issue 3, april 20, 2012 archbold · issue 3, april 20, 2012 cases in brief appeal—application for...

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ArchboldReview

Issue 3, April 20, 2012

Cases in briefAppeal—application for retrial subsequent to recording of ac-quittal at Crown Court—power of Court of Appeal to enter-tain applicationBLACKWOOD [2012] EWCA Crim 390; March 5, 2012The Court of Appeal allowed B’s appeal against conviction. No application was made for a retrial. Crown counsel was subsequently instructed to apply for a retrial, and the appli-cation was listed some days later. In the interim, however, a formal order had been sent to the Crown Court, with a request for the computerised court record (CREST) to be amended in accordance with the decision of the Court of Appeal, pursuant to rules of court (Criminal Procedure Rules r.65.7(2); or, if it remained in force, which the Court strongly doubted but did not decide, Criminal Appeal Rules 1968 r.15). It was assumed that the relevant amendment had been made by the time of the application for a retrial. The Court was functus officio by that time. The time after which a judgment could not be changed was when it was formally recorded by the proper officer of the court of trial (Cross (Patrick) [1973] 1 Q.B. 937). Further, in this case (unlike Cross, a sentence appeal), by Criminal Appeal Act 1968 s.2(3), the order operated as a direction to the Crown Court to enter a judgment and verdict of acquittal. There was thus in place a final order to which effect had been given by the entering of a verdict of acquittal, and it could not possibly be open to the Court to order a retrial after the acquittal had been so recorded. Indeed, the terms of the 1968 Act leant towards the conclusion that a retrial must be considered before an order quashing the conviction is notified to the Crown Court. It was highly desirable that prosecuting counsel at a conviction appeal should have clear instructions as to whether to apply for a retrial if the appeal were to be allowed.

Child abduction—removal of child from the jurisdiction—whether defence of necessity potentially availableCS [2012] EWCA Crim 389; February 29, 2012The defence of necessity was not available to CS on a charge of removing a child from the jurisdiction (Child Ab-duction Act 1984 s.1) on the basis that she feared that her ex-husband was sexually abusing their child. The legisla-tive scheme relating to the protection of children, of which

Child Abduction Act 1984 s.1 was part, was premised on the ultimate position of the court to ensure the best interests of the child and that the court must ultimately determine with whom the child was to have contact and reside. Just as the legislative policy of the Misuse of Drugs Act 1971 precluded the defence of necessity in relation to cannabis use in Quayle [2005] 1 W.L.R. 3642, so it was impossible to see how, within the legislative scheme, the legislature could have contemplated that a parent could have the defence of necessity available in respect of this offence, where the whole purpose of making removal an offence was to rein-force the objective of retaining the child within England and Wales so he or she could be subject to the protection of the court. The offence was not concerned with circumstances where a parent contended that it was necessary to refrain from handing the child to another person in the jurisdiction who might subject the child to abuse. Whether the defence might be available in such circumstances was not a mat-ter for decision in this case. The Act was concerned with removing the child from the jurisdiction of the court, which allowed no place for the defence of necessity.

Fraud—false representations—standard form legal document to be strictly interpreted in determining falsityCORNELIUS [2012] EWCA Crim 500; March 3, 2012C, a solicitor, provided a bridging loan to allow a purchaser to buy a property and then apply for a buy-to-let mortgage, requiring the purchaser to make a declaration of trust in his favour. C (acting for both purchaser and building soci-

CONTENTS

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

Sentencing case ....................................................3

Cases in detail .......................................................3

Feature ..................................................................6

Comment ...............................................................9

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ety) provided the building society with the Certificate of Title required by the Solicitors’ Code of Conduct 2007. The fees generated inflated C’s salary and he received payment from the purchaser. On the prosecution case, there was no case to answer on a charge of fraud under Fraud Act 2006 s.2. The Certificate of Title was in the standard form pro-vided by the Council of Mortgage Lenders. In interpreting standard forms of Certificate such this, the court must apply consistent interpretations and not draw fine distinctions. The Certificate was drafted by the Council of Mortgage Lend-ers; and if they wished to impose liability on conveyancers, they had to do so in clear terms: Barclays Bank Plc v Weeks Legg & Dean [1999] Q.B. 309; Midland Bank Plc v Cox Mc-Queen [1999] P.N.L.R. 593. In addition many of the phrases used had well recognised technical meanings derived from centuries of conveyancing practice. The declaration in the Certificate that the building society would have a “good and marketable title … free from prior mortgages or charges and from onerous encumbrances …” was not false—the trust deed was unregistered and C was not in actual occupation, the mortgage to the building society took priority, and the building society acquired a good and marketable title free from the interest created by the trust. Even if the trust could be described as an encumbrance (which was itself doubtful) it could not be described as an “onerous” encumbrance. The further statement that no solicitor in C’s firm was interested in the property as mortgagor was also true. The Court reject-ed the Crown’s submission that “as mortgagor” should be construed widely to protect lenders: the word “mortgagor” was a technical term. It meant the person who granted the mortgage. It would be wrong to interpret it more widely. C did not grant the mortgage: it was granted by the registered proprietor. The Court declined to substitute (Criminal Ap-peal Act 1968 s.3) convictions for attempt: the Court could not conclude that the jury would have found the very tech-nical representations to have been made dishonestly if they had been directed that they were true.

[Comment: the appeal was heard by a five judge Court con-vened because the original grounds of appeal involved the argument that Ghosh [1982] Q.B. 1053 was, in part, wrong in law. The question of the falsity of the representations was raised by the Court itself during the course of the appeal, leaving the Ghosh point unventilated in the judgment].

