R. (on the application of Purvis) v DPP  2 Cr. App. R. 34
For the purposes of a right of appeal, a High Court decision on an application for judicial review of a prosecutor's decision whether to prosecute a person was a decision in a criminal cause or matter. A decision of the Court of Appeal Civil Division which should arguably have been made by the Supreme Court stood unless declared void.
Human Trafficking Victims
R v GS  EWCA Crim 1824
The change in law concerning the non-prosecution and non-punishment of human trafficking victims from 2007 to 2018 renders an application for leave to appeal against a 2007 conviction a change in law case and therefore the substantial injustice test applies.
Drug mules commit serious offences. Notwithstanding evidence of duress involving threats of serious injury or death to GS and her young son, if she refused to smuggle drugs, she had not been under such a level of compulsion that her criminality or culpability was reduced to such an extent that it was not in the public interest for her to be prosecuted. It had not been an abuse of process to prosecute GS.
R v Biglary-Ghalilou (24 October 2018; Gross LJ; Spencer J and HHJ Katz QC)
Under s.31 of the Immigration and Asylum Act 1999 (which creates defences based on Article 31(1) of the Refugee Convention) where the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under s.31, that person is to be taken not to be a refugee unless he shows that he is (i.e. the legal burden of proof shifts from the Prosecution to the Defence). Where a defendant is later granted asylum on the basis of sur place grounds (i.e. grounds which arose after the date of the offence, when s/he was in the UK), the burden of proof still lies with the defendant and not the prosecution.
Agreed And Disputed Issues
R v Valiati and KM (1 November 2018; Sir Brian Leveson PQBD and McGowan J)
The Court emphasised that it is mandatory for “Immediately prior to the commencement of a trial, the legal adviser must summarise for the court the agreed and disputed issues, together with the way in which the parties propose to present their cases. If this is done by way of pre-court briefing, it should be confirmed in court or agreed with the parties.”
Where the contents of the PET form (in particular, section 8 of the form (issues, as opposed to section 9, agreed facts)) become relevant to an issue in the case: “If circumstances arise in which it is sought to argue that the information provided on a PET form should have evidential significance, an appropriate application must be made and the hurdles both in relation to hearsay and s. 78 of PACE satisfied.”
I.e. it may be appropriate to apply to adduce the admission of an agent acting on behalf of a defendant as hearsay under the sixth rule preserved by s. 118(1) of the Criminal Justice Act 2003.
Burden Of Proof Resolved
28 March 2018
Ben Douglas-Jones QC appeared for the Crown in MK v R; Gega v R  EWCA Crim 667, a crucially important case which has resolved the burden of proof where a defence is raised under s45 Modern Slavery Act 2015.
Definitive guidance on the approach to sentencing defendants with mental illnesses
27 March 2018
Ben Douglas-Jones QC appeared for the Crown in R v Edwards  EWCA Crim 595 in which the Vice President of the Court of Appeal handed down definitive guidance on the approach to sentencing defendants with mental illnesses.
Important Divisional Court Case
20 March 2018
Ben Douglas-Jones QC appeared for the DPP in an important Divisional Court case before the President of the QBD and Kerr J in which the best evidence rule, memory refreshing, status of Forms MGDDA in Drink and Drug Driving cases and the status of documents following the advent of digital working.
Trafficking cases – defence disclosure and anonymization
23 November 2017
Ben appeared in R v L and R v N before the Court of Appeal in which the Vice President of the CACD endorsed his suggestions concerning what material should be given by appellants in human rights based appeals. The CACD also set out how to approach anonymising appellants in cases involving victims of human trafficking.
Conviction upheld in MTIC fraud
Ben, leading James Marsland, appeared for the Specialist Fraud Division before the Court of Appeal R v Mumtaz  EWCA Crim 1843 (serious and complex fraud). In a judgment given by Hickinbottom LJ the Court agreed with Ben that there was no prejudice in an amendment to the indictment which had secured the conviction of the Appellant.
Copycat website alleged fraudster acquitted
Operation Cleo 2.
Stephen Oliver was represented by Ben, led by Graham Trembath QC. He faced allegations of creating and operating copycat government websites to defraud the public. The case was complex and substantial. After a trial the defendants were acquitted of copycat website fraud and the prosecution abandoned further proceedings concerning consumer protection offences. A second case has been discontinued.
Private Hire Licence – landmark decision concerning suspension
13 July 2017
Ben appeared for P in Reigate and Banstead BC v Pawlowski  EWHC 1764 (Admin). It has become a leading case on a council’s power to suspend a private hire licence.
