Issue 3 April 24, 2018 Archbold · 2018-04-09 · 3 Archbold Review Thomson Reuters K Limited 2018 Issue 3 April 24, 2018 diction’s scope to appropriately very limited circumstances,

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Issue 3 April 24, 2018

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CONTENTS

Cases in Brief ........................................................1

Sentencing Case ...................................................3

Features .................................................................4

Cases in BriefAppeal—prosecution appeals—conditional agreement by Crown that defendant be acquitted (Criminal Justice Act 2003 s.58(8))—timing; overnight adjournment of application to adjourn under Criminal Justice Act 2003 s.58(4)(a)(ii)—effectC AND D [2017] EWCA Crim 2257; 12 December 2017(1) The indication by the Crown of the acquittal agreement under the Criminal Justice Act 2003 s.58(8) did not have to be in the same speech as the giving of notice of an inten-tion to appeal a ruling under s.58(4), but it had to be at the same time. It must be at the time when the court was being asked to embark on the exercise of the jurisdiction. Where Crown counsel made it clear she intended to seek to appeal, and had both made and concluded the application to the judge for leave without informing the court of the agree-ment, the judge had no jurisdiction in respect of leave. The sequence of events was critical – the agreement must be indicated before the judge embarks on any consideration of the merits of the application. Quillan [2015] EWCA Crim 538 was not to be read as qualifying the strict approach set out by the Court in Arnold [2008] EWCA Crim 1034, [2008] 2 Cr.App.R. 544 (37) and NT [2010] EWCA Crim LR 711, [2010] 2 Cr.App.R. 12 84.(2) The judge acceded to a submission of no case to answer on one count, the jury having been discharged for the day, and Crown counsel made it clear that she would either ask for an adjournment pursuant to the Criminal Justice Act 2003 s.57(4)(a)(ii) or continue with the trial but asked for the matter to be put off until the following morning. The judge did so. The delay would not have been such as to de-prive the judge of jurisdiction.

Appeal—renewed applications for leave to appeal by new lawyers—deterrence—approach to be adopted by the Court of AppealJAMES AND CONJOINED APPLICATIONS [2018] EWCA Crim 285; 8 February 2018 Four renewed applications for leave to appeal were listed together. Each involved lawyers, who did not represent the

applicant at trial, lodging new grounds of appeal after re-fusal of the written application for leave to appeal by the single Judge, Criminal Appeal Act 1968 s.31. (1) There had been a significant rise in the number of such applications, which, if successful, effectively by-passed the single judge filter mechanism. As a result, frequently totally unmeritorious applications (like those before the court) consumed precious judicial and administrative resources. (2) One way such applications may be deterred was by loss of time orders (Gray [2014] EWCA Crim 2372, [2015] 1 Cr.App.R. (S.) 27), and by scrutinising extension of time applications (see Singh [2017] EWCA Crim 466, [2017] 2 Cr.App.R. 15). Another may be to provide a greater struc-ture for applications by new lawyers after a refusal of leave (excluding fresh evidence cases), as provided in this judg-ment. (3) The court reviewed authorities on the statutory ap-proach to appeals and time limits (including Pinfold (1988) 87 Cr.App.R 15; Grantham (1969) 53 Cr.App.R 369; Yasain [2015] EWCA Crim 1277, [2016] Q.B. 146; Hughes [2009] EWCA Crim 841, [2010] 1 Cr.App.R.(S.) 25; Thorsby [2015] EWCA Crim 1, [2015] 1 W.L.R. 2901; Wilson [2016] EWCA Crim 65; Roberts [2016] EWCA Crim 71, [2016] 1 W.L.R. 3249; Hamilton v R [2012] UKPC 21, [2013] 1 Cr.App.R. 13; and Cox and Thomas [1999] 2 Cr.App.R. 6), and relevant provisions of the Criminal Appeal Act 1968 and the Crim PR (36.4-36.6, 36.14 and 39.3) and extracted the following principles. (a) As a general rule, all grounds of appeal should be lodged with the notice of appeal/ap-plication; subject to perfection on receipt of transcripts;

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(b) the s.31 filter mechanism should not be bypassed solely on the basis that lawyers instructed post-conviction would have done or argued things differently from the trial lawyers; fresh grounds advanced by new counsel must be particularly cogent; (c) fresh grounds advanced after determination by the single judge required the leave of the court; applications to advance fresh grounds must be accompanied by an application to vary the notice of appeal. If there were any doubt as to whether a ground was fresh, an application to vary should be made; (d) the advocate should address in writing the relevant factors which the full court was likely to consider in determining whether to allow variation of the notice of appeal, and an extension of time for the renewal if required; (e) in decid-ing the application, the full court would take into account the following (non-exhaustive) list of issues: (i) the extent of the delay in advancing the new grounds; (ii) the rea-son for the delay; (iii) whether the issues or facts giving rise to the new grounds were known to the applicant’s representative at the time he or she advised the applicant on appeal; (iv) the overriding objective (Crim PR 1.1); and (v) the interests of justice; (f) the application to vary would not require exceptional leave by demonstrating substantial injustice as in “new law” cases (Jogee; Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7, [2017] A.C. 387 [100]; Johnson [2016] EWCA Crim 1613, [2017] 1 Cr. App.R. 12 [24]-[28]), but the hurdle was a high one. Coun-sel should remind themselves of the provisions of the PD. 39C.2 (“Advocates should not settle grounds unless they consider that they are properly arguable. Grounds should be carefully drafted.”) and bear in mind their duty to the court; (g) leave would not be given to renew out of time unless the applicant could persuade the court that very good reasons existed; if the application to renew out of time was accompanied by an application to vary the grounds the hurdle was higher; (h) for pragmatic rea-sons (to avoid renewals), the application to vary should be considered by the full court and not on the papers; (i) assuming the applicant would have received advice on appeal by the trial advocate, new counsel should in every case be required to comply with the duty of due diligence as explained in McCook [2014] EWCA Crim 73, [2016] 2 Cr.App.R. 30; waiver would almost certainly be required; (j) once trial lawyers had responded, new counsel should again consider with great care their duty to the court and whether the fresh grounds should be advanced as prop-erly arguable and particularly cogent; (k) the Registrar should obtain, in advance of the full court hearing, tran-scripts relevant to the new grounds and (where required) a respondents’ notice relating to them; (l) the Crim PR Committee may wish to consider formulating rules for the lodging of a notice of application to vary a notice of ap-peal; and (m) on any renewal, the full court when refusing an application to vary the notice of appeal had the power to make a loss of time order or order for costs (Gray). By analogy with Kirk [2015] EWCA Crim 1764 (where the Court refused an extension of time), the court had the power to order costs of obtaining the respondent’s notice and transcripts.

