Leading case on abuse of process on appeal after the coming into force of s.45 of the Modern Slavery Act 2015
Ben Douglas-Jones KC, instructed by Philippa Southwell of Southwell and Partners, appeared for the appellant in the case of R v AFU [2023] EWCA Crim 23. The Appellant was a victim of human trafficking who had been kidnapped in Vietnam, trafficked to the UK in debt bondage, tortured and put to work in a cannabis house.
The Court agreed with Ben that the prosecution had been an abuse of process and overturned the Appellant’s conviction for conspiracy to produce cannabis.
The Court reviewed the principles of the UK’s duty in England and Wales not to prosecute victims of human trafficking and slavery (VOTs) where (1) they have a credible defence under s.45 of the Modern Slavery Act 2015 (so that the evidence limb of the Full Code Test is not made out) or (2) their criminality or culpability has been extinguished or diminished to a point where prosecution is not in the public interest, following R v AAD [2022] EWCA Crim 106; [2022] 1 WLR 4042.
Significantly the case confirmed that the usual principle of finality does not apply in guilty plea cases where the defendant is a VOT.
An appellant’s conviction may be safe, applying the Dastjerti [2011] EWCA Crim 365 checklist (see [9]) to Boal principles (see R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 at [154] to [180] and Archbold (2023 ed) at 7-43 to 7-46). I.e. in a case where the criminal act is committed by a VOT, where a defendant (1) has been correctly advised about a possible section 45 defence and (2) pleads guilty voluntarily following that advice, his/her conviction may be safe on traditional principles.
However, even if the conviction is safe on traditional appeal grounds, (1) where the State’s Article 4, ECHR operational measures duties have not been complied with; and (2) an appellant has not been identified as a possible credible VOT when they are a VOT, their conviction will be unsafe if (a) their trafficking circumstances have not been properly investigated; (b) had they been properly investigated the appellant would have been shown to have been a VOT; and (c) the CPS would or might well not have maintained the prosecution on evidential or public interest grounds.
Anonymity is to be considered by reference to AAD at [3] and [4] and summarised in Human Trafficking and Modern Slavery Law and Practice (2nd ed) (at 8.103-8.108).
R. v Kadir (Abdul) [2022] EWCA Crim 1244 | [2022] 9 WLUK 159 | [2023] 1 Cr. App. R. 4
A judge presiding over a Crown Court trial could permit a witness who was outside the UK to give evidence via WhatsApp video call if satisfied that it was in the interests of justice. That was the case under the Criminal Justice Act 2003 s.51, as temporarily modified during the COVID-19 pandemic, and also under the version of s.51 which had been in force since 28 June 2022.
R. v BYA [2022] EWCA Crim 1326
Ben appeared for BYA. Her conviction, entered following a plea of guilty to possessing a false identity document with intent, was unsafe. Following her conviction, it emerged that there were conclusive grounds for believing that she was a victim of human trafficking. She had been exploited in three jurisdictions in enforced prostitution - raped daily. It was clear that she had committed the offence in an attempt to escape her traffickers and that her culpability was therefore considerably diminished. Had the prosecution given adequate consideration to whether she might have been a victim of trafficking, it might well not have prosecuted her.
R. v Elmi (Abdihakim) [2022] EWCA Crim 1428
Ben, leading Andrew Johnson, appeared for the Crown in this leading case on the scope of the s.31, Immigration and Asylum Act 1999 “refugee defence” for document offences. The appellant contended, relying on FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696, [2010] 1 W.L.R. 2545, [2010] 6 WLUK 421, that s.31 should be construed to include those granted humanitarian protection within the definition of refugees and, relying on Adimi, to include presumptive refugees. However, the Crown correctly argued that s.31(6) defined "refugee" by reference to the Convention and did not allow a more expansive definition, emphasising the distinction between the two concepts in the Immigration Rules para.339C(ii), FA (Iraq) and Adimi considered. It was not possible to construe s.31 as if it applied to persons with either sort of protection. The defence only applied to refugees but, consistent with its statutory purpose, could be advanced at trial by those who were at that time presumptive refugees. It was for the jury to determine whether the defence was made out (see paras 45-49 of judgment).
R. v Nguyen (Hanh Tuyet) [2022] EWCA Crim 1444
Barristers’ strike: leading case on approach on sentencing in absence of Counsel. Ben, leading Emma King, appeared for the Crown in this appeal. The Appellant’s barristers did not appear at her sentence. One was on holiday. The other was taking part in the Criminal Bar Association days of strike action. Ben urged the Judge to adjourn the sentence of the Appellant. He declined to do so. The Court of Appeal held he had erred in doing so. The Court of Appeal said, “The efforts made by the judge and prosecuting counsel to assist the appellant at [the sentencing] hearing were praiseworthy”.
R v BXR [2022] EWCA Crim 1483
Ben appeared for the Appellant, a Nigerian victim of human trafficking, who had used a false passport to obtain employment prior to the coming into force of the Modern Slavery Act 2015. He had pleaded guilty to using a false instrument and fraud without telling his legal advisers that he had been trafficked. The Appellant had been persecuted and subjected to extreme violence and abuse for being of gay orientation in Nigeria and subjected to sexual violence and forced labour and servitude in the UK. He had been subjected to multiple rape and had later been put through a process of gay conversion “deliverance”.
The court admitted fresh evidence of the true position and found that the nexus between the trafficking and use of the passport reduced the man’s culpability to a very low level and that had the CPS known the facts, it would very likely not have prosecuted him. His convictions were overturned.
R v AAD, AAH and AAI [2022] EWCA Crim 106
Ben appeared for the Crown in this case, leading Andrew Johnson. The Court decided that anonymity in appeals against convictions of alleged victims of trafficking who commit criminal acts is to be decided as per Hallett LJ’s approach in R v L; R v N [2017] EWCA Crim 2129; i.e. in principle, it is desirable for the Court of Appeal (Criminal Division) to follow the practice of providing anonymity protection to an appellant in cases raising asylum and international protection issues, bearing in mind (1) the United Kingdom’s international obligations and aim to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings; but also (2) other important issues, such as the principle of open justice in criminal trials and appeals, and that anonymity orders should only be granted when they are strictly necessary.