Perverting the course of justice—retraction of a true allega-tion—whether defences available; prosecution discretion to bring proceedings—proper approach of the CourtA [2012] EWCA Crim 434; March 13, 2012(1) A made then retracted an allegation of rape against her husband. She was prosecuted on two counts of doing an act tending and intended to pervert the course of justice, one that she made a false accusation, one that the retraction was false, and pleaded guilty to the latter. The conviction was not unsafe. Given proof of the necessary intention and the ingredients of the offence (Vreones [1891] 1 Q.B. 360), the retraction of a true complaint could fall within the am-bit of the offence. The victim of a crime was not entitled to be treated differently from any other witness to a serious offence who falsely retracted truthful evidence. The issue was the defendant’s intention, not her motive, and that if the necessary intent was present the defendant’s motivation, particularly if she was a victim of the crime, was relevant

only to sentence. Contrary to A’s submissions, there was no realistic prospect that she could have run a defence of duress. Duress should not be confused with pressure. The circumstances in which different individuals were subject to pressures were virtually infinite. Such pressures may provide powerful mitigation. But, broadly, duress involved pressure which arose in extreme circumstances, the threat of death or serious injury (which would include rape).(2) The Crown accepted on appeal that, if the current guid-ance to the approach to be adopted by prosecutors to cases where truthful allegations were retracted by the victim of rape or domestic violence (which had been issued as a direct result of A’s case at first instance) had been in ex-istence at the time when the appellant pleaded guilty, she would not have been prosecuted. That did not mean that there was an abuse of process. There was a danger of sat-ellite litigation from challenges to prosecutorial decisions. First, it was fundamental that prosecution decisions were made by the Crown, not the Court. Guidance by the DPP did not provide, as a matter of law, an immunity from pros-ecution. Rather, it reflected proper considerations for the Crown in considering whether to prosecute. Second, pro-vided there was evidence from which the jury may properly convict, it could only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases required a judgment to be made about a mul-tiplicity of interlocking circumstances. Even if it could be shown that the relevant guidance or policy had not been fully adhered to, it did not follow that there was an abuse of process. Indeed, it remained open to the prosecution in an individual case to disapply its own policy or guidance.

Terrorism offences—definition of “terrorism” in Terrorism Act 2000—international law—whether required reading down of definition to exclude certain insurgents attacking military targets in non-international warsGUL [2012] EWCA Crim 280; February 22, 2012The judge in G’s trial did not misdirect the jury when he told them in answer to a question that acts against military forces in Iraq and Afghanistan fell within the definition of “terror-ism” in Terrorism Act 2000 s.1. On appeal, G argued that the definition had to be read down in accordance with the princi-ples of international law, which did not include in the defini-tion of terrorism attacks by insurgents on military forces in the course of a non-international armed conflict. The Court decided the question on the footing that the conflicts in Iraq and Afghanistan were, at the relevant times, non-internation-al armed conflicts: a certificate from the Foreign Office so opined, which G accepted as at least highly persuasive, and, there being no real attempt to go behind the certificate, the Court declined to find whether or not the certificate was, as it had provisionally considered, conclusive. Considering materials reflecting the development of international law, the Court concluded that, although international law might well develop through state practice or opinio juris a rule restrict-ing the scope of terrorism so that it excluded some types of insurgents attacking the armed forces of a government from the definition of terrorism, the necessary widespread and general state practice or the necessary opinio juris to that effect had not yet been established. Accordingly, there was nothing in international law to exempt those engaged in attacks on the military during the course of an insurgen-

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cy from the definition of terrorism, and the wide and clear definition in s.1 included such acts, when done with the req-uisite intent. Decisions in asylum cases did not require the contrary conclusion, despite finding that insurgent military action against governments did not constitute terrorism or acts contrary to the principles of the United Nations. Both KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292 and SSHD v D [2010] EWCA Civ 1407 were decided without the benefit of the detailed argument on international law available in G’s case. Moreover, in neither case was the court applying the terms of s.1 of the 2000 Act.

Trafficking in human beings—Council of Europe Convention on Action Against Trafficking in Human Beings Art.26—non-punishment obligation—essential principles—evidence and materials relevant on appealN; LE [2012] EWCA Crim 189; March 20, 2012The implementation of Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (CETS No.197) Art.26 (the obligation to provide for the possibil-ity of not imposing penalties on the victims of trafficking for crimes they were compelled to commit) was normally achieved by the proper exercise of the long established prosecutorial discretion which enables the CPS, however strong the evidence may be, to decide that it would be inap-propriate to proceed or to continue with the prosecution of a defendant who was unable to advance duress as a defence but who fell within the protective ambit of Art.26. This re-quired a judgment to be made by the CPS in the individual case in the light of all the evidence. That responsibility was vested not in the court but in the prosecuting authority. The court may intervene in an individual case if its process were to be abused by using the “ultimate sanction” (LM and Oth-ers [2010] EWCA Crim 2327) of a stay of the proceedings. The burden of showing abuse of process on the basis of the improper exercise of the prosecutorial discretion rested on the defendant. The limitations on the jurisdiction were clearly underlined in LM. The fact that it arose for consid-eration in the context of the proper implementation of the United Kingdom’s Convention obligation did not involve the creation of new principles. Rather, well established prin-ciples applied in the specific context of the Art.26 obliga-tion. Apart from the specific jurisdiction to stay proceed-ings where the process is abused, the court may also, in the exercise of its sentencing responsibilities, implement

the Art.26 obligation in the language of the article itself, by dealing with the defendant in a way which did not consti-tute punishment, by ordering an absolute or a conditional discharge. The Court considered voluminous material, much post-dating conviction, when assessing the question of whether the prosecution was an abuse. It concluded that it was possible that fresh evidence may be relevant to an abuse argument (as in Mullen [2000] Q.B. 520); but that the only publication likely to be relevant was the CPS Guidance in force at the time, unless it was argued that the Guidance was inadequate because it had failed to be adequately up-dated; that there were great reservations about the value of expert evidence based on the defendant’s own accounts; that a defendant was provided with one opportunity to give his or her instructions, and only in the most exceptional cases would the Court consider it appropriate to allow a de-fendant to advance fresh instructions for the purposes of an appeal; and that an abuse argument advanced long after conviction was most unlikely to succeed on the basis that a different decision might have been made at the later date.

SENTENCING CASEConfiscationAHMAD and AHMED [2012] EWCA Crim 391; March 2, 2012Where in a “missing trader” fraud, money which was not the proceeds of the fraud was used to conceal the nature of the fraud, it was not correct to find that the benefit was the total amount of money which had passed through the appellants’ company’s bank accounts in furtherance of the fraud, on the basis that it was property obtained “in con-nection with the commission of the offence”. While it was a necessary part of the deception that amounts representing the value of the goods and the VAT thereon should pass through the accounts of the buffer companies, the money which was put up to prime the pump was part of the cost of committing the fraud. It would be surprising if Parliament intended the costs of committing an offence to form part of the benefit of the offence. To make a confiscation order which included within the benefit the cost of committing the crime seemed to be contrary to the object of the legisla-tion and that part of the confiscation order would operate by way of a fine. Waller [2009] 1 Cr.App.R.(S.) 76 (p.449) not followed.

