Issue 1, February 16, 2012 Archbold - Archbold e … · and short on analysis. In such cases, the...

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ArchboldReview

Issue 1, February 16, 2012

Cases in briefAdmissions—European Convention on Human Rights Art.6—legal advice before waiver—whether required MCGOWAN (PROCURATOR FISCAL, EDINBURGH) V B [2011] UKSC 54; November 23, 2011European Convention on Human Rights Art.6, and the Strasbourg jurisprudence on it, did not require that a per-son should have legal advice before he or she could effec-tively waive the right of access to a lawyer. The require-ments were that, in order to be effective as a waiver of a Convention right, the acts from which the waiver was to be inferred must be voluntary, informed and unequivocal, and must be attended by the minimum safeguards commensu-rate to the importance of the right. None of the Strasbourg cases indicated that an accused who acts of his or her own free will in waiving the right to legal assistance must always have access to legal advice before he or she could be held validly to have waived that right, and there was no gener-ally internationally recognised human rights standard on the issue of waiver that would support such a conclusion. The Court suggested that it would improve practice in Scot-land if (a) the effect of Police and Criminal Evidence Act 1984 Code C:6.5 were to be followed—a suspect declining a solicitor should be told that a telephone consultation was possible, and that the suspect’s reason for declining advice should be recorded; and (b) the suspect was informed of the arrangements that could be made if he or she was un-able to name a solicitor, or was concerned about the cost of legal advice (Lord Kerr dissenting) (also see Jude v HM Ad‑vocate and conjoined cases [2011] UKSC 55, decided on the same day, to similar effect in relation to waiver; and decid-ing procedural points relating to appeals following Cadder v HM Advocate [2010] UKSC 43).

Bias—application to change plea of guilty—conflict of evi‑dence between applicant and former counsel—no apparent bias—practice of bringing in outside judge for such applica‑tions commendedOLDFIELD [2011] EWCA Crim 2910; November 22, 2011There was no apparent bias where a judge refused an ap-plication to change a plea of guilty, made on the basis that counsel, based in the same town as the judge’s home court centre, had given faulty advice. Counsel whose advice was

questioned had not previously appeared in a trial before the judge, had only appeared before him on seven other mat-ters, and had had a small number of inconsequential con-versations with the judge when he was at the bar. The fair minded and informed observer (Porter v Magill [2002] 2 A.C. 357; Gillies v Secretary of State for Work and Pensions [2006] 1 W.L.R. 781; Belize Bank Ltd v Att‑Gen Belize [2011] UKPC 36 and Prince Jefri v State of Brunei [2007] UKPC 8) would not suspect the judge of bias. There was no personal friendship between the judge and counsel. Their relation-ship was a professional one, supplemented by occasional brief meetings. Any competent judge would be well able to put those matters out of his or her mind and fairly evaluate the evidence given at the application by counsel, the appel-lant, and other witnesses. The Court added that at many court centres a safer practice was adopted for dealing with such applications. If an application was likely to involve a conflict of evidence between the defendant and his or her former counsel, a judge from elsewhere, who had no per-sonal knowledge of counsel involved, heard the application. The Court commended that practice, and it would have been better it had been adopted in the present case. The outcome would have been the same, but there could have been no appeal.

Disclosure—abuse of process—whether stay justifiedMO AND OTHERS [2011] EWCA Crim 2854; December 8, 2011The judge had been wrong to stay proceedings as an abuse of process as a result of failures of disclosure in a retrial of

CONTENTS

Cases in brief ........................................................1

Sentencing cases ..................................................3

Feature ..................................................................5

Comment ...............................................................8

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a major, multi-handed drug importation case, and the pros-ecution appeal was accordingly allowed. While the Court would be cautious before interfering with a terminating ruling, it was necessary in this case. The judge made un-justified criticisms of the prosecution; and her inference of wholesale failure was not justified by the relatively few inci-dents described. Her rulings were long on generalisations and short on analysis. In such cases, the disclosure duty of the prosecution could be onerous. It was for the judge to ensure that requests for disclosure were focused and not disproportionate. Orders, such as those made by the judge here, for the entirety of case papers in other cases to be disclosed, when the point to be made from them was relatively circumscribed, were inappropriate. Deficiencies in disclosure may be censured, but it did not follow that the trial should not continue. In the absence of an allegation of prosecution bad faith, the judge should not have made her ruling unless a fair trial was not possible. Late disclosure was not the same as non-disclosure. Where it took place during a trial, the question would be whether it could be coped with during the trial, with or without an adjournment. There was nothing to indicate that the late disclosure could not have been accommodated during the trial. The case called for active case management, and where grounds for further disclosure were established, focused requests and focused orders for disclosure.

Disclosure—material compelled in restraint proceedings—disclosability to co‑accused; current practice—desirability of judicial testingRANDHAWA [2012] EWCA Crim 3; January 18, 2012(1) R and his co-accused S were convicted of involvement in a major carousel fraud. Before trial, S had disclosed cer-tain material in separate restraint proceedings, subject to an order requiring the compelled material to only be used in connection with the restraint proceedings and preventing the disclosure of the information to R. An amendment to the order to allow disclosure to R made in the Crown Court was quashed by the Court of Appeal (JS [2009] EWCA Crim 2972, which had been subject to an order preventing disclo-sure to the Crown or S, but not the trial judge). As those responsible for prosecuting had not seen the compelled ma-terial, the judge examined it and concluded that it would not undermine the Crown case nor assist R’s case. Following the refusal of S’s application for leave to appeal, the order was amended to allow the prosecution to see the material and counsel came to the same conclusion in relation to disclosure. R argued that the Court should not accept that it was not disclosable, relying on passages in the restraint order amendment appeal (where the Court had held that disclosure to R could have constituted self-incrimination by S, because R might wish to show that it was S and not him who committed the fraud). The conviction was safe. Crown counsel explained his conclusions on disclosability: at trial there was no cut-throat defence. Whilst there were some minor differences or contradictions between their cases, both argued in a similar way that they were not involved in the undoubted fraud run through the company of which they were directors. R argued that the material might have provided some ammunition for cross examination. But that was not the test. (2) The Court added a postscript. R’s counsel told the Court

that the current restraint order template in use contained a paragraph permitting compelled material to be disclosed to the prosecution for the purposes of discharging the pros-ecutor’s disclosure obligations, and the Court considered the guidance in Chapter 21 of the CPS Disclosure Manual. The Court, without expressing a view, considered that it would be desirable for the Court to have an opportunity to consider whether permitting disclosure of compelled mate-rial to the prosecution would breach the privilege against self-incrimination.