The Registrar invited the Court to give guidance. It proceeded to do so as follows:
R v Bani [2021] EWCA Crim 1958; [2021] 12 WLUK 457
Ben appeared for the Crown, leading Andrew Johnson. This is the conjoined special court appeals of four RHIB (rigid hull inflatable boat) cases where migrants have been piloted across the English Channel and intercepted at sea.
Four issues of importance derive from this judgment, I suggest:
R v Hunter and Smith [2021] EWCA Crim 1785; [2021] 11 WLUK 384
Court considered components of fraudulent trading, Companies Act 2006, s.993(1), in the “Ed Sheeran” ticket touting case where profit was made by reselling tickets for sporting and cultural events, in breach of ostensible restrictions imposed by event organisers. The s.993(1) offence was not subject to limitations of conspiracy to defraud; no requirement for prosecution to prove intention to deceive. Where criminal allegation is founded on breach of civil law, the judge must rule on the breaches before the jury decides the criminal issues. The case involved the “fairness” and enforceability under the Consumer Rights Act 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity, the status in law of a “ticket” and the scope, effect and operation of the doctrine of “equity’s darling”.
R. v Douglas (Jerome) [2021] EWCA Crim 1193; [2021] 4 W.L.R. 126; [2021] 7 WLUK 513; [2022] 1 Cr. App. R. 5
An important appeal considering the doctrine of autrefois convict, where prison governors and adjudicators act unlawfully in prison disciplinary proceedings; nullities of decisions; and the purview of a judge’s power under s.45(4) of the Senior Courts Act 1981.
Human Trafficking - A Landmark Decision
R v Brecani [2021] EWCA Crim 731
Ben, leading Rebecca Austin, instructed by the CPS Appeals and Review Unit, appeared in this landmark decision which profoundly affects the law of evidence and criminal procedure in all cases in which a possible victim of trafficking or slavery faces a criminal trial.
In a special court sitting of the Court of Appeal, the Lord Chief Justice, the Vice President of the Court of Appeal Criminal Division and Mr Justice Jeremy Baker accepted Ben’s argument that a conclusive grounds decision made by a Single Competent Authority appointed under the National Referral Mechanism and signed by a caseworker was not admissible as evidence in criminal proceedings in determining whether a defendant was a victim of modern slavery under the Modern Slavery Act 2015 Pt 5 s.45(4).
Caseworkers were not experts in human trafficking or modern slavery and could not give opinion evidence in a trial on the question whether an individual was trafficked or exploited.
The Court overturned the Divisional Court decision of DPP v M.
The Modern Slavery Act 2015 s.45 - Retrospective effect?
R v CS [2021] EWCA Crim 134; [2021] 2 WLUK 68
In a case presided over by Thirlwall LJ; Holgate and Johnson JJ, Ben, leading Andrew Johnson, argued that The Modern Slavery Act 2015 s.45 did not have retrospective effect. There was no factor which positively indicated that Parliament intended the defence under s.45 to be available in respect of offences committed by victims of trafficking before the Act came into force. The Court agreed. This case defined the offences to which s.45 applied by reference to the date of the criminal act.
H v DPP [2021] EWHC 147 (Admin); [2021] 1 W.L.R. 2721; [2021] 1 WLUK 352; [2021] 1 Cr. App. R. 23; [2021] Crim. L.R. 400; [2021] A.C.D. 41
The Magistrates’ Court Act 1980 - An Important Case
This was an important case which consolidated and explained the two lines of authority concerning s.142 of the Magistrates’ Court Act 1980.
Ben appeared for the DPP.
In this case, the Lord Chief Justice and Mr Justice Bryan agreed with Ben’s argument that it was not permissible to use the Magistrates' Courts Act 1980 s.142 to reopen a case where a defendant had pleaded guilty in the magistrates' court and been sentenced in the Crown Court but later discovered that a defence could have been advanced. The remedy available to him was an application to the Criminal Cases Review Commission. Section 142 was designed to correct mistakes made in the magistrates' court which only affected its own determinations, and not to set aside sentences imposed in higher courts.
SCA NRM Decisions - A Significant Case
DPP v M [2020] EWHC 3422 (Admin); [2021] 1 W.L.R. 1669; [2020] 12 WLUK 196; [2021] 4 C.L. 54
This was a highly significant case concerning whether or not National Referral Mechanism decisions made by the Single Competent Authority where possible victims of trafficking face criminal charges are admissible at trial.
Ben appeared for the DPP.
The Divisional Court rejected his argument that such decisions were inadmissible as potentially ultracrepidarian, untested, hearsay/multiple hearsay evidence, which was inadmissible on Hollington v Hewthorn [1943] 1 KB 587 principles, and which would often be self-serving.
In Brecani in a Special Court constitution of the Court of Appeal Criminal Division, the Lord Chief Justice, the Vice President of the CACD and Mr Justice Jeremy Baker overturned DPP v M, holding that Ben’s argument was and had been correct.
Transforming The Landscape For Restraint Applications In England and Wales
R v Luckhurst [2020] EWCA Crim 1579; [2021] 1 W.L.R. 1807; [2020] 11 WLUK 309; [2021] Lloyd's Rep. F.C. 53; [2021] 4 C.L. 65
Ben, leading William Douglas-Jones, instructed by Ben Henry of JRB Solicitors, appeared for the appellant in this case which transforms the landscape for restraint applications in England and Wales.
This case considers the scope of permissible living expenses and legal expenditure under a Restraint Order pursuant to section 41 of the Proceeds of Crime Act 2002 (“the Act”). The appeal arises following HHJ Carr’s decision to refuse an application to vary a Restraint Order made against the Appellant in 2017.
It addresses fundamental points of principle in relation to:
Reasonableness
Section 41(3)(a) allows restrained funds to be made available for reasonable living expenses and reasonable legal expenses. The ‘legislative steer’ at section 69(2) requires the court to promote the preservation of assets so as to render them available to meet a Confiscation Order. The decision as to what is reasonable is fact sensitive, relating to a defendant’s particular circumstances.
