FITNESS TO PLEAD

 R v Norman, Court of Appeal, 30^th July 2008 (published in The Times 21^st August 2008) Once it was clear that there was an issue as to unfitness to plead, it was necessary to ensure very careful case management so that full information was provided to the court without delay.  The Court of Appeal, Criminal Division, gave guidance after quashing a finding against the appellant at Lewes Crown Court, that, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964, as inserted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by the Domestic Violence, Crime and Victims Act 2004, he did the act or made the omission charged against him, namely child abduction, contrary to section 2(1)(b) of the Child Abduction Act 1984.  LJ Thomas, giving the reserved judgment of the court, said that if the court determined that the appellant was unfit to plead, then it was the court’s duty, under section 4A(2) of the 1964 Act, carefully to consider who was the best person to be appointed by the court to put the case for the defence.  The duty was a personal duty of the court which had to consider afresh the person who was to be appointed, not necessarily the same person who had represented the defendant to date, as it was the responsibility of the court to be satisfied that the person appointed was the right person for this difficult task. The responsibility placed on the person so appointed was quite different from the responsibility placed on an advocate where he or she could take instructions from a client. Given the responsibility that the Act placed on the court, it would not be unusual if the judge needed a little time to consider who was the best person to be so appointed.  Under the present legislation, the Court of Appeal, Criminal Division, could not order a retrial, save in very limited circumstances. Serious public concern could arise where the court considered a verdict unsafe and was compelled to enter an acquittal and nothing further could be done, so that the public interest could not be protected.  Their Lordships hoped that Parliament might give consideration to this lacuna in the statutory provisions and consider granting the Court of Appeal power to order a retrial of the issue as to whether the defendant did the act with which he was charged.

BAD CHARACTER

 R v Freeman; R v Crawford [2008] EWCA Crim 1863 Freeman appealed against his convictions for indecent assault and sexual assault of a child. Crawford appealed against his convictions on two counts of robbery. Freeman’s indictment related to separate complaints made by two young girls. The first offence had occurred about four years before the complaint was raised. At trial Freeman applied to sever the counts relating to the two incidents on the basis that the joint trial would prejudice his ability to explore in detail the reasons for the lateness of the complaints made by the first complainant. The application was refused. Crawford’s indictment related to two similar offences of street robbery occurring a few weeks apart. At trial the prosecution applied to adduce bad character evidence in relation to three previous convictions for street robbery and applied for leave to use the evidence from each of the offences on the indictment in relation to the other. The applications were granted. The Court of Appeal held that one count in an indictment was capable of being admitted as bad character evidence in relation to any other count in the indictment if it met any of the criteria or gateways in the Criminal Justice Act 2003 s.101(1). When it was submitted that evidence in relation to one count was admissible in relation to another, it was not always helpful to concentrate on the concept of propensity when the nature of the evidence was such that, in itself, it was capable of being probative in relation to another count, in the sense that it made it more likely either that the offence was committed or that the defendant committed the offence. Whilst a jury had to be reminded that it had to reach a verdict on each count separately it was entitled, in determining guilt in respect of any count, to have regard to the evidence in relation to any other count, or any other bad character evidence if that evidence was admissible and relevant. In cases of cross-admissibility it was too restrictive an approach for a jury to first determine whether it was satisfied on the evidence in relation to one of the counts of a defendant's guilt before it moved on to using the evidence in relation to that count when dealing with any other count in the indictment.  In the case of Freeman, the Court of Appeal held that the judge's decision refusing to sever the counts could not be faulted. It was clear that the evidence was admissible under s.101(1)(d) of the 2003 Act and, although the judge dealt with it on the basis of propensity, there was no prejudice to Freeman. In relation to Crawford, the Court of Appeal held that the evidence of his previous convictions were clearly material evidence that supported the prosecution's case that Crawford had committed the robberies in question. Further, each of the two offences were admissible in relation to the other as the evidence of each made it more likely that it was Crawford who had committed the other.  Rupert Hallowes represented Freeman. _____________________________________________________________________  

SENTENCING UPDATES

SENTENCE: BLACKMAIL

 R v M [2008] EWCA Crim 1915The appellant appealed against a sentence of four years' imprisonment imposed following his conviction for blackmail. The complainant had sexually assaulted the appellant. Many years later, the appellant visited the complainant at his home and asked whether he remembered him. The appellant asked the complainant to give him £5,000, which the complainant gave, so that he could go to Switzerland and commit suicide. Subsequently, the complainant received a bereavement card that contained a purported threat to his life unless he agreed to surrender an additional £50,000. He did not comply with the demand and, some weeks later, he received a letter that again contained a purported threat to his life. Thereafter, the appellant was arrested. He pleaded guilty to an offence of blackmail.
The Court of Appeal held that the appellant had not blackmailed the complainant by way of threat to expose his past sexual activities, but rather he had threatened the complainant with serious violence over an extended period of time. In those circumstances, a sentence of imprisonment was necessary. However, bearing in mind the appellant's background and the undoubted effect that the complainant’s assault had had on him, a sentence of four years' imprisonment was manifestly excessive. Such a sentence would have been appropriate after a trial but not where the appellant had pleaded guilty. Accordingly, the sentence was reduced to two years and eight months.
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SENTENCE: THEFT R v  Houghton, Court of Appeal, 6^th August 2008 (published in The Times 6^th August 2008) The appellant appealed against a sentence of three year's imprisonment imposed for theft perpetrated against her employer. She had worked as a manager at a newsagent. The profits of the business became so low that the employer was forced to consider declaring herself bankrupt and in order to minimise her losses she was forced to make three of her staff redundant so that the appellant remained the only employee. The appellant was aware of her employer's financial difficulties and offered to loan her money in order to keep her business afloat, but her employer refused. Later, the employer became suspicious of the appellant, who was living a lifestyle that displayed a degree of wealth disproportionate to her income as manager. The employer installed security cameras in the store in order to monitor the appellant's activities. Those cameras recorded that the appellant was frequently taking money from the till. The appellant was arrested and admitted to having stolen nearly £40,000 over a period of five years whilst working for her employer. The recorder determined that the aggravating features of the case warranted a sentence of three years' imprisonment. The appellant submitted that the amount of money she had taken was only a midway sum and not at the higher end of the guideline scale, as such, the recorder should not have started from the highest point of three years' imprisonment but from a lesser term before applying credit for her early guilty plea.
The Court of Appeal held that the amount that was stolen was but one consideration the court would take into account when looking to sentence an offender for theft. In most cases, the courts would look to the level of trust placed on the offender by the victim when assessing culpability. In the instant case, there could not have been a higher degree of trust placed on the appellant as sole manager of the business. That the appellant wantonly and callously abused such trust over a long period of time, knowing that she was causing serious harm to her employer and fellow employees, and despite that knowledge continued to steal from her employer, justified the imposition of a suitably strict sentence.