4 Court of Appeal Cases 29-30 April 2020 that Criminal Practitioners Should Read
2 of them involving the Vice-President of the Court of Appeal (Criminal Division),Fulford LJ; 2 of them with Burnett LCJ; 2 of them on 29th April, 2 on 30th April; 3 of them about sentencing; all of them of academic interest about precedent and all of them of practical importance to the practitioner.
Privett and others  EWCA Crim 557 involved Fulford LJ on 29th April 2020. It was conjoined appeals against sentence in respect of arranging sexual offences with a child, when no real child existed. This is a typical scenario when “paedophile hunters” or, more rarely, undercover police officers, are contacted online by offenders who think the other party is a real child and, after some grooming behaviour, arrange to meet up. Most courts had preferred a line of authority which held that in such circumstances, the “harm” could only be minimal, since no child existed and so could not suffer. The culpability would typically be high, but the guidelines still put the top of the range at 3 years, so with credit for a guilty plea, the sentence was always in the range that could be suspended. In Privett, the Court of Appeal have definitively stated that the other line should be preferred, so that the sentencing court should look at the harm intended and then apply a reduction to reflect the actual lack of harm. This means that in many such cases, much greater sentences will be imposed. It may well lead to more paedophile hunters cases, since many must have been concerned about the imposition of suspended sentences and offenders, “walking free”. Privett himself had intended to penetrate a 6-year-old girl with fingers, vibrator and his penis with the connivance of her mother (who was actually an undercover officer). His previous convictions showed him to be a danger and a sentence of 64 months with a 24-month extension was upheld.
I doubt that there will be strong arguments from any quarter that such entrenched paedophiles do not present a danger to children and should not be incarcerated for lengthy periods. However, the case does raise 2 issues worth considering. The first is fundamentally about the culpability/harm matrix that is so popular in sentencing guidelines. This reduces any offending to 2 dimensions; culpability relating primarily to the offender and harm to the offence. So in sexual offences, culpability considers factors such as planning, abuse of trust, grooming and previous violence in the relationship; whereas harm considers (inter alia) the actual act, the vulnerability of the victim, and the psychological consequences. This provides a coherent system of analysing crimes from assaults to waste management. In driving offences we can compare a momentary lack of concentration that causes death and a prolonged period of reckless driving that miraculously causes no physical damage. However, the system does not cope well with inchoate offences when there is actually no harm caused (or indeed possible). These include attempting the impossible, conspiracies with undercover officers, and preparing impossible acts of terrorism, as well as arranging or facilitating sexual offences against fictitious children. The guidelines for some offences cover this by considering “harm or intended harm” and Privett is good grounds for saying that should be considered for all offences. However, three problems remain; there are often evidential problems in establishing intent which a judge is ill-placed to determine (consider the number of trials concerning whether grievous bodily harm was caused with or without intent to cause such harm), intent is surely more appropriately considered as part of culpability, and there is little guidance as to the appropriate adjustment to the sentence. In some old cases there was a suggestion that an attempt might merit a sentence of about half a completed offence, but this is not supported by recent cases, or indeed the conjoined appeals in Privett; the words “proportionate” and “commensurate” are used, but no guidance is provided. The sentences in the conjoined appeals are pretty much what one would expect if arrangements were made to facilitate a sexual offence with a real child (but these are already lower than if an actual penetrative offence had occurred).
The second major issue is the value of precedents, which is considered below.
Barton & Booth  EWCA Crim 575 was apparently also determined on 29th April and also involved Fulford LJ, although this time sitting in a different panel numbering 5 in toal, including the Lord Chief Justice and the President of the Queen’s Bench Division. Such an illustrious tribunal was gathered together to consider the question of the value of precedents, which I deal with below. On a practical note, to the surprise of nobody following the civil case of Ivey v Genting Casinos (UK) (trading as Cockfords Club)  UKSC 67, the Court determined that the test for dishonesty is no longer that in R v Ghosh  QB 1053. The prosecution need only prove that the behaviour of the defendant (bearing in mind what the defendant is proven to have known) was dishonest by the standards of an ordinary person, and no longer that the defendant appreciated that his behaviour would be considered dishonest by those standards. In other words, although there is a need to prove what a defendant knew, there is no need to prove that he knew others would consider him dishonest.