Appeal—re-opening of final determination by Court of Appeal, Criminal Division—nullity—under principle in Yasain [2015] EWCA Crim 1277; [2016] QB 146—criteria and approach; disclosure—intercept evidence—Regulation of Investigatory Powers Act 2000 ss.17 and 18—proper construction—conduct of police, prosecution and counsel—test for disclosure of materialGOHIL; PREKO [2018] EWCA Crim 140; 15 February 2018An application to re-open a final determination of the Court of Appeal, Criminal Division would ordinarily be dealt with on the papers. In G and P’s cases, the volume of material required to be considered and the grave nature of the al-legations of impropriety by the prosecution made it appro-priate and convenient to deal with the applications by way of an oral hearing. The Court of Appeal, Criminal Division had jurisdiction to reopen concluded proceedings before it in two situations. (1) First, if a previous order of the Court of Appeal, Crimi-nal Division was a nullity, the court was not functus officio and there was no logical difficulty in there being a further hearing: Yasain [2015] EWCA Crim 1277; [2016] QB 146, [24]-[25]. Nullity may arise either when the hearing was a nullity, so that the ensuing order was a nullity, or when simply the order was a nullity (the court making an order it had no power to make), despite the hearing being proce-durally valid. Importantly, many, perhaps most, procedural irregularities, however otherwise grave, would not give rise to nullities. Any material non-disclosure or misleading state-ments to the court by the Crown constituted irregularities but not nullities; they did not cause the court to make or-ders it had no power to make.(2) Secondly, for a concluded decision to be reopened un-der the principles of Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 (and see now CPR Part 52.30(1)) as adopted by the Criminal Division in Yasain, the necessary conditions for the exercise of the jurisdiction must be satis-fied. They were that: (i) it was necessary to do so in order to avoid real injustice; (ii) the circumstances were excep-tional and made it appropriate to re-open the appeal; and (iii) there was no alternative effective remedy. They were not to be interpreted as a statute. They would, almost invari-ably, have to be cumulatively satisfied. Moreover, satisfying the necessary conditions was not necessarily sufficient for the exercise of the jurisdiction; the court retained a residual discretion to decline to reopen even if the necessary condi-tions were satisfied.(3) The principles applied in both Divisions, but the juris-diction need not necessarily be exercised in the same way, bearing in mind both the triangulation of interests in crimi-nal proceedings (the State, the defendant and the complain-ant/victim) and the general availability of the Criminal Cas-es Review Commission to remedy the injustice of wrongful convictions.(4) The test was the same for applications by the Crown or defendant.(5) The Yasain jurisdiction was generally directed towards exceptional circumstances involving the correction of clear and undisputed procedural errors where it was simpler and more expedient for the court itself to re-open the appeal and correct a manifest injustice without the need for fur-ther litigation. Such an approach did not altogether exclude room for pragmatism in practice, while confining the juris-

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diction’s scope to appropriately very limited circumstances, where, even if recourse to the CCRC was otherwise avail-able, it would be a wholly unnecessary exercise. (6) Material failures in disclosure were capable of constitut-ing “procedural errors” (see R (Bancoult) v Foreign Sec-retary (No.4) [2016] UKSC 35; [2017] AC 300, esp [5] ff). However, both in non-disclosure and fresh evidence cases, almost invariably, the availability of the CCRC would tell de-cisively against exercising the Yasain jurisdiction. (7) In considering a Yasain application in a conviction case, if even a successful application to re-open would not have an impact on the safety of the conviction, then it must be at least overwhelmingly unlikely that the application would satisfy the necessary conditions – at least save where the procedural failure or the fresh material revealed an abuse which rendered it unfair for the applicant to have been tried at all or such an affront to justice requiring an appeal to be allowed, regardless of the safety of the conviction.(8) The Regulation of Investigatory Powers Act 2000 s.17 contained an absolute prohibition on disclosure of the con-tent of any intercept if the disclosure were made in circum-stances from which its origin as intercept may be inferred, subject only to s.18, relevantly s.18(7). That subsection served to disapply the prohibition in s.17 where a judge di-rected that disclosure should be made to him or her in the interests of justice. However, it was perfectly possible for the prosecution to make a disclosure to the defence of in-formation, in fact derived from intercepted communication, in a manner or form that made it impossible to infer that that was its origin. In those circumstances the prohibition in s.17 did not bite and there was no need for any applica-tion to be made to the court. Furthermore, even in a case where ss.17 and 18 were applicable, the court should not be taken as assenting to G’s submission that a failure to follow the procedure set out in s.18 had the consequence that the proceedings in question would be a nullity (whatever other consequences it might have). (9) The court emphasised the importance, given the split instructional structure of police, CPS and counsel, of early, sensible and sustained cooperation between investigators and prosecutors in respect of disclosure, including, where possible, the early involvement of counsel.(10) To consider, as the prosecution had, that there was a contrast between the application of prosecution disclosure duties in isolation as opposed to in context, posed a false and distracting choice. All material could only be properly considered in context. There was, however, a failure to see the material other than from the Crown’s vantage point. That counsel was confident that the Crown could rebut the inferences which might otherwise be drawn from the material undermining the Crown’s case or assisting G’s case or casting doubt on the safety of his convictions (as, applying “the context test”, the prosecution had), did not mean that the test for disclosure had not been passed. The ultimate outcome of the issue, trial or appeal under con-sideration could not be the touchstone for disclosure and was not a tenable approach to either the duties under the Criminal Procedure and Investigations Act 1996 or those at common law in respect of post conviction disclosure (R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37; [2015] AC 225).