Singh v Cardiff Justices established that it was unlawful for a local authority to use suspension as a holding operation pending further investigation. Accordingly, a local authority could not lawfully suspend by reason of a criminal charge on a "wait and see" basis. If it suspended the licence, it had to do so by way of a substantive decision on the fitness of the driver to hold the licence. Once it was seen that suspension was not a holding operation but a substantive decision, it became apparent that suspension would rarely be the appropriate course where a driver was charged with a matter for which, if convicted, he would be subject to revocation of his licence. If such a charge merited action, and if the action was not by way of an interim measure pending determination of the facts at criminal trial, revocation would generally be the appropriate course. To suspend a licence because an allegation was made and then revoke it because the allegation was proved was contrary to the decision in Singh . That was not to say that, once a decision had been taken to suspend upon notification of a charge, no subsequent decision to revoke could ever be taken. It was possible to envisage a case where facts thereafter emerging from the criminal trial put a different complexion on the matter. The initial suspension would not necessarily rule out a subsequent revocation in such circumstances, having regard in particular to the fact that the local authority's powers were conferred for purposes of public protection. Any decision to revoke would be subject to a statutory right of appeal. Further, if it should later transpire, for example by reason of acquittal at trial, that the former licence-holder was indeed a fit and proper person to hold a licence, provision could be made for expeditious re-licensing,
Double jeopardy – the significance of void decisions
14 June 2017
The Court of Appeal agreed with Ben that there was no double jeopardy in a conviction and sentence for escape in the Crown Court in respect of a prisoner who had been charged with and sentenced for a prison disciplinary offence of escape; R v Robinson  EWCA Crim 936 (double jeopardy). The prison sentence was to be treated as void.
Leave to appeal out of time
28 March 2017
Ben appeared for the Crown in R v PK  EWCA Crim 486;  Crim. L.R. 716. The President of the QBD held that the test for granting leave to appeal out of time where a case followed a guilty plea and was not a change in law case was the Mateta / Boal test.
Channel Tunnel security breach convictions upheld by Court of Appeal
4 November 2016
R v Miharessari  EWCA Crim 1733 (asylum seekers breaching Channel Tunnel security). Ben represented the Crown and submitted that (1) there had been no abuse of process in charging the appellants with a 19 Century offence which had the effect of depriving them of the refugee defence under s.31 of the Immigration and Asylum Act 1999; and (2) the offence of obstructing an engine was made out when the Channel Tunnel rails were powered down as a result of asylum seekers penetrating tunnel security.
Bad character and doli incapax
20 May 2016
R v M  4 W.L.R. 146  2 Cr. App. R. 20 (doli incapax)
Ben appeared in an important case concerning bad character in cases where doli incapax applied. It was held that the presumption of incapacity of committing a crime could only be rebutted by the prosecution by clear positive evidence, not consisting merely of evidence of the acts amounting to the offence itself, but that the appellant knew that his act was seriously wrong as distinct from mere naughtiness or childish mischief.
16 March 2016
R v Boateng  EWCA Crim 57;  4 W.L.R. 70;  2 Cr. App. R. 5;  Crim. L.R. 495. Ben appeared for the Crown in this case where a number of important aspects of charging immigration fraud offences was considered. In particular, the Court considered the case of Kaile, where it had been said, on one view, that a defendant could not be guilty of smuggling a child into the UK because a child could not form the guilty mind for the underlying offence. The Court found that the underlying mischief could be s.3 of the Immigration Act 1971, which required no mens rea.
The role of the CCRC
26 February 2016
R v YY  EWCA Crim 18;  1 Cr. App. R. 28 (role of the CCRC in appeals concerning refugees). Ben appeared in this case, where the President of the QBD said that the CCRC should not normally refer refugee defence cases to the CACD where there had not been a previous unsuccessful appeal. The president suggested that a “triage system” should be introduced.
Free speech and note taking in court
8 February 2016
R (Ewing) v Cardiff Crown Court  EWHC 183 (Admin);  4 W.L.R. 21;  1 Cr. App. R. 32; (2016) 180 J.P. 153;  E.M.L.R. 18;  Inquest L.R. 32;  A.C.D. 44 Ben appeared in this case which considered the rights of people to take notes in the Crown Court, contempt of court and vexatious litigants acting as an amanuensis.
The Right To Free Speech
Ben Douglas-Jones led by John McGuinness QC represented the DPP in an important case concerning the right to free speech.
In DPP v Kingsley Smith, an appeal by way of case stated, the Administrative Court (Divisional List) found that four posts on Google+ were not merely an expression of the right to free speech: they were “menacing” or “grossly offensive”.
Smith was an Islamic revert who had made comments supportive of ISIS. He posted messages on You Tube clips
“If I saw Paul Golding [leader of the far right wing organisation “Britain First”] I would slice his throat.”
