Crime | Case Law Update | November 2024

R v Bassaragh [2024] EWCA Crim 20

Firearms 5-year mandatory minimum sentence – pregnancy – exceptional circumstances.

Principle: Appeal against a sentence for possession of a prohibited firearm where the mandatory minimum sentence of five years’ imprisonment had been imposed following a guilty plea. Pregnancy will not always be an exceptional circumstance. However exceptional circumstances maybe found when pregnancy is combined with other factors such as strong personal mitigation.

Background: The applicant, aged 22, was in possession of a loaded pistol. She pleaded guilty on the basis that she was a custodian of the firearm for her boyfriend at the time. The sentencing hearing resulted in no exceptional circumstances being found to depart from the statutory minimum sentence. 

The appeal was brought on the basis of fresh evidence of pregnancy which was not available to the applicant at the time of sentencing. Following routine testing during her imprisonment, the applicant had learned that she was pregnant. 

The Court of Appeal heard evidence detailing the general high risk of prison pregnancies and the risks applicable to the applicant specifically:

• Her ethnicity (as a black woman) increasing the risks of adverse pregnancy outcomes;

• Her previous history of pregnancy loss;
• Her family history of premature labour.

Further, the applicant had strong personal mitigation including good character, a low risk of re-offending, regular employment, the fact she was still a young adult, and a strong prospect of rehabilitation increased by her upcoming motherhood.

Held: The principles by which a sentencing court is to decide whether there are exceptional circumstances are now set out in the Guideline. Any reference to case law pre-dating the Guideline to identify those principles is misplaced. In relation to those principles, the Court noted the following:

 ii) the court must ask whether the circumstances are truly exceptional to ensure that the deterrent purpose of minimum sentences is not too readily undermined (paragraph 10); 

iii) the existence, or a totting up, of multiple mitigating factors is not enough (paragraph 12); and iv) there is a single ultimate test, as stated in paragraph 9, viz. whether the imposition of the statutory minimum sentence would, in all the circumstances of the individual case, result in an arbitrary and disproportionate sentence.”

The Court granted the appeal on the basis that the fresh evidence of pregnancy and risks when considered alongside the strong personal mitigation amounted to “exceptional circumstances”:

R v BVY [2024] EWCA Crim 1355

Admissibility – non defendant bad character – credibility.

Principle: The Court of Appeal decided that the judge had not erred as a matter of legal principle and was not unreasonable in his assessment that the non-defendant bad character evidence did not have substantial probative value in relation to credibility under s.100(1)(b) Criminal Justice Act (CJA) 2003. 

Background: The appellant was convicted on two counts of sexual assault of a child under 13 and one count of rape of a child under 13. There were two complainants (C1 and C2). 

During trial, the defence made an application under s.100(1)(b) CJA 2003 to admit non-defendant bad character evidence of C1. The evidence sought was a school record completed before the allegations were made against the defendant. It detailed a time where C1 had lied about having a medical procedure to an intimate part of her body and waking up with no underwear on. The defence submitted this lie had substantial probative value in respect of C1’s credibility, an issue of substantial importance in the context of the case as a whole. 

The judge had held that the bad character evidence did not have substantial probative value in respect of C1’s creditworthiness and therefore did not meet the requirement of s.100 (1)(b).

The Court of Appeal had to consider whether the judge erred in his decision to not admit the bad character evidence of C1 on the issue of her credibility under s.100(1)(b) CJA 2003.

The appellant relied on the case of R v Brewster [2010] EWCA Crim 1194 and submitted that the test for admissibility was whether the evidence would have a “bearing upon” or “affect” the credibility of C1’s evidence (Brewster at [21] and [23]). The appellant submitted that the judge had not grappled with the principles in Brewster and erred in applying the test.

Held: The Court of Appeal set out whether the judge erred as a matter of legal principle and the reasonableness of the judge’s assessment.

The Court stated that C1’s creditworthiness was a matter in issue in the trial of substantial importance in the context of the case as a whole. 