Having a bladed article—“good reason”—relevance of state of mind—proper approach generallyCLANCY [2012] EWCA Crim 8; January 18, 2012C was found with knives in her bag shortly after she com-plained of being sexually assaulted by a taxi driver. Her defence at her trial for having a bladed article (Criminal Justice Act 1988 s.139) was that she thought she would be attacked by the taxi driver and feared for her personal safety, and thus had good reason for carrying the knives. The judge misdirected the jury when, in answer to a ques-tion from them (should they judge whether she had a good reason or not on the basis of whether they thought she was actually likely to be attacked or whether, in a confused state, she might have believed she would be attacked, even if that was logically unlikely?), he told the jury that they must con-sider the question wholly objectively and not take into ac-count her state of mind. Reviewing the authorities (Evans v Hughes (1972) 56 Cr.App.R. 813; DPP v Gregson (1992) 96 Cr.App.R. 240; Manning [1998] Crim.L.R. 198; Jolie [2004] 1 Cr.App.R. 3; McAuley [2010] 1 Cr.App.R. 11; Bown [2004] 1 Cr.App.R. 151; and N v DPP [2011] EWHC 1807 (Ad-min)), the Court concluded that it was clear that a fear of attack could constitute a good reason within the meaning of s.139(4) of the 1988 Act and it therefore followed that the defendant’s state of mind was not wholly irrelevant. The au-thorities, in particular Manning and Jolie, also established that the expression “good reason” was not one that called for judicial explanation, being an ordinary phrase in com-mon use. It would be wrong for judges to hedge it around with rules of law designed to limit its scope or meaning. In some cases the court might be justified in ruling that certain facts were incapable of constituting a good reason, but it should be slow to do so—that would only be justified if a finding that a good reason existed would be perverse. Normally judges should simply direct the jury that, hav-ing found the facts, including, if appropriate, the facts as to the accused’s state of mind, they should decide whether they amount to a good reason without elaboration (Gregson, whether correctly decided or not, was to be understood as establishing only that mere forgetfulness was incapable in law of amounting to good reason). The distinction between what did amount to a good reason (a matter for the jury) and what was capable of amounting to a good reason (for the judge) was explained in Bown, but, as said there, the court should be very slow to rule that a particular state of facts could not as a matter of law constitute a good reason.

Sexual offences—consent—effect of Sexual Offences Act 2003 s.75CICCARELLI [2011] EWCA Crim 2665; November 3, 2011The judge had been right to rule that there was no evidence

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sufficient to raise the defence that C believed the complain-ant (virtually a stranger) to be consenting when he sexu-ally assaulted her while asleep, applying Sexual Offences Act 2003 s.75(2)(d). The complainant had become drunk at a party, at which, C said, she had made a pass at him. C and his girlfriend had later allowed her to stay in their spare room. Section 75 did not reverse the ordinary burden of proof in criminal cases. It was an evidential provision, creating evidential presumptions about consent in circum-stances where, as a matter of reality and common sense, the strong likelihood was that the complainant would not, in fact, be consenting. If, however, in those circumstances there was sufficient evidence for the jury to consider, then the burden of disproving them remained on the prosecu-tion. Therefore, before the question of the appellant’s rea-sonable belief in the complainant’s consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his be-lief in her consent to him touching her sexually when and although she was fast asleep. C’s mere assertion that he did, in fact, believe in her consent was not sufficient to raise an issue as to whether he did reasonably believe it.

Theft—appropriation—intention permanently to deprive—robbery—Theft Act 1968 ss.1, 3 and 6VINALL AND J [2011] EWCA Crim 6252; November 16, 2011(1) V and J, acting together, punched a youth from his bike and chased him away, took the bike and then abandoned it 50 yards away. Their convictions for robbery were quashed where the judge’s directions to the jury were such as to al-low them to convict of robbery if the intention to perma-nently deprive had only been formed, and appropriation tak-en place, at the point of abandonment, not at or before the acts and threats of violence. The first question for the jury, applying Theft Act 1968 ss.1, 3 and 6, was: Did the defend-ants (1) appropriate the bicycle dishonestly by taking it, (2) intending permanently to deprive the owner of it or intend-ing to treat the bicycle as their own to dispose of regardless of the other’s rights? The taking of the bicycle was itself a sufficient assumption of the rights of the owner to amount to an appropriation. The abandonment was capable of being additional evidence that by taking the bicycle the appellants were, when they took it, assuming the rights of the owner (s.3). The jury could not be sure of theft, however, unless they were also sure that at the time of taking the bicycle ei-ther the appellants had an intention permanently to deprive (s.1) or they intended to treat the bicycle as their own to dispose of regardless of the other’s rights (s.6). (2) The Court considered the relationship between Theft Act 1968 ss.1 and 6, and, reviewing the authorities, preferred the broader approach suggested in Fernandes [1996] 1 Cr.App.R. 175 to that adopted in some of the earlier authorities (Warner [1970] 55 Cr.App.R. 93 and Lloyd [1985] 1 Q.B. 829, and re-ferring to the discussion of the distinction in Raphael [2008] EWCA Crim 1014). The Court found no sign in s.6(1) or (2) that the governing and general words in subs.(1) were in-tended to be limited to specific pre-Theft Act common law exceptions to the requirements of s.1 (nevertheless noting the importance of the distinction between taking for joyrid-ing and theft: Mitchell [2008] EWCA Crim 850). (3) The Court drew attention to Chief Constable of Avon and Somerset Constabulary v Smith, Unreported, November 20,