At paragraph 33 of the judgment, the court provides a non-exhaustive list of potentially relevant factors to consider when deciding reasonableness. The factors will be of importance to all practitioners dealing with the issue of reasonableness or otherwise of living expenses. These include:
In a significant departure from status quo, the judgment moves away from the previously test that a defendant under restraint can maintain pre-restraint expenditure provided he does not enjoy a “Rolls Royce lifestyle”. This trite term, which has commonly been used since Re: D and D (1992) (Unreported) is no longer of application. Instead, the court must address its mind to a more objective standard of reasonableness, taking account of the factors above, in accordance with the legislative steer.
Lexi Holdings
The Court found that the fact that living expenses are incurred on unsecured credit does not of itself prevent them being permissible under a Restraint Order. Many ordinary and reasonable living expenses are incurred on unsecured credit (e.g., food and clothes purchased with a credit or debit card). Living expenses are not to be precluded merely because they are incurred by way of unsecured credit. Renting a car may constitute a reasonable living expense. A PCP is a common method of buying a car on financing terms. It is for the court to determine whether renting a car in the circumstances is a reasonable living expense permissible under the Act.
The judgment will have significant effect for those practitioners who deal with exceptions to restraint orders and the approach to prima facie third party debts which are in fact structured facilities for the payment of living expenses in arrears.
Other Available Assets Principle
It is well established that in civil Freezing Order cases, where a defendant has assets available to meet living or legal expenses which are not caught by the restraint, he is expected to resort to those funds as he will not be allowed to draw on the restrained assets. This is known as ‘the other assets principle’. The court was of the view that this principle also applies to restrained funds under section 41 of the Act.
Where living expenses cannot be shown to be reasonable, or where there are other available assets (to whomsoever they may belong), funds will not be made available from the restrained assets.
Legal Expenses
Section 41(4) of the Act contains an absolute prohibition on permitting expenditure on “legal expenses related to the offence”. However, the court held that the Act does not prohibit the use of restrained funds being used for reasonable legal expenditure in civil proceedings arising in whole, or in part, to the same factual enquiry which gives rise to the Restraint Order. The court made clear that this does not mean that such expenditure will always be allowed. The court should exercise its discretion in line with the legislative steer. The court should exercise a measure of control in relation to the nature and extent of permitted spending. Consideration should be given to countervailing factors, e.g., where a defendant’s interest in civil proceedings can be adequately protected by his legally represented co-defendants.
Victims Of Trafficking Who Commit Serious Convictions
Ben Douglas-Jones QC, leading Andrew Johnson, represented the Crown in an important case concerning victims of trafficking who commit serious convictions which do not attract a defence under s.45 of the Modern Slavery Act 2015: R v A [2020] EWCA Crim 1408:
(1) This case is important re the notion of residual abuse of process following R v DS [2020] EWCA Crim 285. It is an important acknowledgment (alluded to in other cases but never said in terms) that serious cases require a greater dominant force of compulsion before trafficking extinguishes culpability/criminality in the context of the CPS’s guidance and public interest.
(2) Schedule 4 to the Modern Slavery Act 2015, and its exclusion of certain offences from the scope of the defence in s.45, is not in conflict with the international obligations imposed by council of Europe Convention On Action Against Trafficking In Human Beings and/or the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011/36/EU.
(3) The 2015 Act has changed the legal landscape in relation to the protection available to victims of trafficking who commit criminal offences. The special abuse of process jurisdiction in these cases was because there was a lacuna in domestic law in relation to the UK’s international obligations. Parliament has now determined how those obligations should be implemented by enacting the 2015 Act. The lacuna has been filled.
(4) Schedule 4 of the 2015 Act which excludes s.45’s application to serious sexual and violent offences reflects the balance struck by Parliament between preventing perpetrators of serious criminal offences from evading justice and protecting genuine trafficking victims from prosecution.
(5) Cases in which duress and the s.45 defence are not available, but where it would not be in the public interest to prosecute on the basis of a victim of trafficking’s status will be rare. The seriousness of the offence will in such circumstances require an even greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute an individual suspected of an offence regarded by Parliament as serious enough to be included in Schedule 4.
(6) There is no conflict between the Schedule 4 exclusions and the UK’s international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) or the EU Directive 2011/36/EU (5 April 2011).
Abolishing Abuse Of Process
R v DS [2020] EWCA Crim 285
Ben Douglas-Jones QC (leading Daniel Bunting) - leading case abolishing abuse of process in cases where victims of trafficking are prosecuted for offences following the statutory defence in the Modern Slavery Act 2015).
Appeals Concerning Victims Of Trafficking
R v GB [2020] EWCA Crim 2
Ben Douglas-Jones (leading Andrew Johnson) - important case on change in law appeals concerning victims of trafficking who were prosecuted for offences.
Execution Of Duty
Pegram v DPP [2019] EWHC 2673 (Admin); [2020] Crim. L.R. 244; [2020] A.C.D. 2
An important case stated on the scope of “in the execution of duty” of a police officer and the duty to leave self-defence to the tribunal of fact.
Secondary Ticketing
Worldwide Tickets Ltd v North Yorkshire CC [2019] 4 WLUK 418
Ben Douglas-Jones QC acted for the four appellants in the first secondary ticketing s.90 Consumer Rights Act 2015 appeals before the President of the FTT General Regulatory Chamber. He raised procedural impropriety and the four appeals succeeded paving the way to concessions that the penalties imposed in other cases were not safe, due to procedural manipulation by the enforcement authority. The penalties were also found (technically given that the appeals succeeded) to breach natural justice.
Fresh Psychiatric Evidence In Appeals
R v Choudhuri [2019] EWCA Crim 2341
Leading case on the approach to fresh psychiatric evidence in appeals based on fitness to plead and inability to form mens rea
Asylum Defence And The Duty Of Advocates
R v Idahosa [2019] EWCA Crim 1953
Leading case on the asylum defence and the duty of advocates to keep notes of advice given and instructions received at court.
Case Delays
R v DL [2019] EWCA Crim 1249
Case involving the delay in cases involving young witnesses (s.78 PACE).