Whether the judge erred as a matter of legal principle:

The Court rejected the criticism that the judge erred as a matter of legal principle.

A number of principles as established by R v Braithwaite [2010] EWCA Crim 1082 and R v Phillips [2011] EWCA Crim 2935 were referred to:

prove;

ii. This assessment is highly fact sensitive in each case;

iii. The probative value of that evidence falls to be assessed in the context of the case as a whole. This means that it may sometimes be appropriate for the trial judge to consider whether or not it adds significantly to other more probative evidence already admitted in the case which is directed to the same point;

iv. If the judge decides that the test in s.100(1)(b) is met, then he or she has no residual discretion to refuse to admit the evidence;

v. Accordingly, it is important that the threshold for admissibility under s.100(1) (b) is not understated. Its purpose is to ensure as far as possible that the probative strength of the evidence removes the risk of unfair prejudice.”

The Court set out that Brewster did not amend the statutory test for “substantial probative value”, instead it described the exercise the judge undertakes when they apply the test in s.100(1)(b). The Court stated it was wrong to suggest the words in Brewster of “bear upon” were expressing the substantial probative value test. Further, the Court said that the word “affecting” was simply used to restate the court’s rejection of the sentence preceding it. 

It was made clear that the judge had applied the correct approach described in Brewster by considering whether the material would be capable of assisting/providing any real assistance to the jury on credibility and by applying the test of substantial probative value in respect of C1s credibility.

Whether the judge’s assessment that the evidence did not have substantial probative value was reasonable:

The Court held that the judge’s assessment was not unreasonable, stating the following:

The Court of Appeal dismissed the appeal and found no merit to the challenge of the judge’s decision to exclude the non-defendant bad character. 

R v John Jordan [2024] EWCA Crim 229

Contempt in the face of the court – procedure to be followed by trial judge – protest.

Principle: Where a trial judge dealt with contempt of court himself, the correct procedure was followed, and the imposition of a 14-day custodial sentence suspended for 12 months was just and proportionate.

Background:  The appellant was playing music through a megaphone pointed at Inner London Crown Court during the trial of members of the Insulate Britain campaign group, who were charged with public nuisance. The music could be heard within the courtroom by jury members, the defendants, and the judge. The trial judge HHJ Reid ordered that the appellant be arrested and brought to the courtroom on a charge of contempt of court which he proceeded to deal with himself through a summary process.  

Held: What constitutes contempt in the face of court was defined, and it was clarified that the course of justice need not have actually been impeded or prejudiced.

• [24] “It certainly extends to conduct observed by the judge which is liable to have an immediate disruptive impact on the course of proceedings. Common examples are in-court protests or outbursts by participants or observers”

• [25] “It is well-established that it is not necessary to prove that the course of justice was in fact impeded or prejudiced. It is enough to show that what the defendant did created a risk that this would occur.”

A summary process is applicable in contempt proceedings where a swift response is necessary to ensure the administration of justice. The correct procedure to be followed is found at Part 48 of the Criminal Procedure Rules 2020. A defendant must be provided with access to legal advice ahead of the proceedings.

• [27] “The purpose of the jurisdiction to punish for contempt of this kind is the same as that which supports other aspects of the contempt jurisdiction: “to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”: Morris v Crown Office at 129 (Salmon LJ). […] That may call for a swift and decisive response to events which threaten the due administration of justice. For that purpose the court may exercise the contempt jurisdiction “summarily”.”

It was held that the appellants Article 10 rights were not impeded as he was able to express support of the defendants in the trial in any other manner provided it did not constitute a contempt of court.