1984. That judgment represented the plain common sense of most cases of alleged theft of property. If the prosecution was unable to establish an intent permanently to deprive at the mo-ment of taking it may nevertheless establish that the defend-ant exercised such a dominion over the property that it could be inferred that at the time of the taking he or she intended to treat the property as his or her own to dispose of regardless of the owner’s rights. Subsequent “disposal” of the property may be evidence either of an intention at the time of the taking or evidence of an intention at the time of the disposal. When the allegation is theft a later appropriation will suffice; when the allegation is robbery it almost certainly will not.

SENTENCING CASESHistoric offences H [2011] EWCA Crim 2753; November 24, 2011In dealing with “historic” cases, whether involving sexual offences or other types of offence, the following considera-tions should be treated as guidance. Reference to earlier decisions was unlikely to be helpful and was to be discour-aged. Subsequent decisions which did not expressly state that they were intended to amend or amplify the guidance should also be treated as fact specific decisions, and there-fore unlikely to be of assistance to the court. (a) Sentence would be imposed at the date of the sentenc-ing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sen-tencing guidelines relevant to the situation revealed by the established facts. (b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it was wholly unrealistic to attempt an assessment of sentence by seeking to identify what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date it was committed. If maxi-mum sentences had been reduced, the more severe attitude to the offence in early years, even if it could be established, should not apply. (c) As always, the particular circumstances in which the of-fence was committed and its seriousness must be the main focus. Due allowance for the passage of time might be ap-propriate. The date might have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the offence was committed, that remained a continuing feature of the sen-tencing decision. Similarly, if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of or in-vestigated by the police, or had been investigated and not then pursued to trial, these too would be relevant features. (d) In some cases it might be safe to assume that the fact that, notwithstanding the passage of the years, the victim had chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circum-stances in which the facts came to light varied, and care-ful judgment of the harm done to the victim was always a critical feature of the sentencing decision. Simultaneously, equal care needed to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did and the circumstances in which he did it.

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(e) The passing of the years might demonstrate aggravat-ing features if, for example, the defendant had continued to commit sexual crime or he represented a continuing risk to the public. On the other hand, mitigation might be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of posi-tive good character. (f) Early admissions and a guilty plea were of particular im-portance in historic cases. Just because they related to facts which were long past, the defendant would inevitably be tempted to lie his way out of the allegations. It was greatly to his credit if he made early admissions. Even more pow-erful mitigation was available to the offender who out of a sense of guilt and remorse reported himself to the authori-ties. Considerations like these provided the victims with vindication, often a feature of great importance to them (per Lord Judge C.J.).

Diminished responsibility BROWN [2011] EWCA Crim 2796; December 1, 2011The enactment of the Coroners and Justice Act 2009 s.52, which amended the definition of diminished responsibil-ity in the Homicide Act 1957 s.2, has not changed the ap-proach of the sentencing court. The sentencing judge was entitled to reach the conclusion, on the evidence called at the trial, that the appellant’s responsibility for the death of the deceased, although diminished, remained substantial and that he retained real culpability for what he had done. In addressing the correlation between the normal starting points in the Criminal Justice Act 2003 Sch.21, for cases of murder and sentencing following conviction of manslaugh-ter, it should be remembered that in cases of murder the sentencing judge assessed the minimum term to be served for the purposes of punishment and deterrence before any question of release could be considered. In cases of man-slaughter, unless the judge was considering a minimum term following a discretionary sentence of life imprison-ment, the term of years ordered by the sentencing judge did not reflect the minimum term to be served, it specified the term, half of which would be served. It was not necessary for judges seeking to apply the principle in Wood [2010] 1 Cr.App.R.(S.) 2 (p.6) to set out an exact and arithmetical computation of the sentence which would have been passed if there had been a conviction for murder. Whether or not the computation was set out, it provided a helpful method of approach, identifying the necessary features of the case, both the aggravating and mitigating features, and then ap-plying an appropriate discount for the offender’s reduced level of culpability. That was a fact specific decision, to be made by the judge, consistently with the medical evidence and the jury’s verdict, and then publicly explained.

Prescribed custodial sentence—drug trafficking LUCAS [2011] EWCA Crim 2806; November 17, 2011Where a defendant who was convicted at the age of 18 of a class A drug trafficking offence had previous convictions at the ages of 15 and 17 for class A drug trafficking offences, s.110 of the Powers of Criminal Courts (Sentencing) Act applied and the defendant’s age at the time of the earlier of-fences did not amount to “particular circumstances” within s.110(2) which would enable the sentencing court to depart from the statutory minimum sentence.

Factual basis for sentence DUDLEY [2011] EWCA Crim 2805; November 17, 2011Where a defendant pleaded guilty to a charge of conspiracy to supply drugs on a particular basis, the sentencing judge was not entitled to sentence him on a version of the facts which was inconsistent with the basis of plea, having heard the evidence at the trial of fellow conspirators who had been convicted by the jury after a contested trial, without giving the defendant the opportunity to give evidence. If the judge was minded to reject the basis of plea, he should have de-clared this and offered the appellant the chance of a Newton hearing.