Cheating The Revenue
CPS v Aquila Advisory [2019] EWCA Civ 588; [2019] 4 WLUK 115
A case involving attribution; breach of fiduciary duty; cheating the Revenue; confiscation orders; constructive trusts; directors; ex turpi causa; proceeds of crime; proprietary rights; public policy.
Scope Of Charges
R. v Phillips (Roy John) [2019] EWCA Crim 577 | [2019] 3 WLUK 644
Case involving scope of charges.
Valiati v DPP
Valiati v DPP [2019] 1 W.L.R. 1221; [2019] 1 Cr. App. R. 17; [2019] Crim. L.R. 238; [2019] A.C.D. 6.
Prosecuting Victims Of Trafficking Who Offend
R v GS [2019] 1 Cr. App. R. 7; [2019] Crim. L.R. 147
A leading case on prosecuting victims of trafficking who offend.
Irrationality In The Context Of The Prosecutorial Decision
R. (on the application of Purvis) v DPP [2018] EWHC 1844 (Admin); [2018] 4 W.L.R. 118; [2018] 2 Cr. App. R. 34; [2018] A.C.D. 104
The Crown Prosecution Service's decision not to prosecute a police officer for perjury, misconduct in public office, and attempting to pervert the course of justice was irrational. The decision-maker had not addressed the seriousness of the offences or the need to maintain public confidence in the impartiality of decisions to prosecute police officers, and had placed too much weight on what sanction the officer might suffer in disciplinary proceedings.
Important case on irrationality in the context of the prosecutorial decision. CPS guidance indicated that where the evidential test was met, a prosecution would usually be brought absent public interest factors tending otherwise in the case of a police officer who had prima facie committed perjury, misconduct in public office, and attempting to pervert the course of justice. The reviewing lawyer had erred by rejecting the possibility of a successful prosecution for the offence, which could be committed even if the accused's motive was to achieve what he believed was a just result.
Judicial Review
R. (on the application of Purvis) v DPP [2018] 2 Cr. App. R. 34
For the purposes of a right of appeal, a High Court decision on an application for judicial review of a prosecutor's decision whether to prosecute a person was a decision in a criminal cause or matter. A decision of the Court of Appeal Civil Division which should arguably have been made by the Supreme Court stood unless declared void.
Human Trafficking Victims
R v GS [2018] EWCA Crim 1824
The change in law concerning the non-prosecution and non-punishment of human trafficking victims from 2007 to 2018 renders an application for leave to appeal against a 2007 conviction a change in law case and therefore the substantial injustice test applies.
Drug mules commit serious offences. Notwithstanding evidence of duress involving threats of serious injury or death to GS and her young son, if she refused to smuggle drugs, she had not been under such a level of compulsion that her criminality or culpability was reduced to such an extent that it was not in the public interest for her to be prosecuted. It had not been an abuse of process to prosecute GS.
Asylum Claim
R v Biglary-Ghalilou (24 October 2018; Gross LJ; Spencer J and HHJ Katz QC)
Under s.31 of the Immigration and Asylum Act 1999 (which creates defences based on Article 31(1) of the Refugee Convention) where the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under s.31, that person is to be taken not to be a refugee unless he shows that he is (i.e. the legal burden of proof shifts from the Prosecution to the Defence). Where a defendant is later granted asylum on the basis of sur place grounds (i.e. grounds which arose after the date of the offence, when s/he was in the UK), the burden of proof still lies with the defendant and not the prosecution.
Agreed And Disputed Issues
R v Valiati and KM (1 November 2018; Sir Brian Leveson PQBD and McGowan J)
The Court emphasised that it is mandatory for “Immediately prior to the commencement of a trial, the legal adviser must summarise for the court the agreed and disputed issues, together with the way in which the parties propose to present their cases. If this is done by way of pre-court briefing, it should be confirmed in court or agreed with the parties.”
Where the contents of the PET form (in particular, section 8 of the form (issues, as opposed to section 9, agreed facts)) become relevant to an issue in the case: “If circumstances arise in which it is sought to argue that the information provided on a PET form should have evidential significance, an appropriate application must be made and the hurdles both in relation to hearsay and s. 78 of PACE satisfied.”
I.e. it may be appropriate to apply to adduce the admission of an agent acting on behalf of a defendant as hearsay under the sixth rule preserved by s. 118(1) of the Criminal Justice Act 2003.
Burden Of Proof Resolved
28 March 2018
Ben Douglas-Jones QC appeared for the Crown in MK v R; Gega v R [2018] EWCA Crim 667, a crucially important case which has resolved the burden of proof where a defence is raised under s45 Modern Slavery Act 2015.
Definitive guidance on the approach to sentencing defendants with mental illnesses
27 March 2018
Ben Douglas-Jones QC appeared for the Crown in R v Edwards [2018] EWCA Crim 595 in which the Vice President of the Court of Appeal handed down definitive guidance on the approach to sentencing defendants with mental illnesses.
Important Divisional Court Case
20 March 2018
Ben Douglas-Jones QC appeared for the DPP in an important Divisional Court case before the President of the QBD and Kerr J in which the best evidence rule, memory refreshing, status of Forms MGDDA in Drink and Drug Driving cases and the status of documents following the advent of digital working.
Trafficking cases – defence disclosure and anonymization
23 November 2017
Ben appeared in R v L and R v N before the Court of Appeal in which the Vice President of the CACD endorsed his suggestions concerning what material should be given by appellants in human rights based appeals. The CACD also set out how to approach anonymising appellants in cases involving victims of human trafficking.
Conviction upheld in MTIC fraud
October 2017
Ben, leading James Marsland, appeared for the Specialist Fraud Division before the Court of Appeal R v Mumtaz [2017] EWCA Crim 1843 (serious and complex fraud). In a judgment given by Hickinbottom LJ the Court agreed with Ben that there was no prejudice in an amendment to the indictment which had secured the conviction of the Appellant.
Copycat website alleged fraudster acquitted
October 2017
Operation Cleo 2.
Stephen Oliver was represented by Ben, led by Graham Trembath QC. He faced allegations of creating and operating copycat government websites to defraud the public. The case was complex and substantial. After a trial the defendants were acquitted of copycat website fraud and the prosecution abandoned further proceedings concerning consumer protection offences. A second case has been discontinued.
