Introduction by Ben Close, Editor.
Welcome to the spring edition of the criminal group newsletter.
In this edition of the criminal team’s newsletter, we have several articles from members at all levels of seniority. First, Lee Marklew QC writes about arguing exceptional circumstances in relation to the minimum term for offences contrary to the Firearms Act 1968. As well as providing helpful guidance, it encompasses his own experience in a finely balanced case.
Secondly, Jonathan Barker talks about the recent case of R v Bevan [2020] EWCA Crim 1345, and its significance in confiscation proceedings where a third party claims an interest. This is an area of growing importance given the increasing prominence of s 10A of the Proceeds of Crime Act 2002, often requiring Crown Courts (and advocates!) to grapple with aspects of trust law.
Thirdly, Paul Dhami uses his recent experience to explain the defence within s 45 of the Modern Slavery Act 2015 which amongst others, will be of interest to anybody who has had to navigate the national referral mechanism.
Fourthly, Olivia Beesley looks at lessons that can be learnt from R v Patrick Albert Jessemey [2021] EWCA Crim 175; a recent case in which numerous procedural errors were made in a case involving sexual offences. Finally, following his appointment as Chancellor of the Diocese of Coventry, Glyn Samuel explains more about that historic role.
We hope you find these articles informative. Please get in touch if there are any topics you would like to see covered in the next issue.
In the meantime, chambers remains fully operational, with reduced staffing levels and socially distanced measures to ensure those who need to visit can do so safely. Our clerking team are all available with agile working, as follows:
Phil Jones – Senior Clerk pjones@st-philips.com 0121 246 2163/ 07809 583912
James Withers – First Junior Clerk – jwithers@st-philips.com – 0121 246 2175/ 07756207103
Su Turner-Gilbert – sgilbert@st-philips.com – 0121 246 2164
Dan Giles – dgiles@st-philips.com – 0121 246 2052
Tom Kelly – tkelly@st-philips.com – 0121 246 2143
Stay safe.
Sentencing Offenders Under Section 51A Firearms Act 1968 ‘The Minimum Sentence Provisions’ – By Lee Marklew QC
1. Under section 51A Firearms Act 1968 an individual over the age of 18 who possesses a prohibited weapon contrary to s.5(1)(aba), or who commits any other specified offence identified within section 51A, must receive a sentence of at least 5 years’ imprisonment unless the court finds that exceptional circumstances exist. However, before considering whether exceptional circumstances have arguably arisen practitioners must now examine the relevant sentencing guideline. 8 guidelines concerning firearms came into force on 1st January 2021.
2. In short practitioners should firstly identify, by reference to the guideline, whether or not a defendant will inevitably receive a sentence of more than 5 years in any event. If so any possible argument relating to exceptional circumstances is likely to fall away. In this regard the new guidelines consider the type of weapon, the degree of harm that it could have caused and the defendant’s culpability in having it with them in the given circumstances.
3. In considering any basis of plea practitioners are also reminded that whilst being threatened by criminals can afford an offender effective mitigation it cannot, for reasons set out below, lead to a finding of exceptional circumstances
4. As far as exceptional circumstances are concerned those dealing with sentences in this area are reminded that the defendant’s own circumstances are capable of amounting to exceptional circumstances. In this regard in the case of R v Rehman (2005) EWCA Crim 2056 para.11 the Court of Appeal stated that any sentencing tribunal should take a holistic approach to the question of whether ‘exceptional circumstances’ are present. 6 years later in R v Shaw (2011) EWCA Crim 167 it notably found that exceptional circumstances did exist where medical evidence showed that there was an increased likelihood of further cardiac arrest whilst the appellant was in custody. However, in that case the appellant was 76, had bought a prohibited weapon at a car boot sale 10 years earlier and did not possess the weapon with any criminal intention. As such the court found (see para.7 of the judgement) that his medical problems ‘tipped the balance in his favour when taken in combination with the other identifiable features of his case.’ Within that context 8 years later the court then decided the appeal of R v Nancarrow (2019) EWCA Crim 470 and further stated (at para. 20 of the judgement) that the Recorder in that case was mistaken in thinking that a medical report was insufficient on its own to amount to exceptional circumstances albeit that the court did not find such circumstances were present as Mr Nancarrow’s difficulties were being well managed in prison.