Cases in detailCHINN [2012] EWCA Crim 501; March 15, 2012The appellant was convicted of one count of unlawful wounding, contrary to s.20 of the Offences against the Person Act 1861 and was acquitted on a similar count on the direction of the judge who upheld a submission of “no case to answer” at the conclusion of the prosecution case (which was that the appellant had thrown glass bottles at two young women in a nightclub, one after the other). Both alleged victims gave evidence, as did a witness, X, who the judge described to the jury as “the closest you will get to an independent witness”. The principal ground of appeal was that at the time that she gave her oral evidence to the jury, X

had no independent recollection of the key issue of whether or not she had seen the appellant throw a glass bottle at the alleged victim. She was only able to confirm that what was in her statement was the truth. The appellant argued that the statement was hearsay, and that none of the conditions of s.120 of the Criminal Justice Act (CJA) 2003 applied and that therefore the evidence of the witness statement should not have been admitted.The Court of Appeal dismissed the appeal. X was clearly entitled to examine her witness statement in an attempt to refresh her memory (the conditions set out in s.139(1)(a) and (b) of the CJA 2003 were fulfilled). The key issue was

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whether, when she made it clear that her memory was not refreshed, s.120(3), (4) and (5) or (4) and (6) of the CJA 2003 applied so as to make admissible the relevant statements in her witness statement. The statements in X’s witness state-ment that identified and described the appellant as the per-son who threw a glass bottle at the alleged victim were ad-missible pursuant to s.120(4) and (5). But other parts of the witness statement were not admissible under s.120(4) and (6) because the proper procedure had not been adopted.Crucially, the Court held that s.120(3) did not apply on the facts of this case. In explaining how s.120(3) came to be drafted, Aikens L.J. said (at para.41),Broadly speaking, the common law position was that previous consistent out of court statements by witnesses were inadmissible as evidence of the facts stated in them. They were hearsay evidence and they did no more than confirm what the witness said in oral evidence in court. The prohibition on adducing such evidence was known variously as ‘the rule against self-cor-roboration’ or ‘the rule against narrative’. However, if a previous statement of a witness made in an out of court document was used to refresh the wit-ness’s memory when giving oral evidence and the witness was then cross-examined on another part of the document which part the witness has not used for the purpose of refreshing his memory, then the document became an exhibit in the trial. The statements in the document did not become evi-dence as such, except insofar as the witness confirmed those parts of the document put to him. Otherwise the document only went to the witness’s consistency, but not as evidence of the truth of its contents: see R v Virgo (1978) 67 Cr App R 323; R v Sekhon (1987) 85 Cr App R 19.

If a re-reading of a previous out of court document fails to refresh the witness’s memory when giving oral evidence at the trial,It seems to us that in those circumstances section 120(3) cannot apply to make admissible as truth of the matters stated any or all of the statements made in the written document. This is for two principal reasons. First, section 120(3) contemplates that the witness does refresh his memory by examining the relevant statement in the out of court document. The effect of that is that his oral evidence about the facts of which he has refreshed his memory are admissible oral evidence in the normal way. The novelty in section 120(3) is that those statements in the document used to refresh the witness’s evidence also become admissible evidence of the matters stated therein.

Secondly, the situation where the witness has made a previous statement when the matters were fresh in his memory but he does not remember them at the time of the trial, even when he has attempted to refresh his memory, is dealt with specifically by section 120(4) and (6). Those provisions contains particular conditions … which must be fulfilled before that previous state-ment becomes admissible as evidence of the matters stated. It would, in our view, subvert the statutory scheme if section 120(3) could be used to make a previous written statement admissible as evidence of the matters stated with-out requiring that the conditions set out in section 120(4) and (6) be fulfilled.

Accordingly, we have concluded that counsels’ intuition, although not per-haps their reasoning, is correct: section 120(3) does not apply in this case (paras 47–49).

The Court then explained s.120(4), which stipulates that a previous statement by a witness is admissible as evidence of the matter stated of which oral evidence by him would be admissible if one of three conditions set out in the succeed-ing sub-sections are satisfied. In addition, there are two “pre-conditions”, set out in s.120(4)(b). These are that witness has to have “indicated”, whilst giving evidence, that to the best of his belief he made the statement concerned and also that to the best of his belief that statement stated the truth.Then turning to s.120(5) (at paras 55–56):We accept that the precise scope of section 120(5) is not entirely clear from the statutory wording. We do not like having to go back to the pre-existing common law to try and work out the possible ambit of the sub-section,

which is, after all, part of a new statutory code on hearsay evidence in crimi-nal proceedings. But we accept that this exercise may assist in construing the sub-section. At common law a previous identification (particularly of the accused) was admissible as evidence of that fact at trial. Originally the rationale was that this could neutralise the argument that a witness only identified the accused because he was in the dock. The type of previous identification admissible was extended to out of court ‘photofits’ by the complainant of the accused or a complainant’s description that enabled a police artist to sketch the accused’s likeness. But if a witness saw a lorry involved in an incident and noted its registration number, then gave the number to a policeman who had not seen the lorry, the evidence by the policeman of his note of the lorry’s number plate was held by the Divisional Court to be inadmissible hearsay: see Jones v Metcalfe [1967] 1 WLR 1286.

The Law Commission [in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics (1997; Cm 3670)] approved the ‘previous iden-tification’ exception to the hearsay rule, but thought that it should be ex-tended to cover descriptions as well as identifications and also believed it should apply to descriptions or identifications of objects and places as well as people: see paras 10.46—10.52. The effect of section 120(5) is, clearly, to reverse Jones v Metcalfe.

