CRIME DEFENCE UPDATE
Case law Round Up
R v Jogee [2016 ] UKSC 8
Joint enterprise liability
Summary
The appellant in Jogee was convicted of murder, together with a codefendant, where the co-defendant had killed the victim with a knife. Criminal
liability was founded on joint enterprise. The jury were directed that the
defendant was guilty of murder if he had participated in the attack, realising
his co-defendant might stab the victim with intent to cause him really serious
harm. It was argued before the Supreme Court that the jury directions on joint
enterprise were wrong and that the case law in this area needed was in need
of review.
Outcome
The appeals were allowed. The Supreme Court held that the case law had
taken a wrong turn when it had equated foresight with intent to assist and it
therefore set aside the rule equating the two. In order to find a defendant
guilty of accessory liability there must be proof of a conduct element and a
mental element. The mental element required is an intention to assist or
encourage commission of the crime. If the crime required a particular intent,
the accessory had to intend to assist or encourage the principal to act with
such intent.
R. v Kahar & Others [2016] EWCA Crim 568
Sentencing guidelines for terrorism offences
Summary
In the absence of sentencing guidelines for terrorism offences, the court gave
guidance for sentences imposed under Terrorism Act 2006 s.5 (preparation of
terrorist acts).
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Outcome
The court noted that the range of conduct covered by s.5 was broad and
should be divided into levels of criminality according to culpability and harm.
The court outlined six levels and stated that sentencing judges should decide
where among the levels the offender properly fell. These levels range from:


Level 1 - attempted multiple murder or conspiracy to commit multiple
murder - where a sentence of life with minimum term of 30 to 40 years
or more would be appropriate, to
Level 6 – where an offender never set out to join a terrorist
organisation or had a minor role in relation to intended acts (amongst
other offending) - where a sentence in the range of 21 months to five
years would be appropriate.
R. v Stewart (Garfield Ricardo) [2016] EWCA Crim 447
Admissibility of bad character evidence relating to gangs
Summary
The appellant, a young offender, appealed against his conviction for
possession of a firearm with intent to endanger life. The case against the
appellant was that the gun was to be used in connection with a gang dispute.
The prosecution relied on evidence of: the appellant’s involvement in a gang;
the fact he had been the victim of gang violence, and gun-related images
seized from his phone. The appellant’s case was he was not a gang member,
simply a courier. The recorder allowed this evidence under the Criminal
Justice Act 2003 s.98 on the ground that it went to the issue of intent. The
recorder also stated that the evidence would also have been admissible as
bad character evidence under s.101(1)(d). The appellant argued that the
recorder had failed to adequately direct the jury as to the weight to be
attached to this evidence.
Outcome
Appeal dismissed. The jury were correctly directed that the gang evidence
was evidence from which it was entitled to infer intent. The prosecution had to
prove the appellant intended to use the gun, with intent to endanger life. The
gang evidence went directly to intention and motive. Motive could be inferred
from the appellant being the victim of an attack and the gun images on his
phone were admissible to show as interest in guns beyond that of a courier.
R. v Bondzie (Marco) [2016] EWCA Crim 552
Guidance on how to approach the prevalence of drug dealing in sentencing
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Summary
The appellant was sentenced to four years and 10 months’ custody after
pleading guilty to three counts of supplying Class A drugs and one count of
being concerned in the supply of a Class A drug. At sentencing the statement
of the senior investigating officer was read, which addressed the nature and
effect of organised drug offences in the local area. In passing sentence the
judge commented on the seriousness of the problem. The appellant argued
that the judge wrongly increased his sentence due to the prevalence of such
offending.
Outcome
The appeal was allowed. The Sentencing Council Guidelines already took into
account the collective social harm caused by drug offences, which included
the community impact. Sentencing should normally involve a straightforward
application of the guidelines and judges should not ordinarily increase a
sentence due to the prevalence of offending. If the prosecution wished to
invite the court to consider prevalence, that intention must be expressly stated
and evidenced by relevant materials. If a judge is contemplating prevalence
as a factor, this should clearly be identified as a matter to be addressed in
submissions. The courts should be hesitant to reflect prevalence in
sentencing and should only do so where the evidence presented
demonstrates a level of harm which clearly exceeds the well understood
consequences of drug dealing by a significant margin. A judge is only entitled
to treat prevalence as an aggravating factor if he was satisfied that;
(a)
(b)
(c)
the level of harm caused in a particular locality was significantly
higher than elsewhere;
that the circumstances could properly be described as exceptional;
and
that it was just and proportionate to increase a sentence for such a
factor.
R. v Akhtar (Siddiqua) [2016] EWCA Crim 390
Lack of special measures for the defendant resulting in the termination of
proceedings
Summary
The appellant was charged with racially aggravated intentional harassment
and elected a Crown Court trial. Expert reports showed she has a history of
mental illness in the form of generalised anxiety disorder, panic disorder and
recurrent depressive disorder. She was deemed fit to plead but not fit to
attend court. Directions were made that at trial the appellant should have an
intermediary and attend court in a room separate from the main courtroom.
On the day of trial the appropriate video-link arrangements had not been
made. The defence applied for a stay; prosecution applied to adjourn. The
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judge held that the procedures necessary for a fair trial couldn’t be put in
place on the day and that the case had gone on far too long; he therefore
refused the adjournment and stayed the proceedings. The prosecution
appealed.
Outcome
It was held that the judge was entitled to stay proceedings where, in order for
there to be a fair trial the defendant required special measures, but the court
had failed to put the measures in place. The judge was entitled to have regard
to the fact that this was not an important matter of its type and the mental
health of the defendant. He was entitled to conclude that it would not be fair
for there to be an adjournment to some future date, considering the
circumstances.
R. v Brown (Jesse Jones) [2016] EWCA Crim 523
Jury notes indicating deadlock
Summary
The appellant was convicted of robbery following a retrial. After the jury had
retired to consider their verdict, they sent a note to the judge that suggested a
deadlock. The note was discussed with counsel and the jury were recalled
and directed to continue deliberations and to try to come to a unanimous or
majority verdict. The jury were not asked of the chance of them reaching a
unanimous verdict. A unanimous guilty verdict was returned soon after. The
appellant argued that there was a risk the jury were pressured into coming to
a verdict and the judges response to the note was insufficient.
Outcome
The appeal was dismissed. There is a need ensure that a jury is free to
deliberate and no juror is put under pressure to reach a verdict. When a note
is received indicating deadlock the judge has a discretion on how to deal with
it. There is no principle stating that in such circumstances the jury should be
asked what the chances are of them reaching a verdict or if further
deliberation would be a waste of time.
R. v Clancy (Benjamin Dudley) [2016] EWCA Crim 471
Consecutive sentences
Summary
The appellant appealed against his sentence of 32-months' imprisonment.
This sentence was ordered to run consecutively to an extended sentence of
five years, which had been imposed for a separate offence.
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Outcome
The Criminal Justice Act 2003 s.265(1) provides that a judge, when imposing
a prison sentence, must not direct that a new sentence should commence on
the expiration of any other prison sentence from which an offender had been
released on licence under the 2003 Act or the Criminal Justice Act 1991. The
judge in this case was wrong to order the 32-month sentence to run
consecutively to the extended sentence.
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