Wednesday 17 April 2013

A glance at an interesting day in the Court of Appeal (Criminal Division)

On 16th April, the Court of Appeal (Criminal Division) handed down judgment in:

Morris v R [2013] EWCA Crim 436 (16 April 2013) - Leveson LJ, Mitting and Males JJ - an appeal against conviction for dangerous driving was quashed for error of law in the judge's direction to the jury.  The case is particularly interesting because of the defence put forward - use of reasonable force in the lawful arrest of offenders - Criminal Law Act 1967 s.3(1); Police and Criminal Evidence Act 1984 s24A and Criminal Justice and Immigration Act 2008 s.76.   The case illustrates all too well the difficulies in the law relating to arrest by citizens of others.  It is worth noting here the considerable lengths which the trial judge went to when directing the jury on the law which is, regrettably, far from straightforward.

Foran v R [2013] EWCA Crim 437 (16 April 2013)  - Leveson LJ, Mitting and Males JJ - a reference from the Criminal Cases Review Commission (CCRC) - convictions for robbery and conspiracy to rob were quashed.  Interestingly, the court had dismissed two previous appeals by this appellant.  On this occasion it was the CCRC which referred the case because the Commission concluded that there was a real possibility that the convictions would not be upheld in the light of information not previously considered regarding the credibility of the principal police witness, Detective Inspector Paul Matthews, a member of the now notorious West Midlands Police Serious Crime Squad who interviewed the appellant, together with developments in case law since the earlier appeals concerning the position when the evidence of a tainted officer is supported by other police evidence by officers to whom no criticism is attached.

 Cosford and others v R [2013] EWCA Crim 466 (16 April 2013)  - Leveson LJ, Mitting and Males JJ - Misconduct in Public Office -the court gave its reasons for dismissing appeals against conviction.  Cosford was a nurse employed at Wakefield Prison.  She had a sexual relationship with a prisoner.   Falloon was a prison/hospital officer who failed to report Cosford.    Flynn was a registered general nurse who also failed to report the sexual relationship.  The primary defence of each of the appellants was that they did not hold a public office.  This was rejected.  Leveson LJ concluded the judgment by noting:

'As to the future, however, we recognise that it is unsatisfactory that each of the recent decisions in this area has required the court to trawl through the authorities to try to discern a thread which accurately represents the true position and can be translated into modern employment conditions. In this regard, it is entirely laudable that the Law Commission intends to revisit the ambit of the offence of misconduct in public office, commencing work in early 2014 with a consultation in the following year.'

Cairns v R [2013] EWCA Crim 467 (16 April 2013) - Leveson LJ, Mitting and Males JJ - dealt with sentencing where there is a guilty plea but where the plea is entered on the basis of a certain version of the facts.  Leveson LJ said: 'Far too many appeals against sentence are mounted on the basis that the Judge has failed to have any, or sufficient, regard to the basis on which a plea of guilty has been entered. Although it has not been submitted that the principles are in doubt, these cases (each of which is said to raise some aspect of the problem) have been collected together in order to re-state the approach to be adopted.'

This case illustrates an important function of the Court of Appeal (Criminal Division) which is to set down principles to be applied by trial judges when sentencing offenders.

Khan and others v R [2013] EWCA Crim 468 (16 April 2013) - Leveson LJ, Mitting and Sweeney JJ -  an appeal against sentence for offences under the Terrorism Act 2006  In the particular cases, indeterminate sentences were not appropriate. It was important to reflect properly whether the plans went merely beyond ‘talk’ in order to assess risk to the public.

Since completing his Inquiry, Lord Justice Leveson has clearly been busy.  The next Lord Chief Justice?  I do not know but he may well be in the running !

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