8.
A pre-sentence report (PSR) observed that “there is evidence of a lack of sexual intimacy, sexual pre-occupation and difficulties forming relationships and him socially isolating himself, which appears to have acted as a trigger to his use of the internet for sexual stimulation”. The author noted that the appellant was full of shame and remorse. He had voluntarily signed up to and completed a series of five sessions with “Safer Lives” and was attending one-to-one weekly counselling sessions to address his addiction to illegal images. In addition to his employment being terminated and resigning from his political positions he had given up the flat which he shared with others and had moved back home with his parents. As to the likelihood of further offending, the author of the report concluded that the appellant was “a medium risk of re-conviction for an internet sexual offence…and a low risk for a contact offence” Slightly confusingly, under a further heading “risk of serious harm” the author concluded that “based on the information in this report [the appellant] has been assessed as medium risk of harm to children, most likely teenage boys”.
9.
As appears from a transcript of the hearing, the recorder heard submissions from counsel on the need for a non-contact provision in the SHPO, deciding during the hearing that one should be included, relying on the “medium risk” assessment of harm in the PSR to which we have referred above. He left the remaining terms to be agreed between counsel; however, as appears from a widely shared side note on DCS, he later resolved two remaining issues administratively, after the hearing.
10.
The SHPO as finally ordered by the court restricted the appellant’s activities in the following terms:
(1)
Having any contact or communication of any kind with any child under the aged of 18, other than
(i)
Such as is inadvertent and not reasonably avoidable in the course of lawful daily life (such as being served by a young person in a shop,) or
(ii)
With the consent of the child’s parent or guardian who has been made aware of his convictions by Police and/or Social Services and this person has been approved by Police of Social Services.
(2)
Possessing or using any computer or other internet enabled device (including mobile phone and tablet PC), without Risk Management software approved by Police Visor Officers for the area which he lives, being installed. With the exceptions of:
(i)
A business/educational environment or Library, or an internet enabled device that does not have a search facility (such as some digital TV boxes), which must have been deemed suitable in writing by the managing Police Visor Officers,
(ii)
Any internet enabled device which has been approved in writing by the managing Police Visor Officers not to have monitoring software installed.
(3)
Possessing, owning or using a mobile phone other than a mobile phone that you have provided the telephone number and IMEI number of to your managing Police Visor Officer.
(4)
Downloading or using any password protected, hidden or disguised apps/programs that provide secret or secure storage for digital images on any Internet enabled device.
(5)
Possessing any device capable of capturing an image (moving, still, digital or otherwise) unless he makes his Police Visor Officer aware of the device and provides access to it on request for inspection.
(6)
Using any 'cloud' or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless you have prior written permission from your Police Visor Officer, and provides access to such storage on request for inspection by a police officer or police staff employee.
(7)
Refusing or hindering access to any device in the possession of the defendant or in premises where he is present, resides or otherwise controls on request by a police officer seeking to check his compliance with the terms of this order.
Grounds of appeal
10.
Ms Sadler appeared for the appellant on the appeal, as she did at sentence. We are grateful to her for her full and clear written grounds, supplemented by concise oral submissions at the hearing. Referring to the guidance on SHPOs given by this court in the case of
Parsons and Morgan
[2017] EWCA Crim 2163 she argued that certain terms of the SHPO ordered here were unnecessary and/or disproportionate and should be amended:
(1)
She submitted that the contact provision ought to be removed altogether, there being no evidence of the appellant having committed any contact offence, or even of having prepared to do so, and where the PSR concluded that he was “low risk” of committing that type of offence.
(2)
The term covering risk management software at paragraph (2) of the order ought to be replaced with a term of the kind preferred by the court in
Parsons,
as being a more manageable and proportionate way of affording the required level of protection.
(3)
It was said that paragraph (3) was otiose, given that all devices (which would include any mobile phone) would be covered by the requirements of paragraph (2) of the order so far as internet usage is concerned. Insofar as paragraph (3) covers calls or texts, such a provision was unnecessary as there was no evidence that the appellant had ever sought to contact a child.
(4)
As many regular programmes or apps now have password protected secure storage, paragraph (4) of the order preventing use of any such apps or programs was unnecessarily restrictive; Ms Sadler suggested that amending to require the appellant to provide police with details upon request would be a more proportionate requirement.
