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Richard Padley
Richard Padley

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Criminal Law Updater – Early 2017 Edition: Criminal Procedure, Confiscation and Sentencing

With Christmas done and dusted the higher courts started work in 2017 with matters that had continued to be explored in 2016 – inconsistency in jury verdicts.

In R v Abnett and Jeleru [2017] EWCA Crim 41 the Court of Appeal was asked to consider whether a clear and agreed inconsistency in verdicts was sufficient to found an appeal in this case. Both Appellants had been convicted or importing Class B drugs but acquitted of a further count of importing Class A drugs. Both sets of drugs had been imported into the UK in the same vehicle in different boxes marked in the same way. The Appellants were drivers of two vehicles, one of which had carried the drugs into the UK, and the other on to which the drugs were to be loaded. The issue for the jury, and on which they convicted, was whether the drivers were party to an agreement to knowingly import the drugs and did something significant to further the importation of the boxes intending that it not be discovered by the authorities.

The Court of Appeal considered the circumstances raised an oddity which did not appear to have a strictly logical explanation. However, applying the Court of Appeal decision in Fanning it was considered that a logical inconsistency does not always necessitate the quashing of convictions. However if no reasonable jury applying their minds to the facts could have arrived at the conclusion then the convictions could not stand. The burden of showing this will be on the Defence.

As the Judge at first instance in this appeal had given the direction to the jury that they should consider both counts in respect of both Defendants separately it was not attractive for the jury in appeal to be criticised as they had clearly acted as instructed to do so. Secondly the Court of Appeal considered that the issue of knowledge of the separate drugs allowed a humane escape route for the verdict of the jury.

Consequently, as not every case of logical inconsistency will require interference by the higher court, the verdicts were considered safe and the appeals dismissed.

The extension of time for confiscation proceedings to be completed was considered further in R v Halim [2017] EWCA 33. The prosecution applied to the Court of Appeal against the ruling of HHJ Gower QC in which he had refused to retrospectively find exceptional circumstances within the meaning of s14(4) POCA and consequently dismissing the prosecution’s application for a confiscation order.

The Court of Appeal reviewed previous authorities on this matter, whilst doubting that it was possible or desirable to provide an all-embracing definition of what may amount to exceptional circumstances. They noted that in coming to a conclusion of whether exceptional circumstances applied the court will need to look at the entire history of the proceedings to see whether circumstances exceptionally justify a postponement. The Court should take an approach which keeps in balance the importance of the prompt resolution of the confiscation proceedings whilst acknowledging that practical difficulties of timing and timetabling may cause issues.

The Court of Appeal outlined that there was no unfairness to the defence in adjourning the proceedings, and if there was prejudice it could be remedied in costs. Consequently in the circumstances it granted the appeal and directed the Crown Court to commence proceedings afresh.

The old civil law saying goes ‘let the buyer beware’ but a recent Court of Appeal case in sentencing shoplifting suggests that the habitual shoplifter who elects Crown Court trial should also be very aware of the potential consequences for sentencing if things don’t work out. The matter of Jackie Chamberlain [2017] EWCA Crim 39 (in which our Ben Douglas Jones appeared for the Crown) dealt with an individual who had shoplifted £78 of clothes, concealing the items in her bag and covering the tags with foil to prevent detection by security sensors. A not too unfamiliar set of factual circumstances practitioners will note.

Following a guilty plea at Woolwich Crown Court (having earlier elected Crown Court trial) she was sentenced to 2 years immediate imprisonment. Her previous convictions consisted of having been convicted of over 100 offences, about 80 for theft. She had received a range of disposals during her criminal activity history.  In sentencing at first instance the Judge had great regard to R v Thomas [2013[ 2 Cr App R (S) 86 and concluded that the time had come for the appellant to understand the consequences of her actions. The Appellant was a persistent offender, and so applying Thomas, although this was a relatively minor offence as other avenues of sentencing had been unsuccessfully pursued the lower court felt there was no alternative option but custody.

It was noted upon appeal that the maximum for an individual who submits themselves to summary trial is 6 months. But this does not apply to those that elect. Consequently the limitation did not apply. Although acknowledging that the sentence imposed went well beyond the sentencing guidelines, in the case of an individual with clear propensity to act in the way they have now subsequently being further convicted of and other methods of sentencing have failed, applying the underlying principles of sentencing the Appellant could not complain of immediate custody. However they did allow the appeal to the extent that ‘it is hard to envisage that in most such cases a sentence of more than 12 months before credit for plea will be appropriate’ and therefore, following 25% credit, reduced the sentence to 9 months.

The importance of reducing a basis of plea to writing, and have it signed by both advocates, was reiterated in the recent appeal of R v Mula and others [2017] EWCA Crim 32. In appealing sentences for conspiracy to kidnap, the Court of Appeal outlined (reiterating previous guidance given in Underwood) that it was important for certainty to be established in the sentencing exercise. Consequently a written and signed basis allowed for satisfaction that a plea was unequival, on clear factual circumstances which everyone could understand. Where there is no signed basis of plea confusion can reign. The absence of a written basis in this appeal was not fatal to the appeal, but it substantially weakened its merits. Although not a requirement, the Court reiterated the importance to practitioners of the good practice of reducing the basis to writing.

Posted by Richard Padley on 06 March 2017 at 10:41