Case Law Updater

This case law updater covers the period November 2022 – January 2023.

Our updater team comprises Joseph Sinclair and Rachel Pain.

NOVEMBER

Commissioner of the Police of the Metropolis v A Police Conduct Panel [2022] EWHC 2857 (Admin)

Police Conduct Panel – Judicial review – Sanctions Decision – Firearms

Commissioner of the Metropolitan Police sought to have sanctions reviewed of officers who falsified firearms reclassification shoot records. The panel erred in law by considering mitigation testimonials when assessing seriousness and was Wednesbury unreasonable in its analysis of dishonesty.

The sanctions decision was quashed and remitted to a freshly constituted panel.

[45] “In a police misconduct case a non-trivial failure to follow the Outcomes Guidance will highly likely amount to an error of law.”

Hanh Tuyet Nguyen v Rex [2022] EWCA Crim 1444

Appeal Against Sentence – Unrepresented Defendant – Converting Criminal Property – Concealing Criminal Property – POCA 2002 – CBA Action

The appellant’s sentence was quashed on the basis she had been unrepresented due to the Criminal Br Association days of action. The same custodial sentence was imposed, however, upon reconsideration of the sentence.

[37] “The appellant was in no different position to that of someone whose counsel was ill on the day of the hearing or had been delayed by a rail strike; on the facts of her case, it was unlawful to sentence her unless and until, for proper reason, her representation order was revoked or withdrawn.”

DECEMBER

The Chief Constable of West Midlands Police (On the Application Of) v Police Misconduct Panel [2022] EWHC 3076 (Admin)

Police Misconduct Panel – Judicial Review – Sanctions Decision – Equality & Diversity

Appeal on behalf of the chief constable against the Police Misconduct Panel’s findings in relation to professional standards breaches, and decision to sanction with a final written warning, after an officer gave a fictitious account of a transphobic incident during an interview.

The court emphasised it would only interfere in cases involving genuine public law errors, as opposed to mere disagreement with decisions or instances of undue leniency. The application was dismissed.

[32] “The lie told by the Officer cited a fictitious example of discriminatory treatment and the Officer’s asserted response to it, but the conduct itself (ie the telling of that lie) did not constitute direct gender reassignment discrimination.”

[34] “the Panel had been entitled to draw the implicit qualitative distinction between disrespectful and discourteous conduct directed at a particular individual and that of which such an individual might be said to be the subject.”

[37] “The weight to be attached to each such factor was, classically, a matter for it to assess… No public law error is demonstrated in the Panel’s consideration of the Officer’s rank, position of trust, or the nature and purpose of the lie which she had told.”

[40] “[the grounds] constitute no more than a disagreement from the panels oral and written reasons.”

DPP v Peter Bailey and Others [2022] EWHC 3302 (Admin)

Aggravated Trespass – Section 68 CJPOA – Case Stated – Knowledge or Recklessness

There is no requirement to prove that a defendant either knew or was reckless as to whether he or she is a trespasser. The appeal was allowed, and the case remitted for a retrial.

[37 – 40] “The offence was clearly intended to build on the civil law of trespass…had Parliament intended trespass to mean something different in section 68 from its meaning in the law of tort, it would have said so.”

[43] “in most cases… it will be plain the protest is taking place on private land…if there is any room for doubt, then in our judgment it is consistent with both the spirit and purpose of the legislation that the responsibility for this, lies with the trespasser. What matters in the context of this offence, is whether the person is a trespasser, not whether they intended to trespass.”

[57] “The presence of an intention requirement for the aggravated element of the offence mitigates any potential unfairness.”

Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605

Extension of Time Limits – Rights of Appeal – Regulatory Proceedings

The Appellant was a paramedic registered with the HCPC. A finding of impairment was made against him on misconduct grounds. He filed his appeal notice 2 months outside the 28-day limit required by the Health Professions Order 2001. The Appellant had difficulties in obtaining legal advice and filing his appeal in the High Court from Gibraltar.

[49] “Thus, there is a discretion (or duty) to extend time for the bringing of a statutory appeal but only in exceptional circumstances, namely where to deny a power to extend time would impair the very essence of the right of appeal. That is the key question. Once the discretion (or duty) arises, it must then be exercised to the minimum extent necessary to secure ECHR compliance.”