(5)
Ms Sadler questioned the necessity for a prohibition on possessing any image-capturing device, pointing to the absence of any evidence that the appellant had himself ever taken indecent images. The images on his devices had all been downloaded from the internet, from content uploaded by others.
(6)
The current formulation of the term relating to “cloud” and remote storage was subject to the administrative difficulties identified by the court in
Parsons
and should be amended as discussed by the court in that case.
(7)
Finally, a term which appeared to give the police powers of entry to any premises was too wide. A proportionate requirement was for the appellant to give immediate access to his devices for inspection upon request.
11.
Ms Sadler pointed out that her points at (1) to (7) above had all been reflected in the draft which she initially proposed at the time of sentence. That draft was itself based upon the terms currently indicated as suitable in the Judicial College Crown Court Compendium. She suggested that the last minute back and forth of drafts at the sentencing hearing had distracted the recorder, who had wrongly adopted the prosecution draft, which was not in accordance with the guidance in
Parsons
nor the proforma terms suggested in the Compendium.
12.
Ms Mostafa, for the crown, emphasised the extreme nature of the images and the length of time over which the appellant had pursued his interest in such material. She pointed out that relevant pages of the Compendium, as well as the
Parsons
authority, had been provided to the recorder in advance of sentence. He had read and considered them carefully, as the transcript makes plain. So far as the contact provision was concerned, Ms Mostafa pointed out that it was not unworkable or oppressive as it did not prevent any contact, but only required parents or guardians to be informed first. Referring to the extreme nature of some of the images, and the assessment of the PSR author that the appellant was a medium risk of harm to children, she submitted that the term was appropriately included. The risk management software was a necessary monitoring requirement and the term was drafted in such a way as to allow for it not to be installed in the event that it was considered by police to be unnecessary or overly burdensome. As to the phone, Ms Mostafa submitted that providing the required information was necessary and proportionate, bearing in mind the offences committed. The term as to password protected apps covered only secret or secure ie more inaccessible storage, which she maintained was a necessary and proportionate restriction. A ban on image capturing devices was likewise necessary. Seeking permission for the use of cloud or remote storage was not too onerous a requirement, she submitted. Finally, requiring the appellant simply to deliver up devices on request would not be sufficient, given the number of devices in his possession (10 at the time of his arrest); enabling the police to obtain access to his property would afford a further proportionate check.
Discussion and conclusion
13.
It is regrettable that the rules requiring service of a draft order not less than two business days in advance of the hearing, as provided for by Crim PR rule 31.3(1)(b) and (5) were not followed. The production of a timeous draft is a prosecution responsibility. We are quite satisfied that Ms Mostafa did all she could to prompt early production of draft terms, no doubt she also would have wished to see a draft before the morning of the hearing, yet there was no draft forthcoming from those instructing her until the day of sentence. The terms of restrictive orders will always require careful consideration which is why the rules require a draft to be produced in good time. The last-minute rush in this case precluded a sensible discussion between counsel before the hearing, both as to the need for certain terms (in particular the non-contact provision) but also as to the proper wording of terms, so as to ensure that necessary restrictions were also manageable and proportionate.
Contact restriction
14.
The touchstone when considering the precise terms of a restrictive order such as a SHPO is always necessity and proportionality. A SHPO may be imposed where it is necessary to protect “the public or any particular members of the public from sexual harm” – see section 346 of the Sentencing Act 2000s 103A and following of the Sexual Offences act 2003. The terms which are necessary in an individual case must be carefully considered and weighed against the facts of that case. Further, when considering what is necessary, it will be important to bear in mind the protection afforded to the public by the offender being on the Sexual Offences Register and subject also to the Disclosure and Barring Service. Any restriction beyond those necessarily involved in notification and disclosure/barring must be justified, not just as “appropriate” but as
necessary
. As was pointed out recently by this court in
Hanna
[2023] EWCA Crim 33 there will be cases, for instance where an offender has actively sought out contact opportunities with children, where a wide-ranging order will be necessary.
15.