The Court saw some force in the argument that it cannot have been the intention of Parliament that s.120(5) could be so broad that it could be used to circumvent the safeguards set out in s.120(6):However, in order to work out the precise scope of section 120(5) we think it is necessary to look more closely at its purpose. The previous statement of a witness will have identified or described a person, object or place that is connected with an alleged offence or other relevant event. A description of a person, object or place that is made in a vacuum is of no use in criminal proceedings. The description or identification has to be put in the relevant context because the person, or object or place is being described or identi-fied for a particular purpose in the criminal proceedings. Thus the witness may say in the statement that it was Mr X who was at the ABC Bar on a certain day at a certain time. That statement identifies Mr X in this way be-cause it is that identification at that place and time that is relevant; probably to an alleged offence at the ABC Bar at a particular time. The same must be true of an object and a place.

Thus, we conclude that section 120(4) and (5) can be used to admit parts of [X’s] witness statement, but not the whole of it. The parts that describe the appellant and identify him as being the person who was in the nightclub and then threw a glass bottle that hit [the complainant] are, in our view, admissible under section 120(5). But other parts of the narrative in the wit-ness statement that go beyond identifying or describing the appellant and the fact that it was him that threw the glass bottle, are not admissible under section 120(4) and (5) (paras 57–58).

The Court seemed to find it easier to conclude that the con-ditions of s.120(6) could have been fulfilled here. But they were not prepared to say that X’s witness statement was ad-missible under s.120(4) and (6),because it is clear that no one at the time considered that subsection or its applicability or whether the two cumulative conditions in section 120(6) had, in fact, been fulfilled. The first condition is that the statement was made when the matters stated were fresh in the witness’s memory and he cannot now re-member them. This will not often be contested, but if it is, then it is for a judge to decide the issue. It was not done in this case (para.62).

The second condition is that the witness cannot reasonably be expected to re-member the matters stated in the previous statement well enough now to give oral evidence of it. This may well be disputed. If it is then the judge must make an assessment and give a ruling on the point. The assessment will depend (amongst other things) on the characteristics of this particular witness, the nature of the particular incident, the circumstances in which it occurred and also other fac-tors such as what has happened to the witness between the time of the incident and the trial. The judge has to take all relevant factors into account then decide, objectively, whether that witness could reasonably be expected to remember the relevant matters at the time of the trial well enough to give oral evidence of them at the trial. The judge did not do that exercise in this case (paras 62–63).

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So to the Court’s final advice (at paras 65–66):Despite the lack of any specific rules in the CPR on the point, we would sug-gest that the correct way to have dealt with the situation which arose in this case, where section 120(4) and (6) might apply, is as follows: once the witness had said she could not now remember whether it was the appellant who had thrown the glass bottle and that her statement did not refresh her memory, counsel for the defence should have been asked whether he objected to the witness statement (or identified parts of it) being adduced as evidence of the relevant matter stated in it. If he said that he did object, then, in the absence of the jury, the witness should have been asked why she did not now recall the matters that were in her statement. Counsel for the defence could then have cross-examined on both the alleged failure of memory and the alleged rea-sons for it. If there were any further arguments about excluding the evidence on grounds based on section 78 of the Police and Criminal Evidence Act 1984, (see section 126(2) of the CJA), then those should have been addressed then. The judge should then, in the absence of the jury, have ruled on those mat-ters and, if he had accepted the submission that the witness statement should be adduced (or a relevant part of it), it would then have been adduced in the presence of the jury. Those matters would then have been evidence of the matters stated as if they had been adduced directly in oral evidence.

In such a case when the judge sums up he will explain shortly why the jury can consider the written material, stating why, in the case of this matter and this witness, she could not reasonably be expected to remember that matter well enough to give oral evidence in the proceedings. No reference to hear-say evidence or the statute itself need be necessary. The judge will also, of course, direct the jury to consider the reliability of the witness’ earlier rec-ollection of the subject matter of the statement that has been admitted and emphasise that it is for the jury to decide on the weight that they attribute to the evidence in the previous statement.

[Comment: What a meal! The situation must be pretty frequent in “real life”: indeed, many witnesses who say, “yes, now I re-member” are really saying, “well, I can’t really remember but I can imagine that it must have been the way it was when I gave the statement”. It seems faintly ridiculous that a judge has to explain to a jury why they can consider material which must surely appear to the jury as highly relevant, and better evidence than the oral evidence presented to the court many months or even years after the events in question.The law is far from straightforward. Even at the appeal hear-ing, neither counsel relied on s.120(5) but the Court itself decided that it could be relevant and invited further written submissions. And the Court does not explore the judge’s power to stop a case under s.125, and to exclude evidence under s.78 of PACE 1984. Does it have to be so difficult? What a pity that witnesses’ statements to the police are not video recorded and shown to the jury as the best evidence, on which the witness could then be cross-examined.]

DOWDS [2012] EWCA Crim 281; February 22, 2012The appellant, a 49 year old college lecturer and habitual heavy binge drinker, had killed his partner, having stabbed her about 60 times. The trial judge had ruled that voluntary and temporary drunkenness could not found the partial de-fence of intoxication. The appellant was convicted of murder (and sentenced to life, with a minimum term of 17 years).The Court of Appeal dismissed the appeal, thereby con-forming that acute voluntary intoxication is not capable of giving rise to the partial defence of diminished responsibil-ity, despite the amendments to s.2 of the Homicide Act 1957 made by s.52 of the Coroners and Justice Act, which now provides, inter alia:

(1) A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition,

(b) substantially impaired D’s ability to do one or more of the things men-tioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

The Court of Appeal provides a detailed review of the his-tory of the partial defence of diminished responsibility, and of the law on voluntary drunkenness in English criminal law. It also discusses at some length the standard medical classifications of medical conditions and health problems (namely, ICD-1- and DSM-IV), concluding (at paras 31–32):It follows that a great many conditions thus included for medical purposes raise important additional legal questions when one is seeking to invoke them in a forensic context. ‘Intermittent explosive disorder’, for example, may well be a medically useful description of something which underlies the vast majority of violent offending, but any suggestion that it could give rise to a defence, whether because it amounted to an impairment of mental functioning or otherwise, would, to say the least, demand extremely care-ful attention. In other words, the medical classification begs the question whether the condition is simply a description of (often criminal) behaviour, or is capable of forming a defence to an allegation of such.