Private Hire Licence – landmark decision concerning suspension
13 July 2017
Ben appeared for P in Reigate and Banstead BC v Pawlowski [2017] EWHC 1764 (Admin). It has become a leading case on a council’s power to suspend a private hire licence.
Singh v Cardiff Justices established that it was unlawful for a local authority to use suspension as a holding operation pending further investigation. Accordingly, a local authority could not lawfully suspend by reason of a criminal charge on a "wait and see" basis. If it suspended the licence, it had to do so by way of a substantive decision on the fitness of the driver to hold the licence. Once it was seen that suspension was not a holding operation but a substantive decision, it became apparent that suspension would rarely be the appropriate course where a driver was charged with a matter for which, if convicted, he would be subject to revocation of his licence. If such a charge merited action, and if the action was not by way of an interim measure pending determination of the facts at criminal trial, revocation would generally be the appropriate course. To suspend a licence because an allegation was made and then revoke it because the allegation was proved was contrary to the decision in Singh . That was not to say that, once a decision had been taken to suspend upon notification of a charge, no subsequent decision to revoke could ever be taken. It was possible to envisage a case where facts thereafter emerging from the criminal trial put a different complexion on the matter. The initial suspension would not necessarily rule out a subsequent revocation in such circumstances, having regard in particular to the fact that the local authority's powers were conferred for purposes of public protection. Any decision to revoke would be subject to a statutory right of appeal. Further, if it should later transpire, for example by reason of acquittal at trial, that the former licence-holder was indeed a fit and proper person to hold a licence, provision could be made for expeditious re-licensing,
Refusal To State A Case
R. (on the application of Arthur) v Blackfriars Crown Court [2017] EWHC 3416 (Admin); [2018] 2 Cr. App. R. 4; [2018] Crim. L.R. 475
Case concerning the giving of reasons when refusing to state a case. In a JR of a refusal to state a case, it was held: when refusing to state a case, the court had to serve notice of its decision and written reasons. That had been done in the instant case. It would be helpful if the Criminal Rules Procedure Committee formulated guidance about the formalities relating to such reasons according to the constitution of the bench responsible for the decision. However, any court which declined to state a case had to provide reasons. They did not have to be elaborate, but had to be sufficient for the reasoning to be understood. In any event the interested party, the DPP, was content to proceed on the basis of the appeal judgment and to disregard the note (see paras 10-11 of judgment).
Double jeopardy – the significance of void decisions
14 June 2017
The Court of Appeal agreed with Ben that there was no double jeopardy in a conviction and sentence for escape in the Crown Court in respect of a prisoner who had been charged with and sentenced for a prison disciplinary offence of escape; R v Robinson [2017] EWCA Crim 936 (double jeopardy). The prison sentence was to be treated as void.
Leave to appeal out of time
28 March 2017
Ben appeared for the Crown in R v PK [2017] EWCA Crim 486; [2017] Crim. L.R. 716. The President of the QBD held that the test for granting leave to appeal out of time where a case followed a guilty plea and was not a change in law case was the Mateta / Boal test.
Procedual Unfairness
R. (on the application of Gatenby) v Newton Ayecliffe Magistrates' Court [2017] EWHC 3772 (Admin); [2017] 12 WLUK 34
Case concerning procedural unfairness when explaining the law govering sentencing procedure.
Channel Tunnel security breach convictions upheld by Court of Appeal
4 November 2016
R v Miharessari [2016] EWCA Crim 1733 (asylum seekers breaching Channel Tunnel security). Ben represented the Crown and submitted that (1) there had been no abuse of process in charging the appellants with a 19 Century offence which had the effect of depriving them of the refugee defence under s.31 of the Immigration and Asylum Act 1999; and (2) the offence of obstructing an engine was made out when the Channel Tunnel rails were powered down as a result of asylum seekers penetrating tunnel security.
Bad character and doli incapax
20 May 2016
R v M [2016] 4 W.L.R. 146 [2016] 2 Cr. App. R. 20 (doli incapax)
Ben appeared in an important case concerning bad character in cases where doli incapax applied. It was held that the presumption of incapacity of committing a crime could only be rebutted by the prosecution by clear positive evidence, not consisting merely of evidence of the acts amounting to the offence itself, but that the appellant knew that his act was seriously wrong as distinct from mere naughtiness or childish mischief.
Immigration offences
16 March 2016
R v Boateng [2016] EWCA Crim 57; [2016] 4 W.L.R. 70; [2016] 2 Cr. App. R. 5; [2016] Crim. L.R. 495. Ben appeared for the Crown in this case where a number of important aspects of charging immigration fraud offences was considered. In particular, the Court considered the case of Kaile, where it had been said, on one view, that a defendant could not be guilty of smuggling a child into the UK because a child could not form the guilty mind for the underlying offence. The Court found that the underlying mischief could be s.3 of the Immigration Act 1971, which required no mens rea.
The role of the CCRC
26 February 2016
R v YY [2016] EWCA Crim 18; [2016] 1 Cr. App. R. 28 (role of the CCRC in appeals concerning refugees). Ben appeared in this case, where the President of the QBD said that the CCRC should not normally refer refugee defence cases to the CACD where there had not been a previous unsuccessful appeal. The president suggested that a “triage system” should be introduced.
Free speech and note taking in court
8 February 2016
R (Ewing) v Cardiff Crown Court [2016] EWHC 183 (Admin); [2016] 4 W.L.R. 21; [2016] 1 Cr. App. R. 32; (2016) 180 J.P. 153; [2016] E.M.L.R. 18; [2016] Inquest L.R. 32; [2016] A.C.D. 44 Ben appeared in this case which considered the rights of people to take notes in the Crown Court, contempt of court and vexatious litigants acting as an amanuensis.
The Right To Free Speech
Ben Douglas-Jones led by John McGuinness QC represented the DPP in an important case concerning the right to free speech.
In DPP v Kingsley Smith, an appeal by way of case stated, the Administrative Court (Divisional List) found that four posts on Google+ were not merely an expression of the right to free speech: they were “menacing” or “grossly offensive”.