“David Cameron I'm gonna put an lED on your doorstep.”
“One day I will kill these kufr !!!! Allahu akbar".
“Allah Akbar kill the kufr!!!” (translated as “God is great, kill the disbeliever!”).
The Court found that the case was very different from Chambers, a case in which a joke in bad taste about blowing up an airport had been made. The messages were clearly not a joke:
The District Judge had first to consider whether the sole element of the actus reus that was in dispute on each charge, namely whether the relevant message was of the proscribed character, was proved. To answer that he had to ask himself whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message was grossly offensive to those to whom it related or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it.
The District Judge did not do that in circumstances where there was a clear case that the messages were grossly offensive.
Landmark Special Court
Ben Douglas-Jones appeared for the Crown in a landmark special court (Lord Thomas CJ, Hallett VP and Goss J) hearing of 6 conjoined appeals, led by John McGuinness QC, in the case of Joseph et al.  EWCA Crim 36. It concerned victims of human trafficking charged with offences. It addressed:
Definition Of Human Trafficking
Ben Douglas-Jones appeared in six cases in a two-day special court hearing before The Lord Chief Justice, Vice President of the Court of Appeal and Goss J in an appeal which will determine the scope of the definition of human trafficking, examine the role of the competent authority in the national referral mechanism and consider whether drugs mules carrying significant quantities of Class A drugs across international borders should be prosecuted in the public interest when they are victims of trafficking.
Life Sentence Appeal
Ben Douglas-Jones appeared in the appeal of a life sentence (R v Hoppe) where Gross LJ giving judgment said that when looking at whether a hospital order should have been imposed when an appellant was originally sentenced, while the Court had to look at whether the Court erred in passing the life sentence (Vowles) it would be artificial not to take into account the punishment that an appellant had undergone in the intervening years.
Asylum Defence Cases
Ben Douglas-Jones has appeared in two Court of Appeal cases (Z, 7 July 2016 and Chikho, 13 October 2016) which considered the status of Turkey as a stopover point for refugees seeking to rely on the asylum seeker’s defence to criminal offences. The 1951 Refugee Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1951 within Europe. A 1967 Protocol removed the geographic and temporal limits of the Convention. Turkey however maintained the geographical limitation. Thus no Convention protection was historically afforded to refugees from outside Europe seeking asylum in Turkey. A stopover in Turkey could (historically) not prevent a refugee from relying on the refugee defence. In Chikho the importance of advice given at the Crown Court was highlighted.
R. v D  EWCA Crim 454;  4 W.L.R. 122;  2 Cr. App. R. 18;  Crim. L.R. 569
Ben appeared in an important appeal concerning defective indictments and the substitution of offences on appeal.
R. (on the application of Ram) v DPP  EWHC 1426 (Admin)
Ben appeared in a significant case in which guidance was given on the approach to be adopted in cases of judicial review of the Victims' Right to Review Scheme.
R. (on the application of S) v Croydon Magistrates' Court
Ben appeared for the DPP in an appeal concerning a district judge's refusal to adjourn a trial days before it was listed. The decision was Wednesbury unreasonable where the decision was made in the absence of relevant evidence. A renewed application for an adjournment on the morning of the trial with the benefit of the missing evidence should have been dealt with as though the magistrates were in the judge's position days earlier, and without taking the presence of witnesses into account.
Asylum Defence) R. v Zaredar (Arash)
Ben Douglas-Jones appeared in an appeal which led to Gross LJ stating that the substance of the judgment should be incorporated into training for solicitors.
Galvin v Revenue and Customs Commissioners  UKFTT 577 (TC);  S.T.I. 2560 Ben Douglas-Jones appeared for the applicant in an application to reinstate an appeal against the imposition of civil evasion penalties following the strike out of an appeal in the FTT Tax Chamber. The case concerned the application of Art 6 of the ECHR in tax cases where evasion penalties were imposed.
Mortgage fraud and character of expert witnesses
R v Nicholas Jones et al  EWCA Crim 1762 Ben, led by Patrick Harrington QC, successfully submitted that convictions should be upheld in a multi-million pound mortgage fraud. The principal ground of appeal against conviction was that the Judge erred in refusing to admit adverse comment concerning the judgment of an expert witness. The Court found that the issue was not one of bad character. It was one of relevance. The Crown had been right to oppose its introduction in the Crown Court and the Judge had been right to refuse to admit the evidence.
Extradition, Contempt and Restraint
LANDMARK SUPREME COURT VICTORY FOR THE SERIOUS FRAUD OFFICE
Serious Fraud Office V O'Brien is a massive, landmark legal victory for the Serious Fraud Office. Ben, together with Edward