The Supreme Court of Canada addressed a similar point in R. v. Bouchard-Lebrun 2011 SCC 58, in ruling that a defendant who was severely intoxi-cated by voluntarily taken drugs could not rely on the defence of insanity under the Criminal Code. Giving the judgment of the court, Lebel J ob-served at [61–62] that:

‘For the purposes of the Criminal Code, “disease of the mind” is a legal concept with a medical dimension… the trial judge is not bound by the medical evidence, since medical experts generally take no account of the policy component of the analysis required by s.16 Cr. C.’

The argument that “acute intoxication” is a “recognised med-ical condition” did not mean that diminished responsibility should have been left to the jury. Nor was such an under-standing required by “the canon of statutory construction usually labelled the principle against doubtful criminality or doubtful penalisation” (para.36). There is simply no occasion which can be envisaged in which any citizen might order his affairs on the basis of a misunderstanding of the extent of the partial defence of diminished responsibility. It was quite clear to the Court, relying in particular on the Law Com-mission’s Report Murder, Manslaughter and Infanticide Law Com No.304 (2006), that the re-formulation of the statutory conditions for diminished responsibility was not intended to reverse the well established rule that voluntary acute in-toxication is not capable of being relied upon to found dimin-ished responsibility:The presence of a ‘recognised medical condition’ is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility (para.40).

[Comment: This is an unsurprising decision. But it does highlight the role that “policy” plays in this area. Times may change, of course: readers might enjoy The Royal Society’s short paper which explores the intersection of Neuroscience and the law, published in December 2011. It is available at http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/projects/brain-waves/Brain-Waves-4.pdf.]

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FeatureHull and Caffrey: The Adaptation of Life SentencesBy Jonathan Bild, PhD Student, University of Cambridge

The mandatory life sentence for murder is retained in both England and Wales and in Ireland. However, the nature of the life sentence in the two jurisdictions is so different that when an offender convicted of murder in one jurisdiction transfers back to the other to serve their sentence the pro-visions on continued enforcement in the Convention on the Transfer of Sentenced Prisoners 1983 (Council of Europe) pose a very real challenge. Article 10 of the 1983 Convention, which governs inter-jurisdictional transfers between Eng-land and Wales and Ireland,1 states that:

(1) In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

(2) If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its na-ture, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.

In Hull [2011] EWCA Crim 1261 and Caffrey v The Gover-nor of Portlaoise Prison [2012] IESC 4, courts on both sides of the Irish Sea were faced with a seemingly unavoidable choice between placing transferred lifers in a significantly advantageous position or of running the risk of contraven-ing the 1983 Convention by potentially aggravating the sentence. Although the Irish Supreme Court took a rather different approach to the problem than that taken by the Court of Appeal last year, both courts ultimately reached a similar conclusion. The cases provide useful illustrations of the problems which will doubtless arise as the transfer of sentenced prisoners becomes more frequent.

HullNorman Hull, a British citizen, was convicted of murder in the Republic of Ireland in 1994 and sentenced to life impris-onment. Having served nearly 13 years’ imprisonment in Ireland, Hull transferred back to England in 2007 to con-tinue serving his sentence. In 2010 his case was referred to the High Court under the provisions of s.273 of the Crimi-nal Justice Act 2003, for the purposes of setting a minimum term under s.269 of the 2003 Act, and a minimum term of 18 years was imposed. Hull sought leave to appeal against this decision, arguing that the minimum term should be seven years on the grounds that he was entitled to a parole review in Ireland at that time, and as he was still serving an Irish-

1 As a result of an opt-out negotiated by the Irish Government, the European Union Council Framework Decision 2008/909/JHA, which came into force on December 5, 2011, will not apply to transfers between the United Kingdom and Ireland (HC Hansard, Vol.539, col.660, 31 January 2012). The Framework Decision is designed to speed up the transfer of sentenced prisoners between European Union countries by removing the requirement to obtain the administering State’s consent to the transfer and by significantly eroding the right of the prisoner to refuse repatriation. In addition to the Irish opt-out, Poland was granted a temporary derogation of five years “in the light of an increased mobility of Polish citizens within the Union” (Preamble to the EU Framework Decision, para.11).

imposed life sentence, he should also be entitled to reviews by the Parole Board in England and Wales after the same period.When setting the minimum term for the purposes of adapt-ing Hull’s life sentence for its enforcement in England and Wales, the Court of Appeal considered that three ap-proaches were possible: either (1) since lifers in Ireland are subject to administrative release, the judge could impose a whole life term, subject only to compassionate statutory release by the Secretary of State; (2) the judge could fix the minimum term solely in accordance with Scheds 21 and/or 22 to the Criminal Justice Act 2003; or (3) the judge could endeavour to give effect to Art.10 of the Convention by seeking to adapt the sentence to achieve correspondence with the punishment as it would have been enforced in the Republic of Ireland.The Court of Appeal opted for the third approach, emphasis-ing that it is not the job of the administering State simply to convert the sentence as though it had been imposed in that jurisdiction (at para.46); they are bound by the Convention to enforce—as far as possible—the sentence imposed in the sentencing State. This poses a significant challenge when a prisoner is transferring back from a jurisdiction where life sentences are subject only to administrative release; in es-sence the court is required to decide how long the relevant Minister would have deemed appropriate in that particular case. Since Hull’s life sentence had been imposed in Ire-land, where a lifer can only be released by the exercise of the Minister for Justice and Equality’s discretion (having first consulted the Parole Board), consideration had to be given to how long he would have served before the Minis-ter exercised this discretion in his case. In rejecting Hull’s appeal, the Court of Appeal upheld the minimum term of 18 years set by the High Court as this would correspond ap-proximately to the time Hull would have served in Ireland had he not transferred.