Smith was an Islamic revert who had made comments supportive of ISIS. He posted messages on You Tube clips
“If I saw Paul Golding [leader of the far right wing organisation “Britain First”] I would slice his throat.”
“David Cameron I'm gonna put an lED on your doorstep.”
“One day I will kill these kufr !!!! Allahu akbar".
“Allah Akbar kill the kufr!!!” (translated as “God is great, kill the disbeliever!”).
The Court found that the case was very different from Chambers, a case in which a joke in bad taste about blowing up an airport had been made. The messages were clearly not a joke:
The District Judge had first to consider whether the sole element of the actus reus that was in dispute on each charge, namely whether the relevant message was of the proscribed character, was proved. To answer that he had to ask himself whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message was grossly offensive to those to whom it related or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it.
The District Judge did not do that in circumstances where there was a clear case that the messages were grossly offensive.
Landmark Special Court
Ben Douglas-Jones appeared for the Crown in a landmark special court (Lord Thomas CJ, Hallett VP and Goss J) hearing of 6 conjoined appeals, led by John McGuinness QC, in the case of Joseph et al. [2017] EWCA Crim 36. It concerned victims of human trafficking charged with offences. It addressed:
Definition Of Human Trafficking
Ben Douglas-Jones appeared in six cases in a two-day special court hearing before The Lord Chief Justice, Vice President of the Court of Appeal and Goss J in an appeal which will determine the scope of the definition of human trafficking, examine the role of the competent authority in the national referral mechanism and consider whether drugs mules carrying significant quantities of Class A drugs across international borders should be prosecuted in the public interest when they are victims of trafficking.
Life Sentence Appeal
Ben Douglas-Jones appeared in the appeal of a life sentence (R v Hoppe) where Gross LJ giving judgment said that when looking at whether a hospital order should have been imposed when an appellant was originally sentenced, while the Court had to look at whether the Court erred in passing the life sentence (Vowles) it would be artificial not to take into account the punishment that an appellant had undergone in the intervening years.
Asylum Defence Cases
Ben Douglas-Jones has appeared in two Court of Appeal cases (Z, 7 July 2016 and Chikho, 13 October 2016) which considered the status of Turkey as a stopover point for refugees seeking to rely on the asylum seeker’s defence to criminal offences. The 1951 Refugee Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1951 within Europe. A 1967 Protocol removed the geographic and temporal limits of the Convention. Turkey however maintained the geographical limitation. Thus no Convention protection was historically afforded to refugees from outside Europe seeking asylum in Turkey. A stopover in Turkey could (historically) not prevent a refugee from relying on the refugee defence. In Chikho the importance of advice given at the Crown Court was highlighted.
R. v D [2016] EWCA Crim 454; [2016] 4 W.L.R. 122; [2016] 2 Cr. App. R. 18; [2016] Crim. L.R. 569
Ben appeared in an important appeal concerning defective indictments and the substitution of offences on appeal.
R. (on the application of Ram) v DPP [2016] EWHC 1426 (Admin)
Ben appeared in a significant case in which guidance was given on the approach to be adopted in cases of judicial review of the Victims' Right to Review Scheme.
R. (on the application of S) v Croydon Magistrates' Court
Ben appeared for the DPP in an appeal concerning a district judge's refusal to adjourn a trial days before it was listed. The decision was Wednesbury unreasonable where the decision was made in the absence of relevant evidence. A renewed application for an adjournment on the morning of the trial with the benefit of the missing evidence should have been dealt with as though the magistrates were in the judge's position days earlier, and without taking the presence of witnesses into account.
Asylum Defence) R. v Zaredar (Arash)
Ben Douglas-Jones appeared in an appeal which led to Gross LJ stating that the substance of the judgment should be incorporated into training for solicitors.
Tax
Galvin v Revenue and Customs Commissioners [2016] UKFTT 577 (TC); [2016] S.T.I. 2560 Ben Douglas-Jones appeared for the applicant in an application to reinstate an appeal against the imposition of civil evasion penalties following the strike out of an appeal in the FTT Tax Chamber. The case concerned the application of Art 6 of the ECHR in tax cases where evasion penalties were imposed.
Delay In Appeals
R. (on the application of Khalif) v Isleworth Crown Court Divisional Court [2015] EWHC 917 (Admin)
A leading case on delay in appeals brought to the Crown Court via the CCRC and section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004).
Mortgage fraud and character of expert witnesses
R v Nicholas Jones et al [2014] EWCA Crim 1762 Ben, led by Patrick Harrington QC, successfully submitted that convictions should be upheld in a multi-million pound mortgage fraud. The principal ground of appeal against conviction was that the Judge erred in refusing to admit adverse comment concerning the judgment of an expert witness. The Court found that the issue was not one of bad character. It was one of relevance. The Crown had been right to oppose its introduction in the Crown Court and the Judge had been right to refuse to admit the evidence.
Judge’s Conduct
R v Atkins [2014] EWCA Crim 1377 Ben appeared for the Crown in the Court of Appeal (but not the Crown Court) in this case where the conviction for a serious assault on the vagina of a child leading to a 17-year prison sentence was upheld. The judge was criticised unfairly by the Appellant for behaving like a gifted Silk to redress the forensic balance where in-house Crown Csl inter alia failed to cross-examine on key matters.
Extradition, Contempt and Restraint
LANDMARK SUPREME COURT VICTORY FOR THE SERIOUS FRAUD OFFICE
SERIOUS FRAUD OFFICE V O'BRIEN [2014] UKSC 23
Serious Fraud Office V O'Brien is a massive, landmark legal victory for the Serious Fraud Office. Ben, together with Edward Jenkins QC represented the SFO.
On 26th March 2014 the Supreme Court ruled that the SFO is right that disobedience of a pre-trial criminal restraint order is a civil contempt of court. It is not a criminal offence. Furthermore, the Supreme Court found that civil contempt is not extraditable- even though it attracts a 2 year sentence.
O'Brien was in Chicago. He was found by the Old Bailey to be in contempt of court. He was extradited to the UK for a boiler room fraud. He was not extradited for the contempt. The Common Serjeant sent O'Brien to prison for 15 months for the contempt. O'Brien appealed. He argued that the contempt was a criminal offence. He said he should not have been dealt with for that offence: he had not been extradited for it.