5. Practitioners also need to be aware of the detail of the judgements in A-G’s reference (No.37 of 2013 Culpeper) EWCA Crim 1466 and Greenfield (2016) EWCA Crim 765 when dealing with defendants that assert that they have only offended because of pressure or threats falling short of duress. These judgements make for depressing reading for those that appear before the courts making this claim. In both cases the appellants stated that they had scant choice but to do as they were told. Culpeper stated that he had been made to store the weapon in order to satisfy a drug debt and that he and his partner had been threatened with serious violence or death if they didn’t do it. Greenfield, a longstanding drug user, said that she had also been threatened in not dissimilar circumstances. The judge at first instance in Culpeper accepted what he said and also took account of a longstanding diagnosis of depression in finding exceptional circumstances. However, the Court of Appeal took a different view stating that it ‘entirely agreed’ with the the Attorney-General whose submissions are summarised at paragraph 11 of the judgement. In short the Attorney argued that the use by criminals of individuals apparently unconnected so as to store firearms is a common feature to this offending and the courts should assume that citizens, even if subjected to threats, would not store firearms but turn to the authorities for protection. In addition the Attorney further submitted that ‘to conclude that pressure brought to bear amounts to such (exceptional circumstances), even in combination with other factors, would in large measure blunt the effect of section 51A of the Firearms Act, contrary to the scheme of deterrent sentencing for which Parliament has made clear provision.’ 3 years later, at paragraph 17 of the judgement in Greenfield, the court underscored its view that all earlier judgements on appeal must now be read in the context of Culpeper and reiterated its previous view of the Attorney’s arguments.
6. Earlier this month I represented D, a 29 year old family man, who fell to be sentenced under the new sentencing guideline for possession of a prohibited weapon and possession of ammunition. He indicated his guilty pleas at the Magistrates’ Court and entered them at the PTPH. The weapon was seized from the loft in his house at a time when D was present in the property with his partner and two children, aged three and two. It was a .22″ calibre rifle typically used on farms to control pests such as rabbits. The barrel and stock had been shortened and the condition of the weapon meant that each round of ammunition found with it had to be manually loaded in order for it to be shot.
7. In interview the defendant denied knowledge of the weapon. However, for the purpose of sentence he indicated in a basis of plea that he was storing the weapon for a man from whom he had previously bought cannabis. He further stated that this individual had threatened both he and his family with serious violence. The prosecution’s stance in relation to the basis was that the court should hear from the defendant, if necessary, in order to form a view about his veracity.
8. In considering the guideline it was agreed between the parties that the rifle was a type 2 weapon (single shot rifle) and that D’s culpability was high as D was reckless as to whether the weapon would be used for a criminal purpose. In addition the case fell into category 2 harm (some but not high risk of death or serious physical/ psychological harm). Table 1 applied as the case attracted the minimum term and the starting point for sentence was therefore 7 years with a range of 6-8 years. After full credit for plea I accordingly submitted that the sentence was likely to be 5 years regardless of whether any issue in relation to the basis of plea was determined in his favour. That submission was accepted by the court which then turned to the question of whether all or some of the available mitigation was capable of constituting exceptional circumstances.
9. Before sentence a psychological report had been obtained. The psychologist observed that 97% of D’s peers would have performed better in the verbal comprehension test. D was also described as having an extremely low range of functioning in terms of attention, concentration and short term memory which accorded with a previous diagnosis of ADHD. Further, the psychologist concluded that D met the DSM V criteria for major depressive disorder and exhibited symptoms of severe anxiety. She also concluded that D was likely suffering from P.T.S.D. emanating from historic sexual abuse, bullying and being physically attacked. In summary she concluded that his problems ‘made him extremely vulnerable to being manipulated by a more sophisticated criminal’ and that ‘it could be seen in his medical notes that his mental health had deteriorated significantly in the months leading up to the index offences.’ In addition she further stated that ‘in prison he would be extremely vulnerable.’ Her conclusion was that ‘his mental health would significantly deteriorate and he would be at high risk of self harm if he were to receive a custodial sentence.’
10. The judge found that exceptional circumstances did not exist relying upon the dictum in Culpeper and D received the 5 year minimum term. The psychological report was ordered to follow the defendant to prison ‘in order that his difficulties could be managed’ and as such the argument that his medical difficulties in themselves constituted exceptional circumstances was rejected. The sentencing judge distinguished D’s case from the facts of Shaw who had a life threatening condition. In that regard the decision appears difficult if not impossible to criticise.
