BAD CHARACTER

R v NGUYEN [2008] EWCA Crim 585

At a trial for murder the Crown’s case was that N had attacked the Deceased with a glass in a public house.  N’s case was that he was acting in self-defence.  There was evidence of a previous incident in which D had injured three men with a broken glass in a public house, 18 days before the murder.  The Crown sought to adduce this evidence under the Criminal Justice Act 2003, s.101(1)(d) (important matter in issue between the defendant and the prosecution), rather than to prosecute. The evidence was admitted and N was convicted.

Held:  There had been no unfairness to N by the admission of evidence of bad character.  The mere fact the Crown chose to rely on relevant bad character evidence, which it decided not to make the subject of a criminal charge, could not of itself have such an adverse effect on the fairness of proceedings that the court ought not admit it.

*

ABUSE OF PROCESS

R (H) v GUILDFORD YOUTH COURT [2008] EWHC 506

H was alleged to have kicked a fellow school pupil in the jaw causing a fracture.  In interview the police indicated that the matter would be dealt with by way of a formal warning.  H was subsequently charged with inflicting GBH contrary to s.20 of the Offences Against the Person Act 1861.  It was held that the prosecution had reneged on a promise and that this amounted to an abuse of process.  However they found that H had suffered no prejudice and, having regard to the seriousness of the offence and the public interest in maintaining a prosecution, declined to stay the proceedings.  H pleaded guilty to the offence.

Held:  Whether or not there was prejudice to the Defendant, it would bring the administration of justice into disrepute to allow the Crown to revoke the original decision without any reason being given as to what was wrong with it.   R v Bloomfield [1997] 1 Cr App R 135 applied.  The fact that the promise by the prosecution was not made in the presence of a judge is not a critical factor.  There is a clear public interest in  upholding a promise made by an officer of the State.  The seriousness of the charge is not a valid factor in distinguishing this case.

 

SENTENCING UPDATE

 

GRIEVOUS BODILY HARM WITH INTENT

Attorney General’s Reference (No. 3 of 2008) sub nom R v Neil Brown (6th March 2008)
The Attorney General referred as unduly lenient a sentence of two years' imprisonment imposed on the defendant for attempting to cause grievous bodily harm with intent. The complainant had hit the defendant’s brother and was later approached by a quad bike. The quad bike was rammed into his leg, knocking him over. A passenger on the quad bike sprayed toxic liquid into the complainant’s eyes. The complainant ran but was pursued by the quad bike and driven into on two more occasions. He sustained abrasions, multiple soft tissue injuries, possible damage to his kidneys and chemical injuries to his eyes.
The Attorney General submitted that the offence was motivated by revenge and the quad bike was used in effect as a weapon to inflict very serious injuries and a toxic chemical spray was used. The Court of Appeal held that the sentence was unduly lenient and that it was one well outside the range of what could properly be passed. The fact that the actions were an attempt and no serious injuries occurred had to be taken into account. If serious injuries had occurred, the level of sentence imposed would have been in a different bracket. However, it was an attempt to cause such injuries, aggravated by the use of a toxic substance. It was appropriate to substitute for a sentence of four years.

CONSPIRACY TO DEFRAUD

R v Michael Bright (6th March 2008)
EWCA [2008] Crim 462

The appellant appealed against a sentence of seven years' imprisonment imposed following his convictions on two counts of conspiracy to defraud. B had formed, and was the managing director of, an insurance group. The companies were later put into liquidation causing a loss of approximately £1 billion. It was the prosecution case that the appellant and two co-defendants had dishonestly and deliberately tricked actuaries into basing their certification on dishonest representations. Once the company's financial difficulties had been appreciated, the appellant and a co-defendant dishonestly negotiated three substantial reinsurance contracts. The appellant was originally charged with a single count of conspiracy to defraud. The prosecution added counts of fraudulent trading contrary to the Companies Act 1985 s.458 in case the jury found no conspiracy was proved. Prior to sentence the appellant submitted that there was no distinction between the counts of conspiracy to defraud and conspiracy to trade fraudulently and the court should approach sentence on the basis that the maximum sentence was seven years' imprisonment. The judge accepted these submissions and imposed two concurrent sentences of seven years' imprisonment. The appellant contended that the sentence imposed was wrong in principle and that by imposing the maximum sentence the judge must have ignored his personal mitigation (his age of 63 years, his good character, poor health and the delay between the first investigations in 2002 and the date of sentence).
The Court of Appeal held that the conclusion that the sentences were limited to the maximum sentence for offences of fraudulent trading was wrong. The maximum sentence for conspiracy to defraud was set by the Criminal Justice Act 197 s.12(3) following the enactment of s.485 of the 1985 Act. Nothing in the legislative structure suggested that conspiracy to defraud might not be prosecuted whenever fraudulent trading was integral to the conspiracy. The counts of conspiracy to defraud were appropriate charges given the magnitude of the appellant’s criminality. Accordingly the maximum sentence available was ten years' imprisonment and not seven years. It was open to the court to go behind the maximum sentence publicly announced by the trial judge. The court had a responsibility to consider whether the sentence under appeal was wrong in principle or manifestly excessive on the basis of a correct, not a mistaken, view of the maximum sentence. The conspiracy to defraud was a crime of the utmost gravity and therefore little or no allowance was appropriate for the appellant’s personal mitigation and no allowance should be made for any delay between the first investigations and the date of sentence. Accordingly the sentence imposed was justified. Appeal dismissed.

IMPRISONMENT FOR PUBLIC PROTECTION

R v Barrington Taylor (22nd February 2008)
EWCA [2008] Crim 465
The appellant appealed against a sentence of imprisonment for public protection with a minimum term of eight years imposed following a conviction on two counts of robbery and assault occasioning actual bodily harm. The offences involved different complainants. In relation to the first incident, the jury had been satisfied that the appellant had robbed the complainant and kicked her severely. The judge said that it was one of the most serious offences of assault occasioning actual bodily harm that he had ever seen. The second offence involved an accomplice who took the complainant’s mobile phone, and when the complainant resisted the appellant produced a knife and minor injuries were caused. The judge sentenced the appellant to two concurrent determinative sentences in respect of the assaults occasioning actual bodily harm.
The Court of Appeal held that the trial judge made no reference to the 2006 sentencing guidelines on robbery. He had a duty to have regard to those guidelines in accordance with the Criminal Justice Act 2003 s.162. Where there were guidelines it was expected that a judge would explain in his reasons if he departed from them. A starting point of eight years was appropriate and the sentence should have been reduced to between two to seven years. Overall, a notional determinative sentence should have been 14 rather than 16 years.