Fa Xue  EWCA Crim 587 was determined on the following day by a less distinguished tribunal in the Court of Appeal; Bean LJ sitting with 2 Justices. They were asked to consider the question of greater harm in the context of wounding offences. They had no difficulty in finding that an incident where a defendant had forced entry to an address, engaged in a struggle with his victim, before causing 2 lacerations to the face and 4 to the hip as well as small grazes to the chest and abdomen and then gone on to try to throttle a female was not a “sustained attack”. They did so on the basis of the case of R v Grant Smith  EWCA Crim 1482, which held that 2 blows was not a sustained attack. It is also consistent with the more recent case of Jamal Poku  EWCA Crim 1209 in which 2 blows with 2 different bottles “struck towards the beginning of what was an extended struggle” was not a sustained attack. This case moves the definition even further, “There were repeated blows in this case against Mr Gao, at least four of which resulted in lacerations to his face or left hip. There is no indication in the evidence whether the “triangular type laceration” to the face involved more than one blow. We note that blade cuts were inflicted on two different areas of the body, and that the assault occurred over a period lasting a couple of minutes. There was a struggle at the door which preceded the assault, and that struggle continued as the appellant inflicted blows on Mr Gao before turning to assault Ms Lin. This was a “nasty attack”, as Mr Blackford accepted. But it was not, in our view, a sustained or repeated assault that was so prolonged or persistent as to take it out of the norm for section 18 offences and therefore to constitute greater harm.”
The Court seems to have been slightly more troubled about whether the injuries were serious in the context of the offence. The victim stated “that the injuries caused him continuing pain and anxiety. He had trouble sleeping and was in a very low mood each day. At the time of his statement, two and a half months after the incident, he was still not able to work. The injuries to his face were “very obvious knife-cut scars”, which would cause people who noticed them to look at him in a different way.” The Court determined that they were bound by the case of Duff  EWCA Crim 1404, in which the victim lost half an ear which “led to a permanent, visible, significant cosmetic disability, of which the victim is acutely aware” but the offence was still not serious in the context of grievous bodily harm. There are at least 2 Court of Appeal cases in which facial scarring was held to amount to serious harm in this context – Hakeem Silini  EWCA Crim 2089 and Kevin Joseph Castle  EWCA Crim 101. In the former case, despite it being a single blow, the Court stated, “In our judgment, it is a serious and almost inevitable consequence of a glassing to the face that there will be permanent scarring, as well as psychological harm. Here, there was undoubtedly serious harm and of such a level, given the continuing nature of the harm suffered – as described by the injured party in her victim personal statements – as to place this offending towards the bottom end of the category 1 range.” Surely, in this day and age the members of the Court of Appeal aren’t saying that it depends if the victim is male or female?
Christopher Manning, (Unreported) was also on 30 April 2020 and features the Lord Chief Justice. It is a case which has been widely reported and disseminated to all Crown Court Judges. There is a very clear quote from it: “The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. Judges and magistrates can therefore, and in our judgment should, keep in mind that the impact of a custodial sentence at the moment is likely to be greater during the current emergency than it would otherwise be.” And in the following paragraph, after dealing with the realities of lockdown in prisons, “Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended.” I know from personal experience that such arguments have fallen on deaf ears in the same Court within the current pandemic.
The common factor in all of these cases is that in none of them was the Court of Appeal considering arguments for the first time. In Barton & Booth, they were at agonies to point out that “the ordinary rules of precedent (or stare decisis)” were now modified, so that when all the judges in a Supreme Court decision agree, their obiter dicta can mean that the Court of Appeal are bound to overrule older decisions. The irony that in so declaring, the Court of Appeal was declaring a departure from previous decisions of the Court of Appeal seems to have been lost. In Previtt, they had to decide which of 2 lines of authority from the Court of Appeal was right; they could have justified either, but the lines split in about 2014 and were well known. In Fa Xue, the daily experience of the Court of Appeal in applying the sentencing guidelines is laid bare; there are so many cases that even the judges in the Court are not aware of the decisions being made by their colleagues. Only a small fraction are reported, but with online resources more and more are easily available and the inconsistencies become more and more apparent. This also means that it is easy for even a diligent advocate to cite to a sentencing tribunal authorities which do not present the full picture. For how long Manning remains of value remains to be seen; as of 1 May, 18 prisoners had died and an early release scheme had been halted. I hope that there is such a rapid improvement in the situation that the case is rapidly forgotten.
Cornwall Street Chambers
May 4th 2020
The transcript of Manning  EWCA Crim 592 is now available. Whilst the basic point on the Covid-19’s effect on prison sentences at the present time is well made, the Lord Chief Justice cites with approval the line of authority that Fulford LJ had disparaged the day before. So in Privett (29th April) the Vice President of the Court of Appeal held that, “We are unable to accept the submission that Baker requires that … offences in which there is no real child must always be treated as category 3A offences under the Guideline.” But the following day, Burnett LCJ not only quoted Baker, but criticised Counsel for not mentioning it, “The principal authorities which bear on this question, most unfortunately, were not drawn to the attention of the judge or set out or referred to in the Final Reference. We provided them to counsel in advance of this hearing.” The line of authority preferred the day before (or the case of Privett itself) was not mentioned. So perhaps the practitioner is in no better position after all.