Caffrey v The Governor of Portlaoise PrisonMaking the journey in the opposite direction was Jonathon Caffrey, convicted of murder in England in 1999, who was transferred back to Ireland in 2005; his minimum term of 12 years expired in March 2010. Caffrey argued that once the minimum term of a mandatory life sentence in England and Wales had been served, continuing detention was justi-fied only on the grounds of public protection; as preventive detention is unconstitutional in Ireland, he must automati-cally be released on the expiry of the minimum term as the period imposed for the purposes of retribution and deter-rence had been satisfied: see People (Attorney General) v. O’Callaghan [1966] I.R. 501.The Irish Supreme Court was, therefore, faced with an even greater dilemma than that considered by the Court of Ap-peal: whilst Hull was simply demanding a parole review, Caf-frey was seeking immediate release. In rejecting Caffrey’s

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appeal, the majority opinion of the court appears at odds with the Court of Appeal’s assertion in Hull that the admin-istering State’s role is not to treat the sentence as though it had been imposed in that jurisdiction. Whilst the Court of Appeal sought to enforce the sentence imposed on Hull in Ireland, the Irish Supreme Court concluded that in Caf-frey’s case, “[t]he management scheme adopted in England is no longer relevant. Irish authorities could not apply the English law. It is inappropriate for the Irish State to make reference to any minimum period in the United Kingdom within which the Appellant would be denied parole review” (at [2012] IESC 4, para.32). In dismissing Caffrey’s appeal, the Chief Justice, Susan Denham, held that the mandatory life sentence was to be managed in accordance to Irish law; Caffrey’s continuing detention must therefore be premised on retributive rather than preventive grounds.There was, however, a dissenting voice. In a view more akin to that expressed by the Court of Appeal in Hull, Mr. Justice Fennelly held that it was the responsibility of the adminis-tering State to enforce the sentence imposed by the sen-tencing State, subject to the caveat of Art.10.2 of the 1983 Convention that the sanction may be adapted if its legal na-ture or duration was incompatible with the law of the admin-istering State. He asserted that “[i]t is clear that, as a matter of English law, if the Appellant had remained to serve his sentence there, his continued detention would have related solely and exclusively to the question of danger to the pub-lic” (at para.18 of the dissenting opinion) and thus if Caffrey is continuing to serve his English life sentence, he was in fact detained purely for preventive purposes which was in-compatible with Irish law. Accordingly, having served the period required for the purposes of retribution and deter-rence, Caffrey was no longer lawfully detained and should have been released upon the expiry of his minimum term.The implications of adopting this view would have been sig-nificant. If the Irish Supreme Court had decided that the life sentence was to be enforced as it would have been in Eng-land, then the irresistible conclusion would be that a trans-ferred lifer could not remain in custody beyond the end of their minimum term as it would be preventive detention. The mandatory lifer transferring back to Ireland could look forward to automatic release upon expiry of the minimum term—a perverse outcome as this is absent from the legal nature of the life sentence in either jurisdiction.

Have Hull and Caffrey had their sentences aggravated?As a result of the manner in which the courts have adapted their life sentences it is possible to make a strong case that both Hull and Caffrey are in a worse position after transfer-ring. In Hull’s case, it is interesting to note that the Court of Appeal did not consider the nature of the parole process when adapting his sentence; no mention is made of the ab-sence of preventive detention in the Irish life sentence and yet Hull will now be subjected to a parole process which hinges entirely on preventive considerations.More significantly, the expiry of a minimum term and re-lease from prison are not one and the same; the Court of Appeal concluded that “given his character and antecedents it is probable that he would have been released after about 18 years” (see [2011] EWCA Crim 1261, para.54) and that this justified the imposition of a minimum term of the same period. However, whilst the suggestion is that had Hull re-mained in Ireland he would have been released after about

18 years, his position in England is now that he is eligible to be considered for release after 18 years; with only 15 per cent of Parole Board decisions in cases of on/post tariff and recall life sentence prisoners being an order for release in 2010/11,2 being eligible for parole and being released on parole are two very different things. It is surprising that Hull did not argue that, like Caffrey, he too should be auto-matically released upon the expiry of his minimum term—either on the grounds that he was serving a life sentence which did not allow for preventive detention or that the 18 years imposed was the time that he would have served in Ireland, not the time at which he became eligible for parole.Caffrey, meanwhile, continues to serve a life sentence for retributive purposes when he could only have remained in prison in England on preventive grounds had he not trans-ferred. The parole process to which Caffrey is now subject-ed takes into account a far wider range of factors than the process in England and Wales; accordingly, he can continue to be detained for a wider range of reasons.

The meaning of the mandatory life sentenceThe developments brought about in England and Wales by the Criminal Justice Act 2003 in response to the decisions in Stafford v United Kingdom [2002] 35 E.H.R.R. 32 and Secre-tary of State for the Home Department, Ex p. Anderson [2002] UKHL 46 have not been mirrored in the Republic of Ireland, where the lifer system remains shrouded in mystery.Since the complete abolition of the death penalty in Ireland in 1990, all adult offenders convicted of murder are subject to a mandatory life sentence.3 Judges have no further role in the sentencing process save for certain circumstances—prescribed by statute—where they must specify that the minimum period of imprisonment to be served is at least 40 years.4 No tariff is set for mandatory lifers who do not fall within these provisions; release from custody is determined by the Minister for Justice and Equality, having taken ad-vice from the Parole Board. They will first have their cases reviewed by the Parole Board after seven years, although since the establishment of the Board in 2001 no life sen-tence prisoner has been released at this point (see Hull [2011] EWCA Crim 1261 at para.30).The factor underpinning the difference between the manda-tory life sentence in Ireland and that in England and Wales is that the Irish life sentence is characterised as being whol-ly punitive in nature. Whereas the life sentence in England and Wales has long been acknowledged as consisting of two distinct phases—a backward-looking minimum term for the purposes of retribution and deterrence followed by possi-ble continuing detention on the grounds of public protec-tion—such a sentence would be incompatible with the Irish Constitution. This distinction, recently re-affirmed by the Supreme Court of Ireland in Lynch and another v Minister for Justice, Equality and Law Reform and others [2010] IESC 34 has, thus far, proved crucial in perpetuating the Minis-

2 Parole Board of England and Wales Annual Report and Accounts 2010/11, p.38. Available at: http://www.justice.gov.uk/downloads/publications/corporate-reports/parole-board/parole-board-annual-reports-2010-11.pdf.3 Criminal Justice Act 1990 s.1. Ireland had for some time been a de facto abolitionist state; the last execution took place in 1954.4 This applies to murders of police or prison officers acting in the course of duty, murders of a treasonous nature and the politically motivated murder of a foreign politician or diplomat (Criminal Justice Act 199 ss.3–4). In these circumstances the judge can set a minimum term in excess of 40 years, although it should be noted that the normal process of remission—at 25%—applies to sentences imposed under this section, thus an offender sentenced to a minimum term of 40 years would be eligible for parole after serving 30 years.