We doubted whether a non-contact provision was necessary here, certainly in the wide terms of the SHPO which the court ordered. Having regard to the concerns expressed by Ms Mostafa, however, we decided to reserve judgment, asking counsel to go away and give consideration to the possibility of a more circumscribed non-contact provision, directed solely at limiting contact with teenage boys. We have been very much assisted by counsel’s response, which has highlighted a number of difficulties in arriving at the narrower limitation. On balance, we have concluded that it is not necessary or proportionate for a non-contact provision be imposed in the circumstances of this case. As Ms Sadler pointed out, despite extensive analysis of all 10 devices taken from the appellant police found no evidence of any attempt at contact with children, whether through internet chatrooms or in any other way, on the part of the appellant. The absence of any such evidence distinguishes this case from the facts of
Morgan
(the conjoined appeal heard with
Parsons
) where the court upheld a non-contact provision in a case involving indecent images offences. As we have already observed, the conclusions as to risk set out in the PSR here are on their face slightly contradictory, but it is nevertheless clear that the risk of this appellant committing contact offences was assessed as low.
16.
We bear in mind also the mandatory notification provisions, the involvement of the Disclosure and Barring Service and the other restrictions contained in the SHPO. Taken together, these requirements appear to us to afford sufficient protection in the circumstances of this case.
Restrictions contained in other terms
17.
The seriousness of the appellant’s offending was in the time over which he had downloaded indecent images of children, the number of devices which he used and the number and nature of Cat A images, showing gross abuse of teenage boys. An order which restricted and controlled his continuing use of internet-enabled devices was always going to be necessary and Ms Sadler has never suggested otherwise. Her concerns have been with the scope and wording of the restrictions which the prosecution proposed and which the recorder subsequently accepted.
18.
In
Parsons
the court updated the form of restrictions discussed and applied by courts following the earlier case of
Smith
[2011] EWCA Crim 1772. The court in
Parsons
emphasised that any necessary restriction must be in a form that is effective, clear and realistic, “readily capable of simple compliance and enforcement” (at [5]). To that end, the court sought and obtained expert evidence on internet access and business software in the form of two reports prepared for the purposes of the two conjoined appeals before them. The concern of the court was to consider not only what restrictions on the use of internet-enabled devices were necessary but further how they could sensibly and practically be achieved, bearing in mind the “realities of Police time and resource constraints” (
Parsons,
at [18]). Having considered the evidence and submissions in connection with it, the court in
Parsons
concluded that routine installation of risk management software and/or approval of such software by the police would be administratively unworkable; a more practical solution would be to require notification to the police of any device capable of accessing the internet, together with a ban on deleting internet history, a requirement to produce the device for inspection and to allow installation of risk management software if required (at [19]). The court went on to determine that a general restriction on cloud storage was too blunt an approach; the specific vice to be protected against was the deliberate installation of a remote storage facility without notice to the police ([25]) and the order should be fashioned accordingly.
19.
The terms of the SHPO which the court in
Parsons
finally determined as appropriate and necessary are helpfully discussed and set out in the current Crown Court Compendium volume 2 (Sentencing), at section 6.3. No evidence has been produced to us to suggest that technology has moved on in such a way as to require further updating at this time (see, however, the note at the end of this judgment). In the absence of such evidence we see no reason to depart from the form of the restrictions which the court in
Parsons
decided afforded the necessary protection, in practical and effective terms, in the cases before it.
20.
We do not consider that a term restricting the use of a mobile phone or an image capturing device is necessary: there is no evidence that the appellant has used his phone to communicate with a child and no evidence that he has ever sought to make or capture any image himself, despite his preoccupation with teenage boys having existed and associated downloading activity having occurred over many years (since 2008 in some cases). Necessary control over the use of such devices for downloading or viewing indecent images is in our view properly and proportionately achieved by the
Parsons
-type provisions regarding notification, production for inspection and manner of operating such devices.
21.
Finally we regard a term giving police power to enter any premises as unnecessarily wide and disproportionate. The other requirements, covering notification, production and inspection are sufficient. That is particularly so in the case of this appellant, who appears on his arrest to have rendered instant and entire compliance with police requests regarding his devices, as we have noted above.
22.