11. The afore stated analysis of the case law shows that are no obvious answers to the challenges in representing vulnerable offenders such as D. Indeed Shaw’s case also serves as a stark reminder that even where exceptional circumstances exist a sentence of some length will still follow. His reduced sentence upon appeal was 3 years’ imprisonment. However, in considering the relevant issues the starting point is now the relevant guideline and in my view paragraph 19 of Nancarrow provides an excellent summary of the current principles that relate how an exceptional circumstances argument should be assessed. In Nancarrow’s case the court also stressed; as it has done in many cases before, that all cases are fact specific. As such those representing vulnerable defendants who have fallen prey to hardened criminals must continue to try to formulate imaginative submissions. Those submissions, where available, will often but not exclusively focus upon the likely effect of prison upon their client’s health. Under the current sentencing regime the few that with a realistic chance of success are likely to be those of very advanced years or those who can be said to be plainly unfit to serve the minimum term as per the judgement in Rehman at paragraph 15.
R v Bevan [2020] EWCA Crim 1345 – By Jonathan Barker
This case is a must-read for any practitioner involved in confiscation proceedings in which an interested party is claiming a beneficial interest in ‘realisable’ assets. Jeffery Bevan was convicted of stealing over £1.5 million from the Government of Bermuda and £50,000 from the estate of his mother. Proceeds from his crimes were used, inter alia, to pay-off the matrimonial home, buy his wife a car, and form the basis of deposits into bank accounts held either jointly with or solely in the name of his wife. His wife was not involved in his criminality but had, in the ordinary sense, benefited from it. In confiscation proceedings she asserted either a joint or sole interest in some of the assets in dispute on the basis it had been her and her husband’s common intention that she have a beneficial interest. During confiscation proceedings in the Crown Court, the Crown did not rely upon the tainted gift provisions but instead contended it was neither legally or morally appropriate for Mr Bevan’s wife to receive the benefit of money stolen by her husband. The judge found that Mr Bevan and his wife were each beneficially entitled to a half-share in the matrimonial home and the car was acquired and registered in his wife’s sole name. However, he accepted the Crown’s argument and held that the wife’s half share in the matrimonial home be reduced to account for the fact criminal property had been used to pay-off part of the mortgage; he also extinguished the wife’s interest in the car and bank accounts on the basis they had been funded by her husband’s crimes. The wife appealed the decision to the Court of Appeal who, in allowing the appeal, held on application of ordinary principles of property and trust law the wife was entitled to a one-half share of the house and joint bank accounts and to sole ownership of the car and money in a bank account in her sole name. The Court of Appeal identified that the Crown could “identify no statutory or other provision (where the tainted gift provisions are not invoked) whereby legal and equitable rights could be adjusted for these confiscation purposes under Part 2 of the 2002 Act so as to cause such interests to be adjusted away from the legal and beneficial ownership and the parties’ mutual agreement”, making the point, “Indeed, it seems rather remarkable that for this particular purpose the criminal husband’s share could, on the prosecution argument, positively be increased as a matter of beneficial interest by the amount of his own criminality but the innocent wife’s share be reduced pro tanto” (see para 36).
In summary, this case provides useful ammunition for interested parties who seek to claim interests in assets subject to confiscation proceedings. It also provides a salutary lesson for those involved in the prosecution of such cases that arguments based on “fairness” ought to be avoided with instead consideration being given to the tainted gift provisions and/or civil recovery.
Modern Slavery Act section 45 Defence and Children – By Paul Dhami
The Reality
We are all too familiar with the Police raiding cannabis factories, and discovering foreign nationals living and working amongst the vegetation. The common denominator is illegal entry into the UK and then forced into working off their ‘debt’ to those who promised a new life.
My recent involvement in a county lines drugs conspiracy highlighted that the statutory defence can and does apply to many UK nationals, some of whom are children under the age of 18. In this instance, the 17-year-old female defendant was arrested together with two older males, one of whom was her ‘boyfriend.’ It was only after she pleaded guilty and her local YOT began preparing a PSR that the defendant was identified as a victim of exploitation. A referral via the National Referral Mechanism [NRM] and a decision by the Single Competent Authority [SCA] concluded that the defendant was a victim of child criminal exploitation. A successful application to vacate her guilty pleas and review by the CPS led to the prosecution offering no evidence, seven months after her PTP hearing.
Notwithstanding the SCA being required to make a ‘reasonable grounds’ decision within five working days and then a further period of reflection, in order to gather evidence and review the case, it can be a long-drawn-out process.