Trial—desirability of written directions; appeal—certificate of fitness to appeal—exceptionalityATTA-DANKWA [2018] EWCA Crim 320; 13 February 2018(1) A’s conviction under the Offences Against the Person Act 1861 s.18 was quashed where, apparently as a result of a joint misapprehension by the recorder and both counsel, the jury were directed in answer to a question on the ba-sis that the s.18 count was a s.20 count. The recorder had also previously misdirected the jury on the alternative s.20 count on the indictment. The court emphasised the desir-ability of written directions, and specifically a route to ver-dict document, absent in A’s case, noting the well-known research as to the desirability of written directions (see the summary in Crown Court Compendium 2017 para.1.6, not-ing the “overwhelming” case for them) and the Criminal Practice Direction paras 26K.11-12. Judges at first instance should never be too quick to assume that a case was so straightforward that a route to verdict would be superflu-ous. Problems could arise in even apparently straightfor-ward cases, and quite apart from the benefit to the jury, the mental discipline of drafting a route to verdict assisted the court in identify the essential ingredients of offences and the issue upon which the jury should focus.(2) Sentence having been adjourned overnight, counsel no-ticed the error and brought it to the attention of the judge, who granted a certificate that the case was fit for appeal under the Criminal Appeal Act 1968 s.1(2)(b). It had long been established that this power should only be exercised in exceptional cases (see e.g Bansal [1999] Crim. L.R. 484, Inskip [2005] EWCA Crim 3372), and few circumstances justified a trial judge’s assumption of the powers normally exercised by judges of the Court of Appeal. But even where that requirement might be satisfied, as here, it did not fol-low that a certificate should be granted. While the granting of a certificate obviated the need for the defendant to apply for leave to appeal, the power of the Registrar to refer an application for leave to the court should be remembered – here, had counsel promptly submitted an application for leave to appeal with a note explaining to the Registrar the need for urgency, the matter could have come on within a very short time.

SENTENCING CASEPerverting the course of justice, suspended sentenceHOWELL [2018] EWCA Crim 328, 16 February 2018The Court had granted leave to the Solicitor General to refer a sentence on the ground that it was unduly lenient. The offender had been convicted after trial of an offence of causing death by careless driving (count 1) and of do-ing an act tending and intended to pervert the course of public justice (count 2). He was sentenced on count 1 to six months’ imprisonment suspended for two years. On count 2 he was sentenced to a consecutive term of four months’ imprisonment suspended for two years. The sentences in-cluded several requirements, which may be found at para.[3] of the judgment. The offender’s car had hit a pedestrian who was crossing a road in the early hours of the morning on 2 May 2015. Counsel for the Solicitor-General accepted that he would

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not seek to challenge the sentence on count 1, though it was very generous. As regards the count 2 offence, the offender had not stopped after the collision but had telephoned the police on the evening of the 2 May seeking a crime refer-ence number to assist with an insurance claim in relation to damage to his car windscreen. He claimed the damage had been caused by someone throwing something which had hit his windscreen, or possibly a branch. The police called him back the following day and he repeated this account. The Court stated that as a matter of principle, offending involving perverting the course of justice is a serious of-fence that will ordinarily, and in the absence of exceptional reasons, require an immediate custodial sentence (Attorney General’s Reference No 35 of 2009 [2010] 1 Cr.App.R(S) 61; Cronin [2017] EWCA Crim 1357). The Court further considered the factors identified in Tun-ney [2007] 1 Cr.App.R(S) 91; namely the seriousness of the substantive offence, the degree of persistence and the effect of the attempt. The substantive offence was a seri-ous offence involving the death of an innocent pedestrian. Regarding persistence, the false account was maintained

in two telephone calls to the police (as well as at trial). As to the effect of the attempt, it was wholly unsuccessful in diverting attention from the offender. He had, in fact, inad-vertently drawn attention to himself.The Court asked what were the exceptional circumstances which could have caused the judge to suspend the sentence and concluded that no such exceptional factors had been identified. Although the Court would be slow to interfere with a discretionary decision to suspend a sentence, in cas-es of perverting the course of justice, the public interest lies in ordinarily imposing immediate custodial sentences. There were no sufficient reasons to justify the imposition of a suspended sentence. It is important that the courts, absent special factors, adhere to the principle that pervert-ing the course of justice will normally attract an immediate custodial sentence. The Court concluded that the sentence was unduly lenient. The appropriate sentence overall was one of sixteen months’ immediate imprisonment. This was achieved through a sen-tence of eight months’ imprisonment on count 1 and a con-secutive term of eight months’ imprisonment on count 2.

FeaturesBlagging and the Criminal LawBy J.R. Spencer

“Blagging”, like spam,1 is a word which has changed its meaning with advances in technology. Originally a slang word for robbery with violence,2 today it usually means ob-taining confidential data by deceptive, underhand or other-wise improper means. And on 7 March the practice featured prominently in the news as the result of claims – immedi-ately denied – by a former private investigator called John Ford that he had “blagged” confidential information about leading politicians for the Times and the Sunday Times. In an interview with the BBC Today programme he said:

I did their phones, I did their mobiles, I did their bank accounts, I stole their rubbish. Hundreds of telephone interceptions, hundreds of bank interceptions. Utilities. I’ve been through mortgages. I’ve stolen rubbish. I’m afraid the list is endless.

Ford’s interview was followed by one with Lord Prescott who, in explosive form, condemned the use of these tech-niques and questioned their legality. This prompts two re-lated questions: when does blagging run into conflict with the criminal law, and is the criminal law at present adequate to deal with it? It is these two issues that will be considered briefly now.3

The criminal offences most obviously relevant to this area are four, namely:

1 Which was originally a trade-mark name (derived from “spiced ham”) for a form of American luncheon meat, and which seems to have come to represent junk emails via its use in a sketch in Monty Python’s Flying Circus.2 The meaning given in the third edition of the New Shorter Oxford English Dictionary in 1993.3 For a number of the points that follow I am grateful to two friends, Rachel Barnes and Rebecca Williams.