The Court of Appeal disagreed. So did the Supreme Court. They both agreed with the SFO.
Had the SFO lost the case, the implications would have been massive. Restraint orders are enforceable in the same way as freezing, search and disclosure orders. Had the SFO lost the case, parties to civil, commercial claims would have had to seek the extradition of other parties who refused to comply with court orders.
Human Trafficking
Following L and others [2013] 2 Cr. App. R. 23 the Special Court judgment of the Court of Appeal (Lord Judge, Lord Justice Moses and Mrs Justice Thirlwall) in which Ben appeared for the Crown, he appeared for the Crown in R v S 9th September 2014. In S the appellant was a victim of human trafficking. She had been deprived of her childhood and early adulthood by being held in domestic servitude and by being deprived of an education. There was no fault on any party for not identifying the defendant as a victim of trafficking when she was prosecuted in 2009. She had entered an unequivocal guilty plea. Ben appeared in O [2011] EWCA Crim 2226 [O 2011] and R v LZ [2012] EWCA Crim 1867. He suggested in those cases that the Court of Appeal should allow appeals in respect of victims of sexual servitude notwithstanding that there had been no fault in failing to identify them as trafficking victims and where there were unequivocal guilty pleas. The Court of Appeal agreed. In a departure from the fault based appeals following N and Le [2012] 1 Cr. App. R. 35; [2012] Crim. L.R. 958 (in which Ben Douglas-Jones also appeared for the Crown), for the first time after the judgment in L and others the Court of Appeal has, in S, endorsed the O and LZ line of authority.
Ben appeared for the Crown in C and others [2014] EWCA Crim 1483 in which the Crown was held right to concede appeals where victims of trafficking had been prosecuted. There criminality had been extinguished by their trafficking circumstances.
5 Conjoined appeals concerning human trafficking to be heard by a Special Court presided over by the Lord Chief Justice in May 2013.
R v L and others [2013] EWCA Crim 991; [2013] 2 Cr. App. R. 23. Ben appeared in this Special Court sitting of the Court of Appeal presided over by the Lord Chief Justice, led by Tim Owen QC and instructed by the Crown (CPS Appeals Unit) in which the Court set out guidance for the prosecution of victims of human trafficking.
Regina v N and Le [2012] EWCA Crim 189; [2012] 3 W.L.R. 1159; [2012] 1 Cr. App. R. 35; [2012] Crim. L.R. 958; Times, April 10, 2012. Ben, led by Tim Owen QC and instructed by Shuba Karan and Steve Alvarez of the CPS Appeals Unit, appeared for the Respondent in these conjoined appeals, heard by the Lord Chief Justice, Lord Judge, sitting with Royce and Globe JJ. Convictions were upheld and the Court set out "a series of considerations of broad general effect" concerning Article 26 of the Human Trafficking Convention 2005.
http://www.bailii.org/ew/cases/EWCA/Crim/2012/189.html
R v Dastjerti [2011] EWCA Crim 365 (cited where a trafficked victim has pleaded guilty on bad advice).
R v LZ [2012] EWCA Crim 1867 (a trafficked adult subjected to repeated rape).
R v O [2011] EWCA Crim 2226 (victim trafficked with coercion from “JuJu magic”, exposed to sexual slavery).Ben's legal argument on behalf of the Crown was accepted by the Court of Appeal. Ben argued that O's appeal against conviction (her guilty plea) should succeed on Human Rights grounds: she was a credible victim of child trafficking, subjected to "JuJu Magic" rituals and forced into sexual exploitation.
Asylum Defence
Mateta and others [2013] EWCA Crim 1372: Ben recently appeared for the Crown (CPS Appeals Unit) in this Special Court sitting of the Court of Appeal in which Lord Justice Leveson set out to “kill [the issue of lawyers failing to identify clients with asylum defences in lower courts] stone dead”.
R v A [2013] [citation pending] (refugee escaping persecution on grounds of sexuality).
R v Sadighpour [2012] EWCA Crim 2669; [2013] 1 Cr. App. R. 20; Archbold News February 2013 (leading case concerning the application of burden and standard of proof in refugee-defence cases).
R v C [2011] EWCA Crim 2911 (the application of Articke 31 of the Geneva Convention relating to the Status of Refugees in the context of s.31 of the Immigration and Asylum Act 1999). Ben successfully argued on behalf of the Crown that Article 31 of the Geneva Convention was not engaged in this case in such a way as to make a conviction for possessing false i/d documents unsafe.
Human Rights and Freedom of the Press
R (on the Application of A) v Lowestoft Magistrates’ Court [2013] EWHC 659 (Admin); (2013) 177 J.P. 377; [2013] E.M.L.R. 20; [2013] Crim. L.R. 763; [2013] A.C.D. 72. Ben appeared for the DPP in this case in which he persuaded the Court that it should not allow a restriction or super-injunction on the publication of the details of a Councillor found drunk in charge of a child.
Special reasons in an emergency
Key v CPS
Administrative Court 24 January 2013. Ben successfully persuaded the Administrative Court that the court below had applied the appropriate test for special reasons in an emergency.
Adverse Inferences
RS v DPP [2013] EWHC 322 (Admin).
Ben successfully represented the DPP in this case, demonstrating that there had been no failure of the court below to apply the requisite legal test before an adverse inference from silence is drawn.
Rebuttable Presumption In Driving Cases Where A Notice Of Intended Prosecution Is Needed
Hall v DPP [22 January 2013].
Ben won this case by persuading the High Court that where a notice of intended prosecution is needed in a driving case, there is a rebuttable presumption that one has been served on the defendant.
Appropriate Test For Adjournment Where Case Will Proceed In D’s Absence / Case Management
R (on the application of Drinkwater) v Solihull Magistrates' Court [2012] EWHC (Admin) (President of the QBD and Beatson J).
The appropriate test for an adjournment in the Magistrates' Court is Jones and not Picton where such an adjournment will lead to the trial continuing in the absence of D.