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ter’s role in the management of mandatory lifers despite the evolution of Strasbourg jurisprudence in relation to the Secretary of State’s role in England and Wales.The differing natures of the mandatory life sentences also require the Parole Boards of Ireland and England and Wales to perform different tasks. The mandatory lifer in England and Wales has completed their minimum term by the time the Parole Board considers them for release and thus the determining factor is public protection—the Board cannot direct release unless it is “satisfied that it is no longer neces-sary for the protection of the public that the prisoner should be confined” (s.28(6)(b) of the Crime (Sentences) Act 1997).The Parole Board of Ireland, however, must consider rather more issues when deciding whether to recommend release. According to their latest annual report, the factors taken into account include: the nature and gravity of the offence, the sentence being served and any recommendations made by the judge, the period of the sentence served at the time of the review, the threat to safety of members of the com-munity from release, the risk of further offences being com-mitted while on temporary release, the risk of the prisoner failing to return to custody from any period of temporary release, conduct while in custody, the extent of engagement with the therapeutic services and the likelihood of period of temporary release enhancing reintegration prospects.1

The Irish Parole Board is, therefore, being asked to perform a significantly more complex task than their counterparts in England and Wales as they are also making a judgment on the appropriate time to be served in custody for the gravity of the offence; a consideration that the Parole Board of England and Wales is freed from by the court-imposed minimum term.In summary, the vast majority of mandatory lifers in Ireland will begin their sentence with no indication about when the Minister might give serious consideration to ordering their release. The Parole Board will first consider their case after seven years, although this does not appear to offer any real-istic possibility of release at that time. Even when the Board does make a positive recommendation this has only an ad-visory effect as the ultimate decision rests with the Minis-ter. In England and Wales, on the other hand, the picture is much clearer—a minimum term will be imposed by the court and the mandatory lifer begins their sentence know-ing when they will become eligible for parole.2 Any continu-ing detention beyond the expiry of their minimum term will be predicated on the grounds of public protection.The peculiar nature of the mandatory life sentence in Ire-land, however, is deeply troubling. It is deemed to be a whol-ly punitive sanction, and yet public ministerial pronounce-ments suggest that a life sentence prisoner can expect to be released from custody; a statement about mandatory lifers on the Irish Prison Service website announces that: “[t]he Minister for Justice, Equality and Law Reform, who has the sole power to release this type of prisoner, has recently in-dicated that nobody should expect that even in the absence of aggravating factors and even with the mitigating factors of admission of guilt, remorse, good behaviour and capac-ity for rehabilitation that there is a likelihood of being set 1 The Parole Board of Ireland Annual Report 2010, p.7. Available at: http://www.inis.gov.ie/en/JELR/ParoleBoardAnnRpt2010.pdf/Files/ParoleBoardAnnRpt2010.pdf.2 With the exception of the handful of offenders who receive whole life orders; the validity of such sentences was recently upheld in the European Court of Human Rights in Vinter and Others v the United Kingdom [2012] E.C.H.R. 023.

at liberty on license before the expiry of 12 to 14 years.”3 Furthermore, as McCutcheon and Coffey point out, “the legislative stipulation that prisoners convicted of treason and certain forms of murder should serve a minimum of 40 years is based on the assumption that a system of release operates in favour of life sentence prisoners”.4

Even more paradoxically, the insistence that Ireland does not pursue a policy of preventive detention appears contra-dicted by the statutory requirements of the Criminal Justice (Temporary Release of Prisoners) Act 2003 which, amongst other criteria, compels the Minister to have regard to “the potential threat to the safety and security of members of the public (including the victim of the offence to which the sen-tence of imprisonment being served by the person relates) should the person be released from prison” and “the risk of the person committing an offence” during any period of temporary release (see s.1).The Irish mandatory life sentence is, therefore, something of an enigma: a wholly punitive life sentence from which a prisoner can expect to be released from, consisting of no form of preventive detention despite the seemingly incom-patible statutory requirement for the minister to consider the risk of further offending when deciding on parole.

ConclusionThe approach of the respective courts in Hull and Caffrey was actually more similar than might first appear. Whilst the rhetoric of their approaches appears at odds with each other—with the Court of Appeal emphasising the need to bring correspondence with the sanction imposed in Ireland whilst the Irish Supreme Court declared that the sanction was now governed by Irish law—both courts have effec-tively reached the same conclusion: they have substituted the sentencing State’s parole process for their own. Both Hull and Caffrey will be subject to the administering State’s parole process as though their sentences had been imposed in that jurisdiction.However, had the Irish Supreme Court held in favour of Caf-frey then the outcome would have involved a much more significant change to the penalty imposed in the sentencing State; it is difficult to envisage a more dramatic adaptation to the nature of a life sentence than the removal of its key element—its indeterminacy. If mandatory lifers could enjoy automatic release on return to Ireland then it is conceivable that Irish mandatory lifers in prison in England and Wales might suddenly find the allure of home more tempting rath-er than volunteering to subject themselves to the vagaries of the parole process.5 Equally, an English mandatory lifer transferring home cannot reasonably be entitled to a parole review—when such a review considers only risk—after just seven years simply because they committed the offence in Ireland.Requiring a court in England and Wales to impose a mini-mum term for a life sentence prisoner who has transferred from Ireland is also problematic. Whilst this determination might be made with some confidence when dealing with someone a considerable way into their sentence, it must be considered to be a much more difficult task if someone trans-

3 Prison Victim Liaison Service, May 24, 2005. Available at: http://www.irishprisons.ie/News2005-02.htm.4 P. McCutcheon and G. Coffey, Report into Determination of Life Sentences, submitted to Irish Human Rights Commission (2006), p.5.5 On June 30, 2009 there were 55 Irish nationals serving a mandatory life sentence in England and Wales. HC Hansard, Vol.506, col.583W, February 24, 2010.