With grateful thanks to the joint endeavours of counsel, we conclude that the SHPO in its current form requires amendment. The appeal will accordingly be allowed to the extent of replacing the existing order with one in these terms:
“Thomas Dewey (TD) is prohibited, for a period of ten (10) years from:
(1)
Using any device capable of accessing the internet unless:
(i)
He has notified the police VISOR/Public Protection Unit team within three days of the making of this order of any devices already within his possession and three days of the acquisition of any such device thereafter;
(ii)
it has the capacity to retain and display the history of internet use, is at all times set so as to retain the history of internet use and he does not delete such history without permission of the VISOR/Public Protection Unit for the area in which he resides;
(iii)
he makes the device immediately available on request for inspection by a police officer, or police staff employee, and allows such person to install risk management monitoring software if they so choose.
This prohibition shall not apply to a computer at TD’s place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within three days of him commencing use of such computer, he notifies the police VISOR team of this use.
(2)
Interfering with or bypassing the normal running of any such computer monitoring software.
(3)
Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing.
(4)
Using any ‘cloud’ or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within three days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee.
(5)
Possessing any device capable of storing digital images (moving or still) unless he provides access to such storage on request for inspection by a police officer or police staff employee.
(6)
Downloading or using any apps/programs which provide a facility to store digital images, on any internet-enabled device, unless he provides access to such storage facility on request for inspection by a police officer or police staff employee.
(7)
Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.
23.
The appeal is allowed only to the extent of amending the terms of the SHPO as above; the sentence itself and all other orders remain unchanged.
24.
Finally, we note that, in the course of submissions on this appeal, Ms Mostafa for the prosecution informed us that in her recent experience she had come across at least 50 different forms of SHPO wording covering restrictions on internet-enabled devices. These variations are likely to reflect changes in technology, as devices and programmes advance and become more sophisticated. We had no expert evidence before us on this appeal, but having regard to the years which have passed since
Parsons
(which was decided in 2016), the time may now be approaching where the precise wording of proportionate and realistic restrictions needs to be addressed once more, with appropriate contemporary expert evidence.
Defence Costs Order
25.
During the course of finalising this judgment, Ms Sadler notified us of her intention to seek a Defence Costs Order (“DCO”). The court has power under s.19(4) Prosecution of Offence Act 1985 (“POA”) to order payment out of central funds of such sums as appear to it to be reasonable to compensate an appellant who is not in custody and attends court in relation to an appeal against conviction or sentence.
s.16A of the POA precludes the reimbursement of legal costs under a DCO (subject to certain exceptions which do not apply here), accordingly the amount which we are able to order is restricted to the costs of obtaining a transcript and of the appellant’s travel to attend the hearing. Proper receipts having been provided to us, we make a DCO in the total amount of £145.69. | ```yaml
citation: '[2024] EWCA Crim 409'
date: '2024-05-22'
judges:
- LORD JUSTICE GREEN
- MRS JUSTICE YIP
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2080
Case No:
200805154/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 7th October 2009
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE JACK
MR JUSTICE COOKE
- - - - - - - - - - - - - - -
R E G I N A
v
CRAIG DONALD MOORE
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr J Harrison
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE JACK: This is a renewed application for leave to appeal against conviction.
2.
The applicant, Craig Moore, was convicted on 11th July 2008 in the Liverpool Crown Court of offences against a young woman, GR, who had been his girlfriend. They were assault occasioning actual bodily harm, making a threat to kill, attempted rape and assault by digital penetration of the vagina. The first two offences related to an occasion in April 2007 and the later two to 19th May 2007.
3.
The applicant has prepared his own grounds of appeal. The main ground is that there were a number of inconsistencies in the prosecution evidence, in particular in the evidence of GR. These were considered by the judge at some length in the summing-up and he emphasised that, if the jury was not sure that GR was telling them the truth, the applicant must be acquitted. The summing-up was in this respect and overall very fair to the defence case. The jury must nonetheless have decided that they could accept the evidence of GR as to the offences, as is shown by their verdicts. That is something that was properly open to them and the applicant can have no complaint about it. It is not a case where the prosecution evidence was so weak by reason of inconsistencies that the case should not have been left to the jury.
4.
The second proposed ground is that the judge in the summing-up seemed to favour the defence case. As we have indicated, in respect of in particular of the inconsistencies of the evidence of GR, the judge was very fair to the defence. That was not to indicate that he considered that the applicant was innocent. It was for the jury to decide what they made of the evidence that they had heard.
5.