•  [74] “Further, any such assessment would inevitably have led to the conclusion that the proceedings, findings and penalty in this case were necessary in a democratic society in pursuit of the legitimate aims we have identified and proportionate to the importance of those aims. The impact of the appellant’s conduct was serious. The action taken was strictly relevant. Its sole and exclusive target was the communication of noise from outside the courtroom to those inside it whilst proceedings were in progress. It is that alone that was interfered with or restricted. The process did not impinge on the appellant’s right to express in any other way, or at any other time and place, his support for the defendants or his views or feelings about the way the case against them was being dealt with by the court. Before embarking on a contempt hearing the judge explored whether the matter could be resolved by the lesser measure of an apology but the appellant showed defiance. The penalty imposed was limited, logically connected to the relevant aims, and it was legitimate for the judge to conclude that nothing less would achieve those aims.”

R v Ali [2024] EWCA Crim 1218 

Class A drugs – supply of fake drugs – leave to appeal sentence of 12 months imprisonment – sentencing guidelines.

Principle: Appeal against a sentence of 12 months’ imprisonment after pleading guilty to being concerned in the supply of Class A drugs. Guidance was provided on the correct approach on sentencing when the drugs being offered were fake. The starting point is by reference to the applicable Sentencing Guideline (for real drugs), it should then be adjusted to take into account aggravating and mitigating factors, if appropriate a further discount should be made to take into account the drugs were fake, and any discount as credit for a guilty plea should be applied.

Background: The applicant was arrested after being seen offering customers drugs in a nightclub. Six bags of white powder were found in the applicant’s jacket and seized. Forensic analysis confirmed that the white powder was paracetamol. The applicant admitted to selling the paracetamol as cocaine. 

The sentencing judge recognised that the supply of fake drugs is less serious than offering to supply real drugs. He had indicated (echoing the principles set out in the similar case of R v Tugwell [2001] EWCA Crim 719) that the sentence to be passed would be lower than if the drugs were real, but it was a serious offence nevertheless because the applicant’s activities “worked to create a market for drugs”. He imposed an immediate sentence of 12 months’ imprisonment, having referred to a psychiatric report, PSR, and applying a one-third discount in guilty plea credit.

The Court of Appeal considered the relevance of the Sentencing Guidelines and the correct approach where drugs are found to be fake. The applicant submitted that the sentencing judge had erred in their approach in deciding that there was no realistic prospect of rehabilitation and that appropriate punishment could only be achieved by immediate punishment.

Held: The Court set out the following:

The Court referenced a number of factors relevant to reduction including whether the product being offered for sale was dangerous and the individual circumstances of the person to whom the product is being offered.The Court set out that the correct approach when sentencing cases involving the sale of fake drugs is:

 2. Adjust the starting point to take into account aggravating and mitigating factors in the usual way; 

3. If appropriate, apply a further discount to take into account the fact that the drugs were fake, the amount of the discount to be decided according to the particular facts of the case, including, for example, the nature of the product in fact being offered for sale; and 

4. Apply any discount as credit for the offender’s guilty plea.”

The Court decided that the sentence imposed of 12 months’ immediate imprisonment was justly imposed and there was no reason to interfere with their decision. 

Cush, Williams, Willis and Temesgen [2024] EWCA Crim 1382

Serious public disorder – application for leave to appeal against sentence – sentencing guidelines.

Principle: The Court of Appeal held that the correct approach to sentence was taken by the judges at first instance and emphasised the need for the ‘bigger picture’ of public disorder to be considered alongside the individual actions of the defendants. In respect of Willis, serious personal mitigation led to the Court of Appeal quashing immediate custody in favour of a suspended sentence and Temesgen’s sentence was substituted for the same sentence but in a Youth Offenders Institute. 

Background:  Four individuals, all of whom entered guilty pleas, participated in incidents of serious public disorder in late July and August 2024 following a tragic stabbing incident in Southport. The individual actions of the defendants varied from assaulting attending police officers to causing criminal damage but in all cases the wider context of the public disorder was considered to be an additional aggravating factor. 

Held: Sentencing principles in these offences were right to include whether the defendant’s actions involved a threat to public safety and the need for a deterrence:  

In respect of the defendant Willis, exceptional personal mitigation led to the Court of Appeal to substitute immediate detention for a suspended sentence of 14 months detention in a Youth Offender Institution:

R. v BJK [2024] EWCA Crim 667

Admissibility of evidence – previous sexual history – cross-examination – transposition.