Many designated organisations and public bodies, for example, the Police and Local Authorities are known as first responders, can refer individuals to the NRM. Child victims do not have to consent to the referral and so acting in their best interest is the priority, even if your instructions are silent on the point. The SCA decision making process will involve contact with any agencies involved with the child, as well as an interview with the child and then preparing a conclusive grounds decision. This decision is made on the ‘balance of probabilities’ and only applies to the child at that ‘moment of time.’ Cases involving criminal proceedings should be treated by the SCA as a matter of urgency.
The Law
Section 45 provides a statutory defence for victims of slavery and relevant exploitation who, in the case of a child [under 18] committed the offence as a consequence of being, or having been, a victim of slavery or relevant exploitation.
The test is subjective and the evidential burden rests with the defendant, the prosecution is charged with discharging the legal burden to the usual criminal standard.
Even when the defence are armed with a positive conclusive grounds decision the prosecution may still decide to proceed and at trial the SCA’s decision should be adduced, to advance the statutory defence.
Case Law
The Court of Appeal in R v BTT [2021] EWCA Crim 4 had no hesitation in admitting as fresh evidence the decisions of the Home Office, as the competent authority, and the Upper Tribunal Judge and was referred to the Divisional Court’s decision in DPP v M [2020] EWHC 3422 [Admin]. The latter found the decision of the competent authority would be admissible at trial and that the district judge had been right to conclude that the statutory defence under section 45 was made out in respect of a 15-year-old defendant. The weight attached to the SCA decision would vary on a case-by-case basis and the prosecution should make an assessment, same as it would do with any other evidence.
The prosecution determination as to whether the defendant had satisfied the evidential test and they could disprove the statutory defence would be achieved by assessing all of the available material.
Normal practice would suggest including the SCA decision within the Agreed Facts at trial.
The Caveat
The section 45 statutory defence ‘excludes serious sexual and violent offences preventing the perpetrators of these types of serious offences from evading justice whilst ensuring genuine victims of trafficking are protected’, as affirmed by the Court of Appeal in R v A [2020] EWCA Crim 408.
Procedural Pitfalls: R v Patrick Albert Jessemey – A Cautionary Case Study – By Olivia Beesley
Patrick Albert Jessemey was sentenced to 3 years immediate custodial sentence in the Crown Court. Upon a successful appeal, this was substituted with just 4 months custody. What went so wrong?
Mr. Jessemey originally faced a single charge of attempting to engage in sexual communication with a child, contrary to s.15A SOA 2003 via postal requisition in June 2020. This is an either way offence with a maximum sentence of 2 years imprisonment. He engaged in an online chatroom with a 12-year-old girl, that was actually an adult police officer. He asked to kiss and touch her, incited her to masturbate and then engage in telephone sex.
On the day of his first appearance at Oxford Magistrates Court, the prosecution preferred a second charge, causing or inciting a child under 13 to engage in sexual activity, contrary to s.8 SOA 2003. This is also an either way offence and holds a maximum sentence of 14 years imprisonment for the non-penetrative offence.
The first procedural issue was found in the offence being recorded under s.8 SOA 2003, rather than s.1 Criminal Attempts Act 1981, as of course, there was no real child to incite. However, anyone charged with a substantive offence can be convicted in the alternative of any attempt to commit the offence. This first error caused no lasting consequence.
When faced with the two charges, Mr. Jessemey indicated a guilty plea to the s.8 offence that was brought on the day, and gave no indication of plea to the original s.15A he received via postal requisition. The Magistrates determined that the original s.15A charge should be sent to the Crown Court for trial, and that the s.8 was committed for sentence.
This is where the second procedural issue was found. The Magistrates sent the committal pursuant to s.4 Powers of Criminal Courts (Sentencing) Act 2000. S.4(2) states that a person committed under the section can be dealt with as if they had been convicted by the Crown Court. The Magistrates can also say that it had a power to commit the person under s.3(2) of the 2000 Act. If the court fails to do this, and then the person is not convicted of the offences that were sent up for trial, then the Crown Court’s sentencing powers are restricted to those of the Magistrates Court; 6 months.
In September 2020, the Plea and Trial Preparation Hearing took place. The prosecution uploaded two indictments onto the Digital Case System. The first contained the single count intended for trial and was uploaded to the ‘Indictment’ section of the DCS. The second indictment contained the two offences; s.15A and s.8. This indictment was uploaded to the ‘Applications’ section of the DCS. This created a third procedural issue. The Court of Appeal found that an indictment could only be preferred if it was uploaded in the correct section, the ‘Indictment’ section. Nowhere in the Criminal Procedure Rules (particularly in Part 10, which deals with preferring indictments), or in the Criminal Practice Direction does it say that the ‘Indictment’ section alone is the correct procedure. However, the Court of Appeal ruled that in order for an indictment to be preferred, it must be uploaded into the ‘Indictment’ section, otherwise it would be “a recipe for chaos”. Therefore, the two count indictment in the ‘Application’ section was ruled to be a mere draft. Only the one count indictment had been preferred.
In any event, it was the single count indictment that was intended to be proceeded with. The two count indictment was only uploaded due to the confusion caused in the section by which the second offence was committed. The prosecution informed the judge that the guilty plea to causing or inciting a child under 13 to engage in sexual activity, contrary to s.8 SOA 2003 fully reflected the criminality. This was deemed a sensible approach.
Now to deal with the single count indictment which had been preferred. Here lies the fourth procedural issue. The prosecution applied to the judge to discontinue that indictment under s.23A of the Prosecution of Offences Act 1985. This, in fact, was not a possible application at all. Under s.23A, it is the DPP that has the power to give notice of discontinuance of proceedings any time before the indictment is preferred. The judge, correctly, made no order and the single count indictment remained in existence, as it had already been preferred. Of course, there was no conviction on that indictment and it was forgotten.
The matter returned for sentence in October 2020 in front of a different judge. Mr. Jessemey was sentenced with the full sentencing powers of the Crown Court. Unknown to him, the offence committed for sentence was limited to the sentencing powers of the Magistrates Court due to the Magistrates not stating that they had a power to commit the person under s.3(2) of the 2000 Act (the second procedural error, above). The sentencing judge was limited to 6 months imprisonment. He had no power to sentence a day above this maximum.
This series of unfortunate procedural errors resulted in Mr. Jessemey’s successful appeal. The 3 year imprisonment was quashed, and a 4 month imprisonment was substituted. The notification requirements were reduced to 7 years, as was the Sexual Harm Prevention Order, which was originally ordered indefinite in duration.
The only matter left was the forgotten single count indictment. A single judge of the Court of Appeal sat as a Crown Court judge and disposed of it.
These procedural errors have been compressed into one case, and now we may all learn from this cautionary tale.
R v Patrick Albert Jessemey [2021] EWCA Crim 175.
Glyn Samuel appointed Chancellor of Coventry
In January you may have noticed an announcement that Glyn Samuel had been appointed Chancellor of the Diocese of Coventry – But what exactly does that mean? Each Diocese in the Church of England (and in the Church in Wales) has a Chancellor, whose appointment follows consultation with the Dean of Arches (the most senior Ecclesiastical Judge in the jurisdiction) and the Lord Chancellor. Chancellors are the judges of the Consistory Court, deciding upon matters affecting real property and valuable items owned by the Church, upon matters affecting consecrated ground, including municipal cemeteries, and in effect upon planning applications affecting Church land. For example, an exhumation from consecrated ground requires permission from the appropriate Chancellor. The first Chancellors were appointed by William the Conqueror, so it is one of the oldest surviving judicial offices in the jurisdiction. Chancellors also hold the offices of Vicar-General for the Diocese in question (nowadays confined really to issuing Marriage licences and having a role in the defrocking of Bishops) and as Official Principal, the main legal adviser to a Diocesan Bishop. A Chancellor is addressed in Court as Worshipful Sir, or Chancellor, and is addressed in correspondence as ‘The Worshipful’. Decisions of a Chancellor are enforceable in the High Court and judgments are afforded a neutral citation, similar to High Court or Court of Appeal judgments. In Court Chancellors wear the former dress of the Chancery Court, so a silk gown with Court coat, but on formal ceremonial days a full-bottomed wig, lace jabot, silk stockings and silver-buckled shoes must also be worn. It is still reasonably unusual for junior counsel to be appointed as a Chancellor – the majority of Chancellors are either senior Circuit or High Court Judges or have been appointed Queen’s Counsel.
In case you are wondering, a Chancellor sits as and when required, so it is a part-time appointment. A Chancellor can also appoint a single Deputy Chancellor to cover cases that the Chancellor cannot hear or when the Chancellor is indisposed. Glyn was Deputy Chancellor of Coventry from 2010 until his appointment as Chancellor, replacing HHJ Stephen Eyre QC. He has also been Deputy Chancellor of Leeds since 2016.