1. Theft If the confidential data is held in a traditional paper file which the blagger takes with intention of keeping, this is clearly theft. Less obviously, it is also theft if (as in one Ford’s alleged exploits) the paper with the data on it is tak-en from a dustbin: surprisingly, perhaps, rubbish does not become a res nullius when the owner puts it out for the dust-man to collect.4 However, no theft is committed if there is no intent to deprive the owner permanently of the paper, which is merely copied and returned, because although the paper (however worthless) counts as property for the purposes of the law of theft, the information on it (however valuable) does not.5 And even where the blagger does intend to keep the paper, a charge of stealing a discarded sheet of paper looks artificial if the gravamen of the complaint is really the dishonest appropriation of the information on it.2. Unlawful interception of communications Contrary to s.1 of the Regulation of Investigatory Powers Act 2000 (alias RIPA),6 the key parts of which are as follows:

(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communi-cation in the course of its transmission by means of–

(a) a public postal service; or

(b) a public telecommunication system.

To this, subs.2 adds a further offence of intercepting a com-4 Williams v Phillips (1957) 41 Cr.App.R 5.5 Oxford v Moss (1978) 68 Cr.App.R 183: the unsuccessful theft prosecution of the student who, in advance of the exam, secretly borrowed and read a copy of the examination paper.6 A provision which, when it comes into force, will be repealed and replaced by ss.3-10 of the Investigatory Powers Act 2016: which largely copy it.

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munication “in the course of its transmission by means of a private telecommunication system”.These are either-way offences, which carry a maximum sentence of two years’ imprisonment. Their scope is lim-ited, however. Prosecution requires the DPP’s consent. And more fundamentally, they only cover blagging which is done either by opening and reading letters in the course of their transmission through post (as practised by the Welsh post mistress in Under Milk Wood) or by “doing phones”.7 By s.2(7), “doing phones” includes hacking into recorded voicemails – as Andy Coulson and others working for the News of the World discovered to their cost.8 But it does not cover other forms of interception which are no less intru-sive: for example, clandestinely recording a conversation held face-to-face, or even bugging a room or a car so as to overhear the words being spoken into a telephone by one of the parties to the conversation.9

2. Obtaining or disclosing personal data contrary to s.55 of the Data Protection Act 1998 (alias DPA), which by subs.(1) provides that:

A person must not knowingly or recklessly, without the consent of the data controller—

(a) obtain or disclose personal data or the information contained in personal data, or

(b) procure the disclosure to another person of the information con-tained in personal data.

To this, s.55(4) and (5) add further offences of selling and offering to sell personal data so obtained.Like the offence in s.1 of RIPA, the DPA offence covers some forms of blagging, but not others. As well as being restricted to “personal data” as the DPA defines it,10 it only applies to data held in a regular filing system which is man-aged by a “data controller”.11 This covers manual filing sys-tems as well as computerised ones, but only those which are sufficiently organised that they can be readily searched.12 So although the DPA offence would usually cover “doing bank accounts” it would not cover, for example, clandestine-ly copying a person’s private diary or private correspond-ence. A basic ingredient of the offence is that the data was obtained without the data controller’s consent, so if he con-sented – even improperly – there is no offence.13 And even where the offence potentially applies, criminal liability may be excluded by any of the defences listed in s.55(2), one of which is that “in the particular circumstances the obtain-ing, disclosing or procuring was justified in the public inter-est.” A further practical restriction is that prosecutions can only be instituted by the Information Commissioner or with the consent of the DPP. And lastly, and most importantly, the maximum punishment for the offence is only a fine. In 2008 Parliament gave the Secretary of State the power to in-crease the penalty, but persistent lobbying by the media has ensured that the power has not been exercised and blag-

7 An extensive definition of “interception” is set out in s.2. 8 Following a sensational trial in July 2014 Coulson, the former editor, and four others were sentenced to periods of imprisonment for conspiracy to commit offences contrary to s.1 of RIPA: see http://www.bbc.co.uk/news/uk-28160626 Rebekah Brooks, a previous editor, was acquitted.9 E [2004] EWCA Crim 1243, [2004] 1 WLR 3279.10 In s.1.11 Ibid.12 Durante v Financial Services Authority, [2003] EWCA Civ 1746.13 Although this may lead to the Information Commissioner exercising his power to impose an administrative penalty under s.55A of the DPA 1998.

gers who are convicted still face no risk of imprisonment.14

The new Data Protection Bill, which is currently being en-acted to keep the UK’s data protection law in line with the EU’s new General Data Protection Regulation, contains a clause which will eventually replace s.55 of the DPA 1998 with a new provision. But as it stands, the proposed new offence is closely modelled on the existing offence and will be subject to similar limitations.Interference with computers contrary to s.1 of the Computer Misuse Act 1990 (alias the CMA). By subs.(1),

A person is guilty of an offence if—

(a) he causes a computer to perform any function with intent to se-cure access to any program or data held in any computer;

(b) the access he intends to secure is unauthorised; and

(c) he knows at the time when he causes the computer to perform the function that that is the case.

This offence is intended to protect computers and com-puter programmes from hacking, rather than to protect any confidential data held in them. But the offence is committed irrespective of the hacker’s purpose. So if a blagger with computer skills hacks into a computer in order to obtain confidential information from the computer rather than to cause it to malfunction, the offence will be committed. Fur-thermore, in R v Bow Street Metropolitan Stipendiary Mag-istrate and Another15 the House of Lords decided that the offence is committed not only where a person hacks into a computer which he has no authority to use at all, but also where someone who is authorised to use a computer for one purpose abuses his access to it by using the computer for another. This being so, the CMA offence would catch not only the blagger who uses his own hacking skills to ex-tract data from someone else’s computer, but also one who (as in the Bow Street case) colludes with an employee of the computer owner who has access to the computer to get it for him. As it is punishable with two years’ imprisonment and as prosecutions are not subject to the DPP’s consent, the CMA offence is more powerful weapon against blag-ging than the DPA offence discussed above. But like the DPA offence, its scope is limited.A blagging operation may involve the commission of other criminal offences too, depending on how it is done; and these could include bribery, misconduct in public office, fraud, conspiracy to commit such offences and conspiracy to defraud. But even taking these possibilities into account, some of the most brazenly intrusive blagging operations will involve no criminal liability at all. Of these, the most obvious are entering private property without consent in order to obtain private information, or to plant bugging or surveillance devices, or to take photo-graphs of people without their consent. In 1990 the Calcutt Committee16 proposed a new criminal offence to penalise physical intrusions of this sort, except when done for the prevention or disclosure of crime or other seriously anti-social conduct, the protection of public health or safety,