The third ground relates to the defendant's no comment interview, which followed an interview on a previous occasion when he had answered questions. The applicant had told the jury that he had not answered on legal advice. The judge directed the jury appropriately about this matter. The applicant now seeks leave to call his legal advisor to confirm the advice. That could have been done at the trial but might well have been ill advised because of the questions which the advisor might have been asked in cross-examination. It is too late now.
6.
The applicant also wishes to call his previous partner in support of his appeal, to give evidence as to telephone calls from GR. He has not provided any statement from her and to the relevant evidence she might give. This evidence would have been available at his trial. It is unclear whether it would have assisted the defence case. It cannot provide a ground of appeal.
7.
The applicant also complains that in some other proceedings, apparently involving alleged fraud for which he has been arrested, and which he states GR has admitted, she has said they were still in a relationship in April 2007. But the essential date, so far as that is concerned, is 19th May 2007. It appears from the evidence relating to the first two counts and April 2007 that their relationship was then continuing, though in difficulty: see the summing-up at page 15.
8.
The applicant lastly suggests that GR's phone records would show that on 19th May they were in a relationship and she had asked him to stay with her that night. The records could show what calls were made but they could not show their substance. There was in fact evidence at the trial as to telephone calls and text messages but it did not assist: see the summing-up at page 27D to E. There is nothing in this point.
9.
The renewed application is dismissed. | ```yaml
citation: '[2009] EWCA Crim 2080'
date: '2009-10-07'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE JACK
- MR JUSTICE COOKE
``` |
End of preview. Expand
in Dataset Viewer.
Dataset Card for JuDDGES/en-court-instruct
Dataset Summary
The data was acquired from publicly available judgments from the Court of Appeal (Criminal Division) (link) of England and Wales. These judgments are available in HTML format on the national archives website for online reading. They can be downloaded as XML or PDF files under the crown copyright license (link): and the Open Government license (see Appendix 6 in the paper). These licenses encourage the use and re-use of the information available under them freely and flexibly, with only a few conditions (link).
This dataset is designed for fine-tuning large language models (LLMs) for information extraction tasks and is formatted as instructions. For raw dataset see JuDDGES/en-court-raw.
Supported Tasks and Leaderboards
information-extraction: The dataset can be used for information extraction tasks.text-generation: The dataset can be used for text generation tasks, as the dataset is formatted as instructions.
Languages
en-EN English
Dataset Structure
Data Instances
Click to expand
{'prompt': '\nYou are extracting information from the court judgments.\nExtract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.\nPlease return the response in the identical YAML format:\n```yaml\ncitation: <string containing the neutral citation number>\ndate: <date in format YYYY-MM-DD>\njudges: <list of judge full names>\n```\n=====\n{context}\n======\n',
'context': 'Neutral Citation Number:\n[2009] EWCA Crim 276\nCase No:\n200706590/C2\nIN THE COURT OF APPEAL\nCRIMINAL DIVISION\nRoyal Courts of Justice\nStrand\nLondon, WC2A 2LL\nDate:\nWednesday, 28th January 2009\nB e f o r e\n:\nLORD JUSTICE TOULSON\nMR JUSTICE BEAN\nHIS HONOUR JUDGE PAGET QC\n(Sitting as a Judge of the CACD)\n- - - - - - - - - - - - - - - - - - - - -\nR E G I N A\nv\nABBAS HUSSAIN KHANANI\n- - - - - - - - - - - - - - - - - - - - -\nComputer Aided Transcript of the Stenograph Notes of\nWordWave International Limited\nA Merrill Communications Company\n190 Fleet Street London EC4A 2AG\nTel No: 020 7404 1400 Fax No: 020 7831 8838\n(Official Shorthand Writers to the Court)\n- - - - - - - - - - - - - - - - - - - - -\nMr S Csoka\nappeared on behalf of the\nAppellant\nMr A Bird\nappeared on behalf of the\nCrown\n- - - - - - - - - - - - - - - - - - - - -\nJ U D G M E N T\n1.\nLORD JUSTICE TOULSON: On 23rd November 2007 at Kingston-upon-Thames Crown Court before Her Honour Judge Matthews QC, Abbas Hussain Khanani and his son, Ameer Khanani, were each convicted of entering into a money laundering arrangement, contrary to\nsection 328 of the Proceeds of Crime Act 2002\n. Each was given leave to appeal against conviction by the single judge on limited grounds. Mr Khanani (Junior) has not pursued his appeal and we are therefore concerned only with the appeal of Mr Khanani (Senior). That appeal has proceeded on a single issue but to see how the issue arises it is necessary to give some more general account of the prosecution\'s case.\n2.