Smuggling
Logistika v UK Border Agency [2012] UKFTT 355 (TC) 2012 WL 2191332. Exercise of discretion by UK Border Agency when seizing goods used for smuggling.
DNA
Regina v Cleobury [2012] EWCA Crim 17; 2012 WL 14771. Counsel for the Appellant in appeal founded upon fresh DNA evidence.
Illegal Removal From Office
Inspector W v Public Service Commission [2011 - 2012]
High Court of Grenada. Ben was instructed to advise a police officer where the Grenadian PSC has allegedly contrived circumstances to assign him to a post outside the Grenadian Police Service.
No Legitimate Expectation Where Ruling Concerning Sentence Perverse
R (on the application of C) v Stratford Magistrates' Court [2012] EWHC 154 (Admin); 2012 WL 14674.
Ben persuaded the High Court that a District Judge had been right to overrule a decision of justices concerning the non-custodial scope of a pre-sentence report. The case provides authority that JR proceedings may be brought before sentence where the sentence might be greater than that indicated by a Magistrates' Court when ordering a PSR.
Judicial Review Of A Decision To Offer No Evidence
R (Rivett)v Attorney General, DPP, Legal Services Ombudsman, the Solicitors' Regulation Authority and Hatch Brenner LLP [2011]
Counsel for the DPP in successful dismissal of claim for Judicial Review by a solicitor against whom the CPS had offered no evidence in criminal proceedings.
Judicial Review Of A Decision To Prefer Fresh Charges
R (Saleh) v Redbridge Magistrates' Court and DPP [2011]
Counsel for the DPP in application for leave to seek JR concerning a decision to lay fresh charges.
Arrest for failure to provide personal details to Police
R (Ross and Tuthill) v Newark Magistrates' Court and CPS [2011]
Counsel for the CPS in successful dismissal of claim to proceed to JR in relation to hunt-saboteurs arrested and charged on the basis of their failure to provide personal details on request by the Police.
Dental Fraud
R v Johnson [2008] EWCA Crim 2011; 2008 WL 3819578. Ben Douglas-Jones appeared on behalf of the appellant in an appeal concerning the sentence for a significant NHS dental fraud.
Child Pornography
Regina v Guest [2011] EWCA Crim 1762; 2011 WL 2649506. Crown Counsel for CPS Appeals Unit in appeal against sentence (IPP) for second child pornography offence in the notorious case involving teenager branded by the Telegraph as having the "biggest porn library in Britain".
Murder
Regina v Birchwood [2011] EWCA Crim 431; 2011 WL 674925. Appellant's Counsel led by Edward Jenkins QC in successful appeal against a 32-year tariff for financially motivated murder.
Rape/Extradition
Regina v Thomas [2011] EWCA Crim 2116; 2011 WL 4084962. Appellant's Counsel for the first person to be extradited from Peru. T was tried in his absence whilst remanded in custody pending extradition.
Fraud Sentence
Regina v Stratford and Stirzaker [2011] EWCA Crim 888; 2011 WL 1130163. Crown Counsel in appeal against sentence in mortgage fraud when Judge had erred in approach.
Legitimate Expectation
AG's Reference 76 of 2009, Regina v Barkevicius [2009] EWCA Crim 2613; 2009 WL 4248592. Counsel for Defendant in Attorney General's Reference concerning death by careless driving whilst under the influence of alcohol. Sentence upheld on the ground of legitimate expectation- Prosecution indicated that it would not proceed by way of Attorney General's Reference.
Sentence: Imprisonment for Public Protection - comment from the Court of Appeal to prevent adverse effect of sentencing remarks on release following IPP
Regina v Hutchison [2008] EWCA Crim 1379 Counsel for Applicant in leading case where a judge errs in sentencing and adversely affects IPP release date.
Sentence: drug dealing not encompassed by the indictment
Regina v O [2008] EWCA Crim 2064; 2008 WL 3996445. Ben successfully persuaded the Court of Appeal to reduce the sentence of a former professional boxing for the supply of drugs on the ground that the Judge had erroneously taken into account the suggestion of previous dealing.
Fraud: co-defendants’ interviews; direction concerning axe to grind
Regina v R [2007] EWCA Crim 122: Counsel for Appellant in successful appeal against conviction and subsequent retrial of the first accountant to be charged with POCA offences; £45m confiscation proceedings.
Fraud - £10.3 million case
Regina v Price [2006] EWCA Crim 972; [2007] 1 Cr. App. R. (S.) 6: Counsel for Appellant - the Halifax 'IOU' fraudster - in successful appeal against sentence in £10.3m fraud.
Ben appeared for the Crown in C and others [2014] EWCA Crim 1483 in which the Crown was held right to concede appeals where victims of trafficking had been prosecuted. There criminality had been extinguished by their trafficking circumstances.Regina v Lashley [2005] EWCA Crim 2016; 2005 WL 1942168; [2006] Crim LR 83; Archbold 20094-268, 7-81; (2005) The Times, 28 September Crown Counsel in leading case concerning judge's conduct.
Regina v Bryant [2005] EWCA Crim 2079; 2005 WL 1942167; Cross and Tapper on Evidence, 11th ed., p305; Criminal Procedure, Sprack, 11th ed., 9.23; [2005] 9 Archbold News 3; Archbold 2009 7-81 Crown Counsel in leading case concerning judge's conduct.
Inconsistent Verdicts
Regina v Davies [2004] EWCA Crim 1126, 2004 WL 1060622; LTL 23/4/2004: Crown Counsel in leading case concerning inconsistent verdicts as between defendants.
Alcoholic Amnesia
Regina v Blows (2004 CA): Crown Counsel in case concerning alcoholic amnesia and inconsistent verdicts.
Voluntary Bills of Indictment
Regina v Cadette [2004] EWHC 2661 (QBD) (Richards J): Counsel for Defendant in leading case concerning the preferment of a voluntary bill of indictment in section 51 Crime and Disorder Act 1998 cases.
Ben Douglas-Jones KC
The Chambers of
Miranda Moore KC And Julian Christopher KC
E: bdj@5pb.co.uk
T: 0207 583 6117
www.bendouglas-jones.com