14 “When the Information Commissioner sought the support of the Government and then Parliament to increase the penalties available to the courts for criminal breaches of the law, he was met with intense lobbying by the press (and by the Press Complaints Commission) challenging the proposition that breach of the criminal law by journalists, even on a wholesale, industrial basis should ever be capable of being visited with a custodial penalty.” Leveson Inquiry, Executive Summary, at §21.15 [2000] AC 216.16 Report of the Committee on Privacy and Related Matters (Chairman David Calcutt, QC), Cm 1102 (June 1990).

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The Surprising Second Life of Doli IncapaxBy Paul Jarvis1

When Parliament decided to abolish the presumption of doli incapax legislators did not make that abolition retro-spective with the result that where an offence is said to have been committed before 30 September 1998, the presump-tion continues to apply. It is difficult to shake the impression that Parliamentarians in 1998 did not consider introducing a retrospective abolition of the doctrine for the simple rea-son they did not foresee that in the future people would be prosecuted for crimes committed by them many years ear-lier when they were children aged 10, 11, 12 or 13. With the increase in prosecutions over recent years for histori-cal sexual offences, in some cases where the defendants were or may have been of that age at the time of the alleged offending, the presumption has been given an unexpected lease of renewed life. Dusting off a common law doctrine of such antiquity that was last subjected to considered scru-tiny by the criminal courts some twenty years ago in con-nection with very different offences to the ones in respect

1 Barrister, 6KBW College Hill, and Treasury Counsel at the Central Criminal Court. A special thank you to Nicholas Lennings for sending me a copy of his article that is referred to later in this piece.

of which the doctrine is now invoked is not without its dif-ficulties, however. Given the advances the criminal justice system has made in other areas around its view of children and their mental capabilities the time is ripe for the courts to review the principles that underpin the rejuvenated doc-trine of doli incapax and to reform the doctrine in a way that keeps faith with our modern understanding of child and adolescent psychology.Authoritative descriptions of the doctrine abound in the case law. Translated from the Latin, doli incapax means “in-capable of evil” or “incapable of committing an offence”.2 The presumption has two distinct limbs to it. The first limb is that the prosecution has to prove to the criminal standard that any defendant who was, or who may have been, be-tween the ages of 10 and 14 when the offence took place un-derstood that his conduct was seriously wrong as opposed to being merely naughty or mischievous. The rationale for the first limb is that a child of that age is presumed to lack the intellectual and emotional maturity to appreciate the dif-

2 R v T [2009] UKHL 20, [2009] 1 AC 1310 at [8].

or under some lawful authority. This recommendation the government rejected, on the ground that the new offence might interfere with “responsible journalism”17: an objec-tion that looks laughable in the light of the examples of intrusive behaviour by journalists described two decades later in the Leveson Report, and which also made it clear that: “These techniques were deployed against or in spite of the public interest.”18

But if (as seems clear beyond question) the criminal law is at present inadequate to deal effectively with blagging, cre-ating yet another specific offence designed to cover another specific form of it may not be the best way of dealing with the problem. In an informal conversation a colleague with administrative responsibilities was heard to say:

As far as we’re concerned, a person’s confidential information is their property, and they can expect us to safeguard it as we would any other property entrusted to us.

This reaction, I suspect, is one which would be shared by many others: not least, to judge from what he said in the BBC interview, Lord Prescott. And is this perhaps the way in which the criminal law should treat confidential informa-tion too? In criminal law a citizen’s right to enjoy his property, in the sense the Theft Act 1968 understands it,19 is comprehen-sively protected. By s.1 of the Theft Act, any appropriation of property belonging to another which is done dishonestly and with intent permanently to deprive is theft, punishable with seven years’ imprisonment. And this protection is reinforced by the Fraud Act 2006, which criminalises the dishonest use of false representations, unlawful non-disclo-

17 Privacy and Media Intrusion – the Government’s Response (Department of National Heritage, July 1995), Cm 2918, §3.26.18 Above, n.14, at §34.19 Theft Act 1968 s.4.

sures and abuses of position when done for the purpose of financial gain or causing financial loss to another. As we saw earlier,20 the courts ruled many years ago that confidential information, however valuable, does not count as property for the purpose of the law of theft; and as a mat-ter of policy, it seems to be generally accepted that this rul-ing was a wise one.21 Despite the similarities, the differenc-es between confidential information and the sort of things that count as property for the law of theft are significant, and for this reason it is thought that bringing confidential information within the law of theft would not be appropriate. Apart from problems like the difficulty of applying the Theft Act requirement of “intention permanently to deprive” to confidential information, at a more abstract level there is an important psychological difference in the way we feel about confidential information and about the sort of property pro-tected by the law of theft, and the limits we instinctively feel should apply to the freedom to enjoy them. Where property in the Theft Act sense is concerned, most people feel that the owner’s rights should be protected even if he is self-ish and the world would be a better place if he shared it, and so we disapprove of private enterprise attempts by his fellow citizens to “liberate” it, even if (unusually) their mo-tives for doing so are good. But where we feel the public interest requires a given person’s confidential information to be widely shared we do not usually disapprove when his fellow citizens obtain it and disclose it without his consent. However, if that is a valid reason for not turning blagging into theft, there is surely still a case to be made for the crea-tion of a new comprehensive criminal offence of improperly obtaining confidential information, in place of the untidy patchwork that imperfectly covers it today.