\nIn a nutshell, the prosecution case was that the appellant and his son were responsible for the United Kingdom operation of a Hawala banking network and that they utilised that arrangement to facilitate the acquisition of criminal funds on behalf of the appellant\'s principal in Pakistan. There is nothing unlawful or irregular in itself about a Hawala banking system. The judge and jury were assisted by admissions made by both parties about the nature of such a system. We quote from the admissions:\n"Hawala is a method by which funds can be transferred between people or companies, often across international boundaries. A particular Hawala system will generally be built upon links based upon family, tribe or ethnicity. Transfers of Hawala funds are facilitated through an informal system operated by active Hawalader Brokers, who execute\nswaps\nof\nvalue\nor transfers between themselves to settle debts, thus reducing the amount of administrative records and avoiding local controls. The system is built both upon trust and on a history of success.\nIn 2005 the Court of Appeal in Hussain and Ali\n[2005] EWCA Crim 87\n21 & 22 paragraphs described the detail of the process as follows:\n\'21. Hawala banking is an arrangement by which individuals (or intermediaries who have collected money from individuals) deposit money, usually in the form of modest amounts of cash, with a Hawalader in, for example, the UK to be remitted to beneficiaries abroad, commonly in the country from which the remitters\' family originate, for example Pakistan. The UK Hawalader will have a Hawala contact in Pakistan who will pay a sum in rupees, at a rate of exchange which may have been agreed with the remitter in advance. The payment will commonly be made more quickly, more cheaply and with less formality than any corresponding service that might be available through the medium of the commercial banks. There is commonly a family relationship between the UK Hawalader and his contact in Pakistan which enables the transaction to be completed with a greater reliance on trust than is necessary in other commercial financial dealings.\n22. For ordinary Hawala there must be records to show the identities of the individuals from whom the money had originally been collected in the UK and of those to whom it was ultimately to be paid in Pakistan.\'\nIt is not inconsistent with the Hawala process that a Hawaladar or his agent in the UK should collect a stock of cash from different customers and use it to compete entirely separate transactions on behalf of a Pakistani Hawaladar.\nHawala banking represents (for the customer) an alternative to the use of the conventional banking system, but a Hawala banker in the UK is subject to exactly the same legal obligations as a conventional banker."\n3.\nThe case against the appellant was that very large sums of cash were collected, generally by the appellant\'s son in an unorthodox way and for which the appellant and his son did not keep proper records.\n4.\nDuring the weeks leading up to the search of the appellant\'s premises there were surveillance activities, as a result of which the appellant\'s son could be seen going about by car and collecting what the prosecution said were transfers of cash in the street or outside an underground station, in peculiar circumstances, that is to say, that the transfers were carried out swiftly and without the monies being counted or a receipt given.\n5.\nOn 31st August 2004 customs officers searched the home address from which this business was conducted. The appellant himself was at this stage in Pakistan having flown there a few days earlier. Cash books and ledgers were found. The records were mainly in the appellant\'s handwriting.\n6.\nThe records, which did not go back before 2004, had some striking features about them. The true names of many depositors were not recorded. The amounts recorded as received were in many cases shown as 1 per cent of the true amount which could be deduced from other documents. There was, for instance, an entry recording £1049.20 but which from other evidence could be shown to relate to a receipt of £104,920. On the day before the police search, officers had observed a Dutch national, named Floor, enter the United Kingdom from Amsterdam. He flew into Heathrow and checked into a hotel. He checked out of the hotel on the following morning and took a taxi to Leyton Underground station. There he met the appellant\'s son, who was in a Fiat car. Floor put a brown holdall on the back seat of the car. At that point both men were arrested. The holdall contained £140,000 in bank notes. Floor was granted bail but later absconded. Although the appellant himself was out of the country, the prosecution relied on this incident not only against the appellant\'s son but also more generally as showing the nature of the business at that time. If the £140,000 was honest money, there were much simpler ways for it to have been moved than by Floor flying to England, taking a taxi to East London and handing it over in a holdall to the appellant\'s son outside an Underground station.\n7.\nAs an indication of the scale of the appellant\'s activities, over £2 million in cash was received in a 2-month period from the beginning of July to the end of August 2004. The money received by the appellant was not banked but kept in cash at his home. At the time of the police search the cash found there amounted to over £90,000.