Abduction of child by parent KAYANI; SOLLIMAN [2011] EWCA Crim 2871; December 13, 2011Child abduction can take many forms. It might include the abduction of a child for a few days, or even a week or two, followed by the child’s return, effectively undamaged and with the loving relationship between parent and child un-harmed. At the other extreme there were offences of forced marriage which ultimately culminated in what in reality was rape, or cases where the child was deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other was irremediably severed. At its most serious, the offence of child abduction was akin to kidnapping. There were some cases of child abduction, where, given the maximum available sentence of seven years, with or without the appropriate discount for a guilty plea, the available sentencing options did not meet the true justice of the case. In C [1991] 2 F.L.R. 25, the Court of Ap-peal indicated that in any case which amounted to child abduction contrary to the 1984 Act, prosecutors should avoid charging anyone with kidnapping at common law. In the court’s view, given current conditions, it no longer necessarily followed that for policy reasons a charge of kidnapping must always be deemed inappropriate. The ob-servation in C had been overtaken by events and had no continuing authority. The abduction of children from a loving parent was an of-fence of unspeakable cruelty to the loving parent and to the child or children, whatever they might later think of the parent from whom they had been estranged as a result of the abduction. Any reference in mitigation to the right to family life, whether at common law or in accordance with Art.8 of the European Convention on Human Rights, was misconceived. This submission involved praying in aid and seeking to rely on the very principle which the de-fendant had deliberately violated. The plight of children, particularly very young children, and the impact on them if the person best able to care for them was imprisoned, was a major consideration in any sentencing decision. Where the only person available to care for children com-mitted serious offences, even allowing for the interests of the children, it did not follow that a custodial sentence of appropriate length to reflect the culpability of the offender and the harm consequent on the offence was inappropri-ate (per Lord Judge C.J.).

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FeatureHearsay Evidence at Strasbourg: a Further Skirmish, or the Final Round?A Comment on Al‑Khawaja and Tahery v UK in the Grand ChamberBy Professor J.R. Spencer, University of Cambridge

On December 15, 2011 the Grand Chamber at Strasbourg de-livered its long-awaited judgment in Al‑Khawaja and Tahery v UK.1 The hearing took place in May 2010, 20 months earlier: a delay surprising in a court which, at regular intervals, con-demns contracting States for failing to render justice within a “reasonable time”. However, if it was a long time coming, the judgment was—at least in this commentator’s view—well worth the wait. The majority judgment is clearly reasoned, clearly expressed and provides a solution to the legal issues that seems both just and workable. And for good measure, in terms of “judicial politics” it defuses a quarrel between Lon-don and Strasbourg that risked getting out of hand.The previous instalment of this long-running legal soap-opera was the decision of the UK Supreme Court in Horncastle,2 delivered even further back in December 2009. The lapse of time between instalments means that a brief synopsis of the background is now required.

The plot so farOnce upon a time, the hearsay rule rendered inadmissible almost any account of an incident other than one delivered in oral evidence by a witness live at trial. The Criminal Jus-tice Act 1988 made some important new exceptions to this rule and the Criminal Justice Act 2003 created a new and longer list, so making the out-of-court statements of absent witnesses generally admissible in cases where the maker of the statement was “unavailable” to give evidence at trial. The 2003 Act creates various safeguards but does not in principle restrict the use that may be made of hearsay evi-dence. Broadly speaking, if one of the exceptions renders a piece of hearsay evidence legally admissible the court is entitled to convict on it, even if it is the central piece of evi-dence in the case. To this extent there is a possible conflict between English law and Art.6(3)(d) of the European Con-vention on Human Rights, which lists as one of the basic rights for criminal defendants “the right to examine or have examined the witnesses against him”.In 2004 Al-Khawaja, a doctor, was convicted of indecently assaulting a patient, who had died before the trial, on the ba-sis of the statement she had earlier made to the police—ad-mitted under the hearsay provisions of the CJA 1988, which were then still in force. In 2005 Tahery was convicted of a stabbing on the basis of the police witness statement of a frightened witness, admitted under the provisions of the CJA 2003, which had by then replaced the 1988 provisions. In January 2009 the UK was condemned by the Fourth Sec-tion of the Strasbourg Court on the ground that the convic-tions in both cases infringed the convicted defendants’ right 1 Applications Nos 26766/05 and 22228/06.2 [2009] UKSC 14; [2010] 2 A.C. 373.

to a fair trial under Art.6—the problem being the use of hearsay evidence, which the Court considered to infringe Art.6(3)(d).The decision was ill-received in the UK and in March 2010 the government successfully applied to have the cases re-ferred to the Grand Chamber. Meanwhile in March 2009 the Court of Appeal, in Horncastle,3 had refused to follow the decision. The rebellion spread further in December of that year when the Supreme Court upheld the Court of Ap-peal, delivering a long judgment trenchantly criticising the reasoning of the Fourth Section: a judgment evidently writ-ten with the Grand Chamber as its intended readership.4 The arguments it contained were summarised in an earlier number of Archbold Review.5

The legal issue in a nutshellSo far as relevant for present purposes, Art.6 of the Euro-pean Convention on Human Rights is as follows:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …

(2) …

(3) Everyone charged with a criminal offence has the following minimum rights:

…

(d) to examine or have examined witnesses against him and to obtain the at-tendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

The key question at the centre of this litigation was this: will there invariably be a violation of Art.6(3)(d) if a defendant is convicted in a case where some part of the evidence came from a witness to whom he was unable to put questions? Or only sometimes? And if only sometimes, when?On a literal reading of the Article, the answer would be “invariably”. Article 6(3) sets out a list of what it de-scribes as “minimum rights”. On the face of it, “minimum rights” means rights that must always be respected—es-sential components of a fair trial, not rights that can be disregarded if the proceedings would be in some vague sense “fair” without them. However, such a fundamental-ist reading would be inconvenient and result in manifest-ly guilty people getting off. In consequence, the previous case-law of the Strasbourg Court has watered Art.6(3)(d) down to a limited extent; and in the UK, the hearsay provisions of the Criminal Justice Acts of 1988 and 2003 were enacted on the assumption that it can be watered down still further. The Strasbourg dilution of Art.6(3)(d) was achieved by

3 [2009] EWCA Crim 964; [2010] 2 W.L.R. 47.4 [2009] UKSC 124; [2010] 2 A.C. 373.5 “Squaring up to Strasbourg” [2010] 1 Archbold Review, 6–9.