20 Oxford v Moss, n.5 above.21 Smith and Hogan’s Criminal Law (14th 2015) and authorities there cited, Simester and Sullivan’s Criminal Law (6th ed 2016), §13.3.

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ference between right and wrong and so he must therefore lack the capacity to form the mens rea of the offence. The second limb is that “evidence to prove the defendant’s guilty knowledge … must not be mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be”.3 It follows that the prosecution has to be in a position to point to some evidence beyond the evi-dence that is probative of the defendant’s commission of the offence in order to rebut the presumption that at the time of the offence the defendant was doli incapax. This further evidence must be “strong and clear beyond all doubt or contradiction”4 and not tenuous or ambiguous.The doctrine of doli incapax is centuries old. It features in the writings of Blackstone5 and Hale6 but came in for trenchant criticism in the mid-twentieth century, particu-larly at the hands of Professor Glanville Williams, who de-scribed the doctrine as “steeped in absurdity” and reflect-ing “an outworn mode of thought”7 because it means that “the more warped the child’s moral standards, the safer he is from the correctional treatment of the criminal law”.8 In C (A Minor) v Director of Public Prosecutions,9 Laws J latched onto that criticism when he held that the doctrine was “un-real and contrary to common sense”.10 The Divisional Court in that case purported to abolish the doctrine for reasons that Professor John Smith in his commentary on the case found to be “completely convincing”.11 Professor A.T.H. Smith was less convinced. Given that the law of insanity per-mitted a mentally disordered defendant to prove that he did not know that his act was wrong, how, he asked, can it be objectionable “to treat the immature offender in a compara-ble way?”12 Whilst noting the “adventurous spirit among the judges”, Professor John Smith expressed concern that the Divisional Court may have overreached itself by assuming the power to abolish a common law doctrine of such pedi-gree. When the case reached the House of Lords,13 Lord Lowery delivered the only substantive opinion and in it he expressed the view that “for better or worse”14 the doctrine continued to apply having received the stamp of legislative, judicial, governmental and academic recognition over the years. In his view the doctrine could only be abrogated by statute and not by the courts. Professor Birch recognised the House’s self-restraint in not abolishing the doctrine but she also noted that it had been open to the House to reform the doctrine so as “to meet modern needs” but clearly their Lordships declined to take that opportunity. In September 1997, the Home Office published a Consulta-tion Paper entitled Tackling Youth Crime, which contained two options to reform the doctrine. The first option was sim-ply to abolish it, the obvious effect of which would be that a child would “pass from complete criminal irresponsibility to full responsibility without any intermediate zone”.15 The second option was to reverse the presumption to create a defence whereby a child aged between 10 and 14 would be

3 Ibid, p.38F.4 C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1 at 38C.5 Blackstone’s Commentaries on the Laws of England, Book IV, 1st ed. (1769) pp. 23–24.6 The History of the Pleas of the Crown (1778 ed.).7 Criminal Law: The General Part, 2nd ed. p.820.8 “The Criminal Responsibility of Children” [1954] Crim LR 493, 495-496.9 [1994] 3 WLR 888.10 Page 894F.11 [1994] Crim LR 523–525.12 Professor A.T.H. Smith, “Doli Incapax Under Threat” [1994] CLJ 426 at 427.13 C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1.14 Page 38C.15 Per Lord Lowry in C (A Minor) v DPP [1996] 1 AC 1, pages 25H–26A.

entitled to an acquittal if he or she could prove on the bal-ance of probabilities that he or she did not know that what they had done was seriously wrong. The Government’s preference was for the first option. Of those who respond-ed to the consultation, 111 favoured the first option, 48 fa-voured the second option and 21 favoured retaining the pre-sumption. The Government published its White Paper16 in November 2017 in which it once again expressed its prefer-ence for the first option. That led to the introduction of the Crime and Disorder Bill into Parliament, which proposed to abolish the presumption altogether. Despite some resist-ance in the House of Lords17 the fate of doli incapax was sealed by the enactment of s.34 of the 1998 Act.18 The pos-sible re-emergence of the doctrine as a defence rather than a presumption was stamped upon in R v T, first by the Court of Appeal19 and then by the House of Lords.20 Lord Phillips, with whom the other members of the House agreed, held that by casting the presumption of doli incapax into the abyss Parliament had intended to send the defence down with it, contrary to some academic21 and judicial observa-tions22 that followed the enactment of s.34.It is worth noting that up to the time of its abolition, the reported cases where doli incapax featured tended, in the main, to concern non-sexual offending. Of those earlier cas-es referred to by Laws J in C (A Minor), for example, the of-fences consisted of murder,23 manslaughter,24 wounding,25 burglary,26 housebreaking and larceny,27 arson,28 criminal damage29 and minor public order matters.30 By contrast, since 2000, a search of Westlaw using the keywords “doli incapax” yields five authorities where the defendant in each one was charged with historical sexual offending against children said to have been committed when he was himself a child.31 During the debates in Parliament that led to the abolition of the doctrine it seems that no consideration was given to the possibility of the doctrine being called upon in future cases and presumably that was because Parliamen-tarians did not foresee the upsurge in prosecutions for his-torical sexual offences that has taken place in the last dec-ade or so. If Parliament had demonstrated prescience on that scale then perhaps the abolition of the doctrine would have been made retrospective but it is also conceivable that Parliament could have gone down the route of reforming the doctrine as per the second option in the Consultation Paper, thereby placing the burden on the defence to prove the defendant’s incapacity in such cases. As it is, the pro-