\n8.\nThe prosecution\'s case was that these features taken together provided ample material from which a jury might properly infer that the appellant was providing a service to criminals in possession of large sums of cash who wanted it processed in a way which obscured their identity and left no documentary trail that would lead back to them.\n9.\nThe sole issue pursued on this appeal concerns the dates within which the offence charged under\nsection 328\nwas alleged to have been committed. Whereas in many cases juries are told that precise dates in an indictment are immaterial, that was not the case here. For the appellant to be guilty as charged, the offence must have been committed not earlier than the indictment period, because this was the effect of the statutory instrument bringing the relevant section into force. If the conduct which constituted the offence had begun prior to the indictment period, it would not have been criminal and therefore prosecution for it would contravene the principle against imposing retrospective criminal liability.\n10.\nThe offence is defined as follows:\n"A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."\nThe way in which the prosecution presented its case was that the relevant "other person" for the purposes of this case was the appellant\'s principal in Karachi. But the prosecution did not have to prove any\nmens rea\non the part of that other person. Under\nsection 328\none may have an arrangement between an agent, A, and principal, P, which in the mind of P is at all times lawful, but which at some stage is used by A to facilitate the acquisition on behalf of P of property which is criminal and is known or suspected by A to be criminal. If so, at that point A becomes guilty of an offence under the section, albeit that P is not guilty. It all seems rather technical but this flows from the various ingredients of the offence.\n11.\nThe judge in due course gave the jury written directions in which she correctly directed the jury that an offence would be committed under the section if and when three separate elements all requiring to be proved were established. Those three elements were these: first, there must be money which the jury was sure represented the proceeds of crime, directly or indirectly and in whole or in part. Secondly, the defendant must enter into or become concerned in an arrangement in relation to that money, namely one which he knew or suspected would facilitate its acquisition, use, control or retention. Thirdly, the jury had to be satisfied that the defendant knew or suspected that the money represented the proceeds of crime. No offence would be committed unless and until all three ingredients were established. One could therefore have an arrangement which was initially intended to be lawful, and which remained lawful in the mind of P, but under which A committed an offence contrary to\nsection 328\nby utilising that arrangement for the acquisition on P\'s behalf of property which was criminal and he knew to be criminal. At that stage he would then become concerned in an arrangement prohibited by the section.\n12.\nThe appellant gave evidence to the effect that in 2001 to 2002 he entered into an arrangement with a respected businessman who carried out a money exchange business in Karachi, and that thereafter the money collecting that he did in the United Kingdom was done pursuant to that arrangement and for the benefit of that principal. The appellant denied any suspicion at any stage that the monies which he was instrumental in receiving and passing on had a criminal source. The jury plainly disbelieved him on that. He also maintained that the nature of his arrangement with his Pakistani principal was the same throughout the material period. The judge summarising his evidence on this point said as follows:\n"He told you that once the system had started it didn\'t operate differently between 2002 and 2004, though, he said, by 2004 the operation was less active and the amounts that were going through were smaller. He said, \'From the time I started this arrangement with Altaf Khananai I never had any suspicions. He had been introduced by someone I knew. He was a credible businessman. The company of Khanani and Khalia enjoyed an excellent reputation and I thought the cash came from the money service bureaux and I had no reason to doubt this. I never considered or wondered if it came from crime.\'"\n13.\nAfter the appellant had given his evidence Mr Csoka, who appeared for the appellant below as he has done before this court, submitted that the judge ought to withdraw the case from the jury because on that evidence the arrangement, whatever it had been, had begun before the indictment period, which itself was from 23rd February 2003 to 1st September 2004. Therefore, if the prosecution were right in their arguments about the nature of the arrangement, the offence under\nsection 328\npredated the indictment period and predated the time when such an arrangement became criminal. The judge rejected that submission. Mr Csoka has renewed it before this court.\n14.