Principle: The Court of Appeal gave guidance on applications under s.41 YJCEA 1999 as to when cross-examination of a complainant as to complaints of sexual abuse made against other men would be permitted. In the present case, the court agreed with the trial judge that any suggestion that the complainant had ‘transposed’ her abuse by others to the defendant was purely ‘speculative’ and permission was correctly denied.

Background: The appellant (A) was convicted of 11 serious sexual offences against two girls, eight of which were committed against B (under the age of 16) and three against C (under the age of 13).

The appeal centred on accusations of sexual abuse made by B against five other men who had not been prosecuted. A’s Defence Statement stated that B had, or might have, wrongly transposed the abuse suffered at the hands of the other men to him. On that basis A applied to be allowed to cross-examine B on those accusations.

A’s primary submission was that s.41 YJCEA 1999 was not engaged, or alternatively that the material related to a relevant issue in the case and the issue was not an issue of consent. The judge refused the application and A appealed against conviction.

Held: The Court of Appeal helpfully summarised the circumstances in which s.41 would apply where previous complaints of sexual abuse were raised by a complainant against the defendant or others.

Where an accused wishes to question a complainant about ‘false’ previous complaints, the s.41 regime is not engaged as the evidence is not “about” previous sexual behaviour. The defence must have a proper evidential basis for asserting falsity and the court reasserted that it is best practice to seek a ruling from the trial judge that such questions are not excluded by s.41.

Where falsity of the complaint(s) is not alleged, or there is no sufficient evidential basis for doing so, the questions are “about” previous sexual behaviour and s.41 does apply.

In the present case, the court drew attention to several distinct features of the previous complaints which suggested the complainant had not mistakenly transposed the abuse by others to the accused. The abuse alleged to be carried out by A was “more serious and protracted” and there was “no self-evident” reason why she might confuse who abused her.

The trial judge was right to disallow such cross-examination on the basis that the evidence of transposition was minimal or non-existent. Further, since the questioning went primarily to B’s credibility, the judge rightly refused leave under s.41(4) of the 1999 Act.

R. v Jaycock (William Peter) [2024] EWCA Crim 954                  

Production of indecent images – sentence.

Principle: Where an offender has superimposed the faces of children onto pornographic images of adult women, the offence is to be treated for sentencing purposes as a ‘production’ offence rather than that of mere ‘possession’ – attracting a significantly longer sentence.

Background: The appellant had pleaded guilty to three offences of making indecent pseudo-photographs of children (under s.1 Protection of Children Act 1978) by superimposing the faces of three children onto lawfully held pornographic images of adult women downloaded from the internet.

Of the three children, two were teenage girls (‘C1’ and ‘C2’) known to the appellant and aged approximately 13 and between 15 to 17 respectively when photographed. Eight category A and two category B images were generated using the faces of C1 and C2.

The judge in his sentencing remarks followed the decision in R v Bateman [2020] EWCA Crim 1333.

As there were category A images the sentencing judge found that the appropriate categorisation for the purposes of sentence was that at Category A/ Production, arriving at three years and four months for the indecent image offences (after the appellant’s full third credit).

The appellant appealed the sentence as manifestly excessive for the primary reason that:

1. The sentencing judge put the case into the production category rather than that of possession.

Held: The Court of Appeal were satisfied that superimposing a picture of a child’s face onto a pornographic picture of an adult body amounts to the creation of a new indecent image of a child (reaffirming Bateman).

Reasoning that the appellant had created an indecent image, the court held:

“It was he who started with two images, one a lawful and decent photograph of a child, the other, a lawful (although pornographic) photograph of an adult, and ended with three, the third being an unlawful, indecent pseudo-photograph of a child.”

This was more serious that possession as it involved the invasion of the “rights to private lives [of the child and the adult in the initial photograph] and created a risk that the indecent images may be circulated on the internet.”.

The appeal consequently failed and was dismissed.