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reading it as subject to a qualification that the right only applies in respect of those witnesses who provide the sole or decisive evidence in the case. On this view there is no infringement of Art.6(3)(d), and hence of the defendant’s wider right to a fair trial, if some small or incidental part of the total evidence comes from witnesses whom the de-fendant has no opportunity to question; but there is an infringement if such evidence forms the centrepiece of the prosecution case. By contrast, the English hearsay re-forms of 1988 and 2003 proceeded on the assumption that there is no violation even where the witness or witnesses whom the defendant was unable to question supply the sole or decisive evidence in the case, provided sufficient “counterbalancing factors” are present to offset any disad-vantage this might cause him. Put another way, the difference between the Strasbourg interpretation of Art.6(3)(d) and the interpretation under-lying the English reforms to the hearsay rule in 1988 and 2003 was as to whether Art.6(3)(d) exists to protect some higher procedural value, or is purely instrumental: i.e. just one of a number of tools designed to protect the innocent from conviction, able to be left in the legal toolbox when other tools can be used to do the job as well. And behind this difference of opinion lies two subtly different concep-tions of what constitutes a “fair trial”. Is a “fair trial” simply one that is conducted in such a way as to avoid those fea-tures which tend to produce convictions of the innocent? Or does a “fair trial” also mean one in which certain procedural values are observed, whether or not their observance is re-quired in order to eliminate this risk? (The same difference of conception underlies the divergent approaches of differ-ent people at different times in England as to whether, in the context of s.2 of the Criminal Appeal Act 1968, a convic-tion is “unsafe”.6)Though it did not formulate the issue in these explicit terms, it was the broader conception of “fair trial” that underlay the decision of the Strasbourg Fourth Chamber in January 2009, and the narrower one that underlay the decision of the UK Supreme Court in December of that year. Accord-ing to the UK Supreme Court there is no problem about a trial being “unfair” where the “sole or decisive” evidence all comes from sources to which the defence has been un-able to put questions, provided sufficient “counterbalancing factors” are present; and in their view, such “counterbalanc-ing factors” are provided by the new scheme for hearsay evidence set out in Pt 11 of the Criminal Justice Act 2003.

The decision of the Grand ChamberThe Grand Chamber, by an overwhelming majority of 15 to two, conceded the essential point that the Court of Appeal and the Supreme Court were making: in certain cases it is possible for the defendant to have a “fair trial” as required by Art.6 where the main body of the prosecution evidence comes from witnesses he was unable to question or have questioned. However, said the judges, a fair trial is possible in such circum-stances only provided two conditions have been met.The first is that there should be a really good reason for the witness’s absence from the trial. Good reasons, said the Grand Chamber, could take various forms, of which it was at present necessary to examine only those put forward

6 It was at the centre of the previous government’s controversial attempt to persuade Parliament to change the law so as to prevent the Court of Appeal from quashing convictions of those whom they believed to have committed the offence of which they had been accused. See inter alia “Quashing Convictions for Procedural Irregularities” [2007] Crim.L.R. 835.

in the two cases that were before them. Death, they said, was obviously a good reason. So too in principle was fear. Fear would obviously be a sufficient reason if the defendant or his associates had directly caused it by threatening the witness with reprisals; but even in the absence of explicit threats, general fear would be a sufficient reason if, for ex-ample, it was “attributable to the notoriety of a defendant or his associates”. Furthermore, “fear of death or injury of another person or of financial loss are all relevant consid-erations in determining whether a witness should not be required to give oral evidence”.The second condition is that sufficient safeguards are pro-vided to guard against a miscarriage of justice resulting from the defendant’s inability to question his accusers. Here the key paragraph in the majority judgment is as follows:[147] The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny…The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assess-ment of the reliability of that evidence to take place. That would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in that case.

The Grand Chamber then examined the procedural safe-guards surrounding the admission of hearsay evidence in the reformed law contained in the CJA 2003 and in the hearsay provisions of the CJA 1988 which the 2003 Act had replaced, and concluded that, properly applied, they were capable of “delivering the goods”.Viewed from the perspective of the Court of Appeal and the Supreme Court, so far so good; but the English judicial team did not achieve a total victory.First, the Grand Chamber then decided to examine in detail the facts of the two cases before them, to see whether the applicants had in fact received a “fair trial” according to the Grand Chamber’s perception of the concept; and they held that whereas Al-Khawaja had received a fair trial, Tahery had not—and in respect of Tahery’s case the UK was condemned. In Al-Khawaja’s case the complainant had died, so to produce her as a live witness at the trial was obviously impossible. Though there was some other evidence in the case, her po-lice witness-statement complaining of the offence was the “sole or decisive” evidence in the case, in the sense that, un-less it could be put before the court, there would have been no chance of convicting the defendant of indecently assault-ing her. But her evidence was supported by the fact that, immediately after the alleged incident, she had complained about it to two friends, both of whom gave evidence at the trial, and more importantly, it was also corroborated by the fact that another patient, who also gave live evidence and was cross-examined, claimed to be the victim of a very similar assault. All that, taken together with the fact that the judge had warned the jury that the defendant’s inability to cross-examine the complainant rendered her evidence less cogent, meant that the Al-Khawaja’s trial had been a fair one.Tahery’s case arose out of a street fight in the early hours of morning between a group of Kurds and a group of Iranians in the course of which an Iranian, Sadeghi, had been twice stabbed in the back. Tahery was not at first the obvious sus-pect because he had administered first aid to Sadeghi and accompanied him to hospital. However another participant in the disturbance, one Takhtshami, later told the police