16 “No More Excuses: A new approach to tackling youth crime in England and Wales”, published in November 1997.17 In particular from Lord Goodhart QC who twice moved amendments to replace the presumption with a defence because he considered that “the complete abolition of the doli incapax rule is wholly inappropriate”: 12 February 1998 (Hansard) HL Debates) col 1316, Amendment No 174) and 19 March 1998 (Hansard) HL Debates) col 830-831).18 “Abolition of rebuttable presumption that a child is doli incapax. The rebuttable presumption of criminal law that a child aged ten or over is incapable of committing an offence is hereby abolished”.19 [2008] EWCA Crim 815; [2008] 3 WLR 923.20 R v JTB [2009] UKHL 20; [2009] 1 AC 1310.21 Professor Nigel Walker, “The End of an Old Song” (1999) 149 NLJ 64.22 The obiter dictum of Smith LJ in Director of Public Prosecutions v P [2008] 1 WLR 1005.23 R v Coulbourn (1988) 87 Cr.App.R. 309.24 R v Gorrie (1919) 83 JP 136.25 JM (A Minor) v Runeckles (1984) 79 Cr.App.R. 255.26 JBH & JH (Minors) v O’Connell [1981] Crim LR 632.27 B v R (1958) 44 Cr.App.R. 1.28 R v Smith (Sidney) (1845) 1 Cox CC 260.29 IPH v Chief Constable of South Wales [1987] Crim LR 42.30 A v Director of Public Prosecutions [1992] Crim LR 34.31 [Current as of 12 March 2018]: R v AM [2001] EWCA Crim 118 (indecent assault), R v T (causing children to engage in sexual activity), R v H [2010] EWCA Crim 312 (indecent assault), R v M [2016] EWCA Crim 674; [2016] 4 WLR 146 (indecent assault) and R v PF [2017] EWCA Crim 983 (indecent assault).

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spective nature of the abolition coupled with the willingness on the part of the prosecuting authorities to charge defend-ants with sexual offences committed by them decades ago when they were children has given the presumption a rath-er unexpected burst of vigour.It has taken the courts a little while to catch up with this resurgence in the use of the presumption. Nowhere is that more evident than in the treatment of the doctrine as set out in the model directions to judges, first, in the Crown Court Bench Book, and then in Part I of the Crown Court Com-pendium. The Crown Court Bench Book – Directing the Jury was first published in March 2010. It referred to doli incapax at p.13, but only to the extent of informing judges that the doctrine had been abolished.32 Its replacement, the Crown Court Compendium, was first published in May 2016. Part 1 of the Compendium contained a passage at para.7—1 that was very similar to the one at p.13 of the Bench Book. The Compendium did not set out the elements of the doctrine of doli incapax and nor did it suggest what a model direc-tion concerning the doctrine should look like. An updated version of Part 1 of the Compendium appeared in February 2017. This time para.7—1(2) told judges that:

[i]n cases (most commonly of historic sex) where the date of the alleged the (sic) offence is or may be before 30th September 1998 and the de-fendant was over 10 years of age but under 14 years of age at the date of the offence the court will have to direct the jury on the rebuttable presumption of ‘doli incapax’.

An example direction was then given where the judge charges the jury to consider whether, when the defendant did the act alleged, he knew that what he was doing was seriously wrong and not merely naughty or mischievous. No mention was made in that version of the Compendium of the need for the evidence in rebuttal to arise separately from the conduct said to constitute the offence. In R v M,33 the Court of Appeal reminded those who had overlooked the existence of the second limb to the doctrine and this prompted a further revision of the Compendium in Novem-ber 2017 to make it clear that evidence to prove the defend-ant knew his conduct was seriously wrong must not be sim-ply proof of the doing of the act charged.34 Having originally ignored it altogether, through to setting it out in an incomplete form, the Compendium now repre-sents an accurate statement of the law as it relates to the presumption of doli incapax; but that is a version of the law that has not developed in any meaningful sense since the presumption was abolished nearly twenty years ago. The rather simple terminology employed in the Compendium may have been apt to explain a doctrine that was histori-cally used in proceedings brought against children for vio-lent or acquisitive crimes committed by them in their very recent past, but where the doctrine is invoked (as it is now) in proceedings brought against adults for sexual offences committed by them many decades ago when they, and their victims, were children, the language of “seriously wrong” is singularly unhelpful.Laws J in C (A Minor) made this point in 1994. Referring to the need for the prosecution to establish a specific under-

32 To like effect, see p.5 of the Crown Court Bench Book Companion, published in December 2011.33 [2016] EWCA Crim 674; [2016] 4 WLR 146, and see also R v PF [2017] EWCA Crim 983.34 Again, at para.7-1(2).

standing in the mind of the child defendant that his act was seriously wrong, he described this requirement as “concep-tually obscure”35 and posed the question: what is meant by “seriously wrong”? In his view it could not mean “against the law” because ignorance of the law is, of course, no ex-cuse, and so it had to mean that “what must be proved is that the child appreciated the moral obliquity of what he was doing”.36 He referred to a passage from Robert Goff LJ in JM (A Minor)37 to the effect that the first limb of the doc-trine has nothing to do with morality and then rounded off that section of his own judgment by asking what “seriously wrong” means if it does not mean “legally wrong” or “moral-ly wrong”? Sadly, he did not answer his own question. Lord Lowry in the House of Lords recognised this difficulty. In the course of his judgment he agreed that the phrase “seri-ously wrong” is conceptually obscure,

... and that view is confirmed by the rather loose treatment accorded to the doli incapax doctrine by the textbooks, but, when the phrase is contrasted with “merely naughty or mischievous. I think its meaning is reasonably clear,”38

although he did not explain what that meaning is. It is also a rather unfortunate aspect of his judgment that when he turned to set out the first limb of the doctrine he described it thus:

the prosecution must prove that the child defendant did the fact charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief,

and in so doing omitted the word “seriously” with the re-sult that his own words sought to contrast naughtiness only with wrongfulness and not with serious wrongfulness. Lord Phillips made the same slip in R v JTB.39 In the context of historical sexual offences committed by the defendant when he was a child under the age of 14, it remains unclear what “seriously wrong” actually means and the domestic authorities offer little assistance. It must mean the defend-ant himself understood his actions were seriously wrong but seriously wrong by whose standards, and, just as impor-tantly, by the standards of what period in time? Moreover, to what other evidence beyond the acts constituting the of-fence should the jury be invited to look when considering whether the defendant did consider that his actions were seriously wrong?In some other countries the doctrine of doli incapax sur-vives. In Australia, doli incapax can be found both in the Commonwealth code and in the codes or statutes of the in-dividual states that make up the commonwealth of Austral-ia. In the recent case of RP v The Queen,40 the High Court of Australia reflected on the operation of the doctrine in New South Wales. In that case the 20-year-old appellant was con-victed in August 2014 of two counts of aggravated indecent assault and two counts of sexual intercourse with a child under 10 years. The offences took place when he was 11 or 12 and the victim in each count was his younger brother who was aged six or seven. The police interviewed the vic-

35 Page 895A.36 Page 895B.37 JM (A Minor) v Runeckles (1984) 79 Cr.App.R. 255.38 C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1, 33D.39 [2009] 1 AC 1310 at p.1328, para.3.40 [2016] HCA 53; 91 ALJR 248.