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fers back towards the beginning of their sentence. If a court is imposing a 20 year minimum term on an offender for an offence committed two years previously it is, in effect, mak-ing a determination about the administrative release policy which may be pursued by an unknown future Minister 18 years hence. If a future Minister were to introduce a new release policy which led to a reduction in average sentence lengths (one might have to suspend their disbelief for a mo-ment) it would not be of benefit to the transferred prisoner who would be locked into a longer minimum term than they would have served had they not transferred, something pro-hibited by Art.10.2 of the 1983 Convention.In Hull and Caffrey, both courts faced a difficult balanc-ing act between aggravating a sentence and turning trans-fer into a potential “get out of jail free” card. Although the courts have approached their task differently they have both ended up with a pragmatic outcome; either the auto-matic release of a lifer on expiry of their minimum term, or the possible eligibility for parole after seven years for an offence of significant gravity, would have threatened to have undermined the system of transferring sentenced prisoners. Nonetheless, there remains something troubling about Caffrey continuing to serve a sentence on retribu-tive grounds when that period imposed by the sentencing

State has been satisfied and the Court of Appeal’s decision to uphold Hull’s 18 year minimum term on the grounds of bringing correspondence to what he would have served in Ireland ignores the reality that becoming eligible for parole and actually being released on parole are two entirely dif-ferent matters.As the transfer of a sentenced prisoner between Ireland and the UK still requires the consent of both States and the prisoner it is easy to imagine that life sentence pris-oners would not find it possible to transfer back had the courts decided the cases differently. Would the authori-ties in England and Wales consent to the repatriation of a mandatory lifer if they knew that they became eligible for parole after just seven years regardless of the gravity of their offending? Similarly, would the Irish authorities consent to repatriation knowing that a potentially danger-ous offender would have to be released upon the expiry of their minimum term? Neither scenario appears likely and thus if a lifer wishes to transfer between these two jurisdic-tions it would seem that they must accept that, irrespec-tive of the safeguards of Art.10.2 of the 1983 Convention, their release will now be governed by a different, poten-tially disadvantageous, parole process which may result in an extended stay in custody.

CommentThe Corston Review Five Years OnFollowing the self-inflicted deaths of six women at HMP Styal between August 2002 and August 2003, Baroness Corston led a review on women in the criminal justice sys-tem which reported in March 2007.1 To “celebrate achieve-ments since then”, on March 13, 2012, the Justice Minis-ter, Lord McNally, visited the Minerva Project, a women’s community service in Hammersmith, which was set up in 2010. Would that more such projects were flourishing. As the Chief Inspector of Prisons wrote in his forward to a re-cently published inspection of HMP Styal,2

Published in 2007, [the Corston Report] recommended a drastic reduction in the use of women’s imprisonment. It was therefore disappointing to find, and to be told of by the governor, too many cases of women, some of whom were clearly mentally ill, serving very short prison sentences which served little purpose except to further disrupt sometimes already chaotic lives.

In 2010, 61 per cent of women sentenced prisoners were sentenced to six months or less. 28 per cent of women pris-oners had no previous convictions. In a lecture last month,3 the Chief Inspector said that prisons are simply the wrong place for so many of the distressed, damaged or dis-turbed women they hold … I think the treatment and conditions in which a small minority of the most disturbed women are held is – in relation to their needs – simply unacceptable. I think – I hope – we will look back on how we treated these women in years to come, aghast and ashamed…. I have seen a lot of pretty grim things in my working life but what I saw at the Keller Unit [at Styal in 2011] kept me awake at night. The levels of self mutilation and despair were just terrible. Men who are as repeatedly

1 Available at www.justice.gov.uk/publications/docs/corston-report-march-2007.pdf2 www.justice.gov.uk/downloads/publications/hmipris/prison-and-yoi-inspections/styal/styal-2011.pdf3 www.justice.gov.uk/about/hmi-prisons/speeches

violent to othersin prison as these women are to themselves are treated as a national responsibility and managed with resources and attention from the centre. These women, whose disturbance is turned inwards, are left to a local prison to manage as best they can. If nothing else, for pity’s sake, something should be done urgently to try and provide a proper place and care for these lost souls.

He shared a scene from another prison:I went into the visits hall during visits. The first thing that strikes you is that the women were required to wear an orange reflective sash – the sort of thing you might wear on a bike to help you be seen at night. It seemed to me a particularly humiliating requirement for women meeting their children.

I noticed one young woman – a girl really – sitting on her own after every-one else’s visitors had come in. It is always a poignant moment – you hope they are not going to be stood up publicly by their visitor. Then an older woman came in through the visitor’s entrance with a baby in her arms and she sat down next to the younger woman who took the baby with great tenderness.

It was quite a touching scene I thought – grandmother bringing the baby in to be reunited with its mother.

That wasn’t what was happening at all I was told.

In fact, this was a separation visit. The older woman was a social worker bringing the baby in so its mother could say goodbye one last time before it was adopted. All this took place in full view of everyone else until the mother, who quickly became distressed, was moved with the baby and so-cial worker into a side room. How could they have thought that a crowded visits hall was the appropriate place to deal with such a situation? It was normal practice.The number of women in prison this week is 4,175.4 This compares to 1,560 in 1993 and an average of 4,500 in 2006.5 So, Lord McNally: only a small achievement so far?4 www.justice.gov.uk/statistics/prisons-and-probation/prison-population-figures5 See the Corston Report, p.24.

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Editor: Nicola PadfieldCases in Brief: Richard PercivalSentencing cases: Dr David Thomas Q.C.Articles for submission for Archbold Review should be emailed to [email protected] views expressed are those of the authors and not of the editors or publishers.Editorial inquiries: House Editor, Archbold Review.Sweet & Maxwell document delivery service: £9.45 plus VAT per article with an extra £1 per page if faxed. Tel. (01422) 886277Archbold Review is published by Sweet & Maxwell, 100 Avenue Road, London NW3 3PFPart of Thomson Reuters (Professional) UK Limited(Registered in England & Wales, Company No 1679046. Registered Office and address for service: Aldgate House, 33 Aldgate High Street, London EC3N 1DL)For further information on our products and services, visitwww.sweetandmaxwell.co.ukISSN 0961–4249© 2012 Thomson Reuters (Professional) UK LtdSweet & Maxwell ® is a registered trademark of Thomson Reuters (Professional) UK Ltd.Typeset by EMS Print DesignPrinted by St Austell Printing Co

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