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that he had seen Tahery wield the knife. No other person identified Tahery as the attacker; though in the immediate aftermath of the stabbing Tahery drew suspicion on himself by claiming—falsely as he then admitted—that the stab-bing was the work of two fictitious blacks. Before the trial began, Takhtshami told the judge that he had been threat-ened (though he refused to say by whom), and on hearing this, the judge excused him from giving oral evidence and allowed the prosecution to put his police witness-statement in evidence instead. Tahery then gave evidence denying the offence, though admitting the lie about the blacks. On this evidence he was convicted. The Court of Appeal reduced his sentence from nine years’ imprisonment to seven, but dismissed his appeal against conviction. However, if the Court of Appeal was satisfied that Tahery’s conviction was “safe”, the Grand Chamber was not satisfied that the pro-ceedings leading up to it were a “fair trial”. First, Takhts-chami’s evidence—unlike some of the examples of hearsay given by the Supreme Court and the Court of Appeal in Horncastle—was not “demonstrably reliable”. And second-ly, it stood alone: no other evidence in the case corrobo-rated the key parts of it. In the light of these two factors, the judge’s warning to the jury about the dangers of untested evidence were insufficient to counter the disadvantage to Tahery in his ability to conduct a cross-examination.

(With this assessment of the two cases it is surely hard to dis-agree. The complainant in Al‑Khawaja was unlikely to have been honestly mistaken about what the doctor did to her, and had no obvious motive for telling lies. But Takhtshami, like any other witness to a street fight, could easily have been honestly mistaken in what he thought he saw, and as a partic-ipant in the disturbance himself there were obvious reasons why he might wish to lie. He was, in fact, the very sort of wit-ness whose evidence is sometimes dramatically demolished by a cross-examination—which may indeed have been the real reason why he was so anxious to avoid the witness-box. And whereas the complaint’s evidence in Al‑Khawaja was corroborated, Takhtshami’s evidence was not. In retrospect, it seems surprising that the Court of Appeal pronounced the resulting conviction “safe”.)Secondly, the Supreme Court’s victory was qualified by the fact that Grand Chamber refused to accept several key ele-ments of its reasoning. One was the Supreme Court’s argument that the “sole or decisive” test is irrational, inflexible and unworkable. This might be so, the Grand Chamber said, if the three words were to be read narrowly and literally. But there was no real problem if the phrase is interpreted, as it should be, in a broader sense as meaning the central corpus of evidence, without which the case could not proceed. As such, the con-cept was one with which the English law of evidence was al-ready quite familiar. Among other places, they pointed out, it occurs in s.125 of the Criminal Justice Act 2003, which requires the judge to stop a case which depends “wholly or partly” on hearsay evidence which “is so unconvincing that, considering its importance to the case against the defend-ant”, a conviction on it would be unsafe.The Supreme Court had also argued that the “sole or deci-sive” test is misconceived, because it is based on the false notion that all hearsay evidence which is crucial to a case is unreliable or incapable of proper assessment unless tested by cross-examination. This too the Grand Chamber rejected. Rather, it is predicated on the principle that the greater the importance of

the evidence, the greater the unfairness to the defendant in allowing the witness to remain anonymous or to be absent from the trial and the greater the need for safeguards to ensure that the evidence is demonstrably reli-able or that its reliability can be properly tested and assessed.

The Supreme Court’s judgment in Horncastle opened with remarks suggesting that common law systems such as ours should be exempted from the “sole or decisive” rule be-cause the Strasbourg case-law which created it was devel-oped in order to sensitise the systems of continental Europe to the risks involved in hearsay evidence: risks of which the common law systems were already well aware, having in-ternalised them centuries before (remarks which I suspect some continental lawyers will have read as “Don’t preach to us about fair trials—we invented them!”) This line of argu-ment the Grand Chamber also pointedly rejected:The Court accepts that the sole or decisive rule may have been developed in the context of legal systems which permitted a defendant to be convicted on evidence of witnesses whom he did not have an opportunity to challenge … However, the Court notes that the present cases have arisen precisely because the legal system in England and Wales has abandoned the strict common law rule against hearsay evidence.

So where does all this leave us?The most obvious result of this decision is that the looming conflict between Strasbourg and the English legal system over hearsay evidence has been averted. In its judgment the Grand Chamber conceded the essential point that the Court of Appeal and the Supreme Court wished to make. This means that English judges and practitioners, who would have been bound to follow the decision in Horncastle whatever the Grand Chamber had said, can now do so with-out the worry that this will precipitate another condemna-tion for the UK at Strasbourg.That said, however, the condemnation of the UK over Tah‑ery should sound a note of caution. A court which applies the hearsay provisions of the Criminal Justice Act 2003 in such a way as to permit a defendant to be convicted on the basis of a piece of hearsay evidence which stands alone, and which emanated from a witness who might well have lied or been honestly mistaken, and whose lies or honest errors—had there been any—would probably have been exposed in cross-examination, should be aware that a successful appli-cation to Strasbourg could well be the result.A further and more worrying point that emerges from the decision concerns hearsay from a source that is anonymous. In listing the counterbalancing measures that English law currently applies the Grand Chamber mentioned, with ap-parent approval, the rule that “the admission of statements of a witness who is not only absent but anonymous is not admissible”.7 If the Grand Chamber was endorsing a rule that English law will not tolerate attempts by prosecutors to put before the court a statement obtained from a witness whom they wish to protect not only from the ordeal of giv-ing evidence in court but also from having their identities disclosed, then this is welcome. But insofar as it appears to endorse an overriding rule to the effect that no piece of hearsay evidence, however demonstrably reliable, is ever admissible in evidence if the identity of the original maker of the statement is unknown, it is not. Such a rule would have disastrous consequences. (It would, for example, res-urrect the extraordinary decision of the House of Lords in