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tim when he was 15 and he provided them with his account. At trial, the evidence was wholly documentary. The appel-lant admitted his brother’s account, but maintained that he had not known at the time that his conduct was seriously wrong. The judge at first instance, who tried the case alone, was satisfied to the criminal standard that the presumption was rebutted and the Court of Appeal of New South Wales upheld those convictions. The High Court disagreed, and quashed the convictions on two of the counts because the prosecution had adduced insufficient evidence to discharge the onus of proof that lay with it.Kiefel, Bell, Keane and Gordon JJ delivered a single judg-ment. In doing so they referred to the criticisms of the doc-trine made by the Divisional Court and the House of Lords in C (A Minor), but in their view:

it is not self-evident that the policy of the law is outmoded in requiring that the prosecution prove the child understood the moral wrongness of the conduct.

They held that the focus of the first limb of the presumption is on the intellectual and moral development of the child at the time of the offence. For them, it was the moral wrong-ness of the act in the mind of the child that mattered. The words “seriously wrong” meant no more than that. The fo-cus on the moral wrongfulness of the act directs attention to the intellectual and moral development of the particular child. In his concurring opinion, Gageler J stated that the child has to understand that his actions are seriously wrong by normal adult standards. In other words, the child’s un-derstanding was not to be judged against his own stand-ards or even against the standards of children of his age or maturity, but against the standards of adults and as those standards existed at the time of the offending. The majority emphasised that where the offence consists of sexual activ-ity between children the trier of fact should bear carefully in mind that it is common for children “to engage in forms of sexual play and to endeavour to keep it secret” but even where the conduct complained of,

went well beyond ordinary childish sexual experimentation this does not carry with it a conclusion that [the child] understood his conduct was seriously wrong in a moral sense.

On the facts of RP, the conclusion of the trial judge that the appellant knew his actions in having sexual intercourse with his brother were seriously wrong was largely based on inferences that he knew his brother was not consenting and that he must have observed his brother’s distress, but in the majority’s view it could not be assumed that a child of the appellant’s age at the time of the conduct understood that the infliction of hurt and distress on a younger sibling involved serious wrongdoing. Where there was evidence of the child having intellectual limitations, there had to be clear evidence that notwithstanding those limitations he knew how seriously wrongful his actions were. That was not the case for RP. In so holding the High Court made the important point that in deciding whether the child was suf-ficiently mature to appreciate that his conduct was morally wrong, the trier of fact should look at all of the evidence and not just the evidence from which the prosecution submitted the presumption could be rebutted.Drawing on the observations in RP, in domestic cases of

historical sexual offending when the defendant was below the age of 14 at the time, the application of the doli incapax presumption requires the court to direct the jury to focus on the defendant’s capacity to understand the moral quality of his actions at the time by reference to adult standards at that time. As has been written elsewhere,

the concept of knowing something is ‘seriously wrong’ involves more than a child-like knowledge of right and wrong, or a simple contradic-tion. It involves more complex definitions of moral thought involving the capacity to understand an event, the ability to judge whether their actions were right or wrong (moral sophistication) and an ability to act on that moral knowledge.41

It should also be born in mind that as a child, the defendant may have had sufficient capacity to make moral decisions regarding some aspects of his life but on the evidence he may have had insufficient maturity to understand the crimi-nally culpable nature of his actions as regards the conduct said to constitute the offence.42 This will require the jury to consider the defendant’s background and his psychologi-cal and emotional development rather than simply impos-ing their own modern standards of right and wrong upon him. If the defendant was sexually abused as a child, that could be relevant to his understanding of the wrongness of committing sexual acts against his own siblings. Of course, the further on in time the trial is from the events charged in the indictment, the more the evidence of the defendant’s background and his mental presentation as a child is likely to have “degraded”, possibly to the point where it could be genuinely impossible for the prosecution to rebut the pre-sumption from the surrounding evidence.These considerations should have three powerful conse-quences for the prosecution in England and Wales of sexual offences committed by children generally as well as histori-cally. The first is the question whether it really was (as then assumed) a prudent move to abolish doli incapax in its en-tirety in 1998. It is suggested that law-makers should now give serious consideration to fully restoring the doctrine of doli incapax as a defence available to children43 charged with such offences. The second is that before charging a defendant with such an offence where the presumption is engaged, prosecutors should be careful to scrutinise all of the evidence known about the defendant at the time of the conduct complained of in order to assess whether there is a realistic possibility of persuading the jury to the criminal standard that the defendant had the capacity to understand, and that he understood, the moral wrongfulness of his ac-tions. The third is that juries need more assistance from judges than a simple exhortation that they have to be sure the defendant knew his actions were seriously wrong. That question has layers of complexity concealed within that need to be peeled back so the jury can understand precisely what it has to find and what the evidence is upon which such a finding can be based. At the present time that has not happened but it should, and soon, in order to breathe much-needed vibrancy and contemporaneity into the pre-sumption of doli incapax.

41 Nicholas Lennings and Chris Lennings (2014), “Assessing Serious Harm Under the Doctrine of Doli Incapax”: A Case Study, Psychiatry, Psychology & Law, 21:5, 791–800, at 792.42 Ibid, at 793.43 Whether under 14 or even older children.

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Issue 3 April 24, 2018 Archbold · 2018-04-09 · 3 Archbold Review Thomson Reuters K Limited 2018 Issue 3 April 24, 2018 diction’s scope to appropriately very limited circumstances,