[52 & 54] “…Put simply, and without being in any way prescriptive, exceptional circumstances are unlikely to arise where an appellant has not personally done all that they could to bring the appeal in time. There is no independent jurisdictional requirement that a litigant must have done personally all that he could.

”[T]he central and only question for the court is whether or not “exceptional circumstances” exist… Answering the question may or may not include consideration of whether or not the litigant has done everything possible to serve within time, depending on the facts of the case. Once the discretion (or duty) arises, it must then be exercised to the minimum extent necessary to secure compliance with Article 6 rights.”

[55] “…However, ultimately, each case will turn on its own facts and the assistance to be drawn from the outcomes on the facts of other cases may be limited.”

JANUARY

Gold v R [2023] EWCA Crim 22

Appeal Against Sentence – Concurrent Sentences – Appeal Against Conviction – CCTV – Jurors – CCRC

The single judge granted leave to appeal against conviction on the basis of the use of CCTV in examination in chief, and a juror note stating a jury member recognized one of the complainants. The Single Judge invited the court to direct the CCRC to investigate the position with the Juror. The appeal was dismissed

The use of CCTV footage a was found to be fair:

[24-26] “Had there been a dispute about what the CCTV showed we can see that there might have been the potential for unfairness in proceeding as the prosecution wanted, but that was not the case…The witness having [gave] evidence consistent with the CCTV footage”

The Judge had also not erred in refusing the application to discharge the jury:

[35] “The victim of the offence, the security guard whom she recognised, was not a witness. Evidence of the events constituting the offence involving him came from other people. The question was whether or not the appellant had a knife.”

The application under Section 23A of the Court of Appeal Act, to direct the CCRC to investigate the position of the juror as therefore also refused.

Leave to appeal against sentence was refused:

[3]“The judge properly reflected the whole of the criminality in the sentence on Count 1, imposing concurrent prison sentences on the other offences of which the appellant had been convicted at trial. However, it was not appropriate to impose no separate penalty in respect of the offences to which he had pleaded guilty. Concurrent sentences of suitable length should have been imposed”

BH v Norwich Youth Court & Anor. [2023] EWHC 25 (Admin)

Youth Court – Jurisdiction – Judicial Review – Sentencing

BH was charged with 3 counts of rape that took place when he was 16. The judge at first instance decided that, in spite of the lengthy sentence BH would receive on conviction, the Youth Court would retain jurisdiction. He challenged this decision by way of judicial review.

[24-25] “We are satisfied that Parliament at no stage intended that a failure to comply with the procedure set out in Section 24A should remove the jurisdiction of the Youth Court to try indictable offences summarily…

“Since the statutory provision with which we are concerned was procedural, failure to comply with it could only be a basis for a challenge to the allocation if it were to affect the fairness of the proceedings or prejudiced BH… We do not suggest that failing to provide the defendant with the opportunity to indicate a plea of guilty is a course to be approved. It is a procedure designed to improve efficiency. However, on the facts of this case, the failure was of no practical effect.”

[37] “We accept that there may be cases where a more nuanced approach is necessary [in considering jurisdiction]. If a young person very close to their 18th birthday makes their first appearance in the Youth Court in relation to an offence allegedly committed only shortly before that first appearance, the court will give consideration to the likely sentence with those features in mind. They might allow the court more easily to conclude that there is a real prospect of a sentence in excess of 2 years. That will be a matter of judgment in each case i.e. as to whether the facts put the case so near to the boundary that a nuanced approach is required.”

[58] “…There is no right to jury trial under substantive domestic law for a 17 year old.”

R (oao World Uyghur Congress) v SSHD & Ors. [2023] EWHC 88 (Admin)

Judicial Review – Proceeds of Crime – Investigations

The claimant NGO challenged the defendants’ decision not to investigate potential breaches of s.1 of the Foreign Prison-Made Goods Act 1897, or consider their powers under the Proceeds of Crime Act 2002. Rather than arguing irrationality, it was argued that the investigative agencies had misunderstood the evidential threshold required for a breach of article 1.

[91] “…the scope of the court’s jurisdiction [in judicial review is] based on the authorities such as Corner House [[2008] UKHL 60], which reflect that the court will be slow to interfere with the exercise of investigatory and prosecution powers that are vested in parties such as the Defendant in the present case. As was repeatedly observed on both sides of the case during the hearing, the Claimant does not advance a case based on Wednesbury unreasonableness, and on the authorities it would be very challenging for the Claimant to do so.”