\nIn our judgment the argument contains a fallacy. As already stressed, the offence could only be committed when the prosecution were able to show that all the necessary ingredients of that offence were established. They therefore had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed.\n15.\nDuring the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante dated the indictment period, but it by no means follows that criminal property was being processed under it. As to that, there simply was no evidence other than the broad assertion by the appellant that the nature of the arrangement was the same. But this was not, we stress, a case in which the appellant himself was putting forward material to show the receipt of criminal property at an earlier date. Quite the reverse. Moreover, even if the jury were to disbelieve the appellant\'s evidence about being in honest receipt of substantial sums, prior to the indictment date, that did not mean that there was evidence that he had received criminal sums prior to the indictment date. As Scrutton LJ we believe once commented, if a man says that he did not go to Paris and is disbelieved, that is no evidence that he went to Paris.\n16.\nMr Csoka went further. He submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge.\n17.\nFinally, Mr Csoka criticised the way in which the judge summed-up this issue to the jury. In our judgment, there is no substance in that criticism and accordingly this appeal is dismissed.\n18.\nMR BIRD: My Lords know that there is an earlier judgment of this court on the interlocutory appeal. There was a ruling given then in relation to publicity. Now there is going to be no more trial for the Khananis, it seems that the ruling on publicity can be lifted.\n19.\nLORD JUSTICE TOULSON: Have you anything to say about that, Mr Csoka?\n20.\nMR CSOKA: No, my Lord.\n21.\nLORD JUSTICE TOULSON: We agree.',
'output': "```yaml\ncitation: '[2009] EWCA Crim 276'\ndate: '2009-01-28'\njudges:\n- LORD JUSTICE TOULSON\n- MR JUSTICE BEAN\n- HIS HONOUR JUDGE PAGET QC\n```"}
Data Fields
| Feature name | Feature description | Type |
|---|---|---|
| prompt | The prompt template provided for extracting information from the judgement. It contains placeholder {context} for the judgement content. |
string |
| context | The full text content of the judgement | string |
| output | The extracted information in YAML format based on the provided context | string |
Data Splits
| split | # samples | % samples |
|---|---|---|
| train | 3365 | 62.72 |
| test | 2000 | 37.28 |
Dataset Creation
For details on the dataset creation, see the paper TBA and the code repository here.
Curation Rationale
Created to enable cross-jurisdictional legal analytics.
Source Data
Initial Data Collection and Normalization
Utilize the raw dataset
JuDDGES/en-court-raw.First, we identified information from metadata which is contained in text of the judgement. Therefore, the following fields were selected for extraction as targets:
citationdatejudges
Data filtering: In order to ensure high quality of the dataset, we performed preprocessing procedure, as described below.
- Removal of bad judgements - if judgement text is too short which we reveal to correspond with missing content it's removed.
- Dataset extraction - extracting date from judgement content with regular expression.
- Removing examples wherein attributes are not a substring of judgment text - due to inherent errors in acquired data, some attribute values might be mistyped; hence, we filter them out. (Data cleaning removes 685 examples, and the instruction dataset finally consists of 5365 examples.)
Generating instructions: After cleaning we generate instructions for information extraction. Specifically, we define same prompt for each document, as follows:
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: '''yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ''' ===== {context} ======where
{context}is replaced by text of each judgement.
Who are the source language producers?
Produced by human legal professionals (judges, court clerks). Demographics was not analysed. Sourced from public court databases.
Annotations
Annotation process
No annotation was performed by us. All features were provided.
Who are the annotators?
As above.
Personal and Sensitive Information
Data comply with GDPR and The Data Protection Act 2018 (DPA). (See more in Section 3.4 in the paper.)
Considerations for Using the Data
Social Impact of Dataset
[More Information Needed]
Discussion of Biases
[More Information Needed]
Other Known Limitations
[More Information Needed]
Additional Information
Dataset Curators
[More Information Needed]
Licensing Information
We license the actual packaging of these data under Open Government Licence https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/
Citation Information
[More Information Needed]
Statistics
- Downloads last month
- 38
Homepage: TBA
Homepage: TBA
Repository: https://github.com/pwr-ai/JuDDGES
Repository: https://github.com/pwr-ai/JuDDGES
Paper: TBA
Paper: TBA
Point of Contact: [email protected]; [email protected]; [email protected]
Point of Contact: [email protected]; [email protected]; [email protected]
Size of downloaded dataset files:
74.3 MB
Size of the auto-converted Parquet files:
74.3 MB
Number of rows:
5,365