7 At [148].

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Myers v DPP,8 which held that a prosecutor could not es-tablish which engine had been originally fitted into which car by producing microfilms of record-cards filled in by the factory workers, now unidentified, who routinely noted the chassis and the engine numbers when working on the assembly-line some years before.)A final point is one which this author has already made, at greater length, in his commentary on Horncastle.9 The prob-lem of squaring the defendant’s Art.6 right to question his accusers with the fact that it is sometimes impossible to produce key witnesses at trial would be reduced, if not com-pletely removed, if English criminal procedure provided a mechanism for the examination and cross-examination 8 [1965] A.C. 1001; and see this author’s note on Ford [2010] EWCA Crim 2250 at [2011] Cambridge Law Journal 494.9 Note 5 above.

ahead of trial of witnesses whose inability or reluctance to testify at trial can be foreseen. Procedures of this sort exist in many other legal systems; and indeed a general one for-merly existed in this country in the days of “old style” com-mittals. A new mechanism for the pre-trial cross-examination of vulnerable witnesses was created 13 years ago by s.28 of the Youth Justice and Criminal Evidence Act 1999, but never implemented. In recent years, serious pressure has been building for its belated implementation. At the time of writing the government is said to be considering this—though with nervousness about cost implications. Let us hope that before long the money as well as the will is to be found.10

10 The literature on this is sizeable, and growing. See inter alia E. Henderson, K. Hanna and E. Davies, “Pre-recording Children’s Evidence: the Western Australian Experience” [2012] Crim.L.R. 3, and J.R. Spencer and Michael Lamb (eds), Children and Cross‑examination: a Time for Change? (Hart Publishing, 2012—in press).

CommentShooting (and judging) in the dark?By Jonathan Rogers, Senior Lecturer at UCL, Fellow of the Middle TempleThe Supreme Court delivered a set of opinions in Gnango [2011] UKSC 59 that may, in terms of the substantive issues of murder and complicity, be warmly welcomed. Yet the out-come itself remains contentious, so much so that their deci-sion to restore Gnango’s conviction may constitute a viola-tion of Art.6 of the European Convention on Human Rights.As far as we can be sure from the fact that the jury convict-ed Gnango of attempted murder—a verdict against which he did not appeal—17 years old Gnango was searching for someone who became known as “Bandana Man” (BM) in a car park close to some residential accommodation. He asked the only eyewitnesses present whether they had seen him, explaining that BM owed him money. According to the eyewitnesses, BM then appeared and shot at Gnango, apparently on sight. Gnango returned fire and in the en-suing battle an unfortunate bystander, Ms Pniewska, was shot dead. She must have been shot by BM, since the bullet had not come from Gnango’s weapon. So BM, whoever he is, committed murder, since he must have been trying to kill Gnango at the time and here the doctrine of transferred malice applies. Gnango attempted the murder of BM; but what of Gnango’s liability for the murder committed by BM?At the Crown Court, Gnango’s liability for murder was put to the jury on the basis of joint enterprise liability. One gratify-ing point which runs throughout the litigation is that this was recognised to be a distinct form of complicity. It only arises where two or more persons are jointly committing offence “A” (whether as joint principals or as perpetrator and accom-plices) and in the course of that offence, one participant does a further act which constitutes offence B. Joint enterprise li-ability applies to make everyone who foresaw the further act guilty of offence B too. In the Crown Court, it was thought that Gnango and BM might have been jointly committing an affray by firing their guns, during which Gnango must have foreseen that BM would shoot with intent to kill. The judge did not ask the jury to consider any other route to a murder conviction, and in due course the jury did convict of murder.Unfortunately the application of joint enterprise liability is unsound here. The Court of Appeal had thought that this

was because there could not be said to be a “joint enter-prise” between participants who are trying to kill each other, at least assuming that they had not agreed to have a fight to the death. The Supreme Court thought that any offence they had committed together itself involved a series of shootings, and so no “further” offence arose from that. Only one of these reasons needs to be soundly based to defeat the application of the doctrine, and it is submitted that both are good. The Court of Appeal had accordingly quashed Gnango’s conviction of murder.But the Supreme Court considered two other ways in which Gnango might have committed murder. One route, thought vi-able by six of their seven Lordships, was that Gnango himself caused the death of Ms Pniewska and so committed murder as a (joint) principal. This however should require a jury to have found that his shooting at Bandana Man in turn caused BM to fire the fatal shot. On the facts, this is by no means an inevita-ble conclusion. BM fired the first shot and would (if Gnango had done nothing) have presumably carried on shooting until Gnango was dead, and perhaps would have killed Ms Pniewska in much the same way; or, even after Gnango fired back, BM might yet have been acting as a free agent in continuing the fight, thus making his shooting a novus actus interveniens. One might wonder whether, even if Gnango did cause the death, there was evidence to support a possible finding of self-defence and which should also need to have been put to the jury. It is true that the two of them had clearly met pursu-ant to some sort of arrangement or another, and arguably in order to raise the defence, evidence must be offered not only that D shot to save himself from unlawful attack, but also that he had not earlier provoked or prompted the attack against him. Even so, Gnango had testified that he only wanted to collect money in the car park, and happened to possess the gun because he was intending to sell it to someone else later. So he surely did discharge the evidential burden of self-de-fence. This would not be a problem if we could be sure that the jury rejected self-defence when considering the charge of attempted murder of BM, but there is no mention of self-defence in any of the appellate proceedings.

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The other route to conviction, which was relied on by the same six of their seven Lordships, was that Gnango encour-aged Bandana Man to shoot at him, thus making him an accomplice to BM’s act of murder when BM shot at Gnango and hit Ms Pniewska instead. But their Lordships agreed that this could only apply where Gnango actually encour-aged BM to shoot at him. Exactly why Gnango would have wanted to encourage BM to do this is left unaddressed. Un-surprisingly the trial judge had expressly declined to leave this possibility to the jury. But six of their seven Lordships concluded that nonetheless the jury had found this crucial fact of encouragement! This was because, when addressing the jury on joint enterprise, the trial judge had said:… [I]t is said by the prosecution that BM and the defendant planned to use unlawful violence towards another by having a shoot-out … If you are sure that BM and the defendant joined together to commit such unlawful violence, whether pre-planned or whether on the spur of the moment … then the defendant would be guilty also, along with BM.

It is from these passages that their Lordships inferred that the jury found that each man encouraged the other to fire upon himself. But surely the judge only meant to ask the jury whether the participants each privately “planned” to use their gun; and surely when he referred to them “join-ing together” he did not mean to invite the jury to consider whether they jointly encouraged each other to kill the oth-er. In both passages he surely only meant to invite the jury to consider whether the two men had together committed aggressive acts. One can only agree with Lord Kerr (dis-senting) that their verdict cannot be considered to supply the necessary ingredients of encouragement to murder [at 126]. One may go further; surely no one can feel sure that Gnango would have wanted to encourage BM to fire at him and to have a chance of winning a fight to the death. From this, it should follow that Gnango’s conviction for murder was unsafe, as the Court of Appeal had found (he would still remain guilty of attempted murder of BM). But instead of leaving this case as an example a Supreme Court level of judicial anxiety to quash a conviction of an obvious villain (an anxiety that is most evident in the opinion of Lord Brown at [68]) it is worth considering whether this refusal might now amount to a breach of Art.6 of the ECHR.The argument for a violation is based on Taxquet v Belgium [2010] E.C.H.R. 1806 where the Grand Chamber of the Euro-pean Court of Human Rights held that defendants are entitled to know why they have been convicted in order to have had a fair trial. Whilst this does not mean that lay juries must give reasons, it does mean that their reasons should be capable of being inferred from the conduct of the trial. Thus, it is rel-evant to consider, variously, the precision of the case alleged by the prosecution in the indictment, the extent to which the judge directed the jury on the law and the evidence, and the avenues for appeal against conviction. So, whilst English crimi-nal procedure in general seems unaffected by Taxquet, there may be individual violations. In Gnango, the legal basis of the prosecution for murder was constantly shifting (even during the appeal process), and the Supreme Court upheld a verdict on a surprising factual basis which the trial judge had thought unarguable and had not meant to instruct the jury. Such a case seems to be a prime candidate for an individual violation. One might venture some broad principles as to how a case which is presented on more than one legal or factual basis is likely to be fairly tried, notwithstanding the potential am-biguities which might arise as to the lay jury’s reasons in the case of a conviction.

First, flexibility in the prosecution’s case should be toler-able provided that it is necessitated by the uncertain state of the substantive law or by gaps in their evidence which they cannot be expected to fill. Thus, allegations that D was a thief or a handler, in cases where D is found to have stolen goods, or that D was either the perpetrator or the accom-plice when he is found to be one of a group of men who killed another, should be acceptable, if further specificity is not possible at the outset. It may even be possible to say that D, who does not offer his own account in such cases, waives to some extent any right that the prosecution com-mits itself to one specific allegation. By contrast, where the prosecution should be in a position to commit itself on a factual account, or where their own witness-es change their stance on the facts, it may be fair to require the prosecution to rely on only one account. In Coates [2007] EWCA Crim 1471 the victim had offered an early account of what might be termed “date rape”, but in court had disavowed that statement and made an allegation of “violent” rape. The Court of Appeal held that the jury should not have been per-mitted to convict of either account: they were only entitled to consider the allegation of “violent” rape. (Since D had been convicted in a court-martial, it was actually known to the ap-peal court that the jury had relied on the earlier statement in preference to the victim’s testimony at trial.) It is submitted that compliance with Taxquet may now require that the judge should be prepared to require the prosecution to commit itself to a specific allegation in order that D will have a fair opportu-nity, if convicted, to infer why he was convicted.Second, the appeal court must consider that the jury did find the essential facts which would lead to one legitimate route to conviction. If instead it appears that the jury were directed to consider similar facts but not the essential ones, then the safety of the conviction must depend on the extent of the similarity between what they were asked to consider and what they should have considered, and the extent to which the defendant offered evidence relating to the essential facts. Thus in MD [2004] EWCA Crim 1391, a mother was accused of attempted murder by dislodging a feeding tube in one of her children so that liquids entered his lungs rather than his stom-ach. But rather oddly the jury was directed to consider mur-der on the basis of an “oblique intention” to kill, i.e. that despite not wanting to kill the child by dislodging the feeding tube, she knew that her act was virtually certain to cause death. This was an insensible route to conviction on the facts, not least since the medical evidence was that it would be inherently uncertain whether such an act would cause the liquids to enter the lungs. The Court of Appeal held that this conviction could only be safe if the jury had been directed in terms to consider the more plausible allegation that she directly intended to kill her child. There was admittedly plenty of evidence from which a direct in-tention could be inferred, and given that the jury also convicted the mother on several counts of child neglect, it seems likely that they would have inferred it had they been invited to do so. But this was a substantially different allegation and it had been denied by evidence offered by the mother, and so a conviction would only have been safe if the jury has been instructed as to the proper basis on which the prosecution might succeed. In Gnango, there was insufficient similarity between their finding that both men fired guns together and the essential fact that Gnango should have meant to encourage Bandana Man to fire at him. Such a different—and surprising—allega-tion should have to be squarely put to the jury. If it is not so put, then the uncertainty as to why the jury convicted should mean not only that the conviction is unsafe, but that a failure to quash it should amount to a violation of Art.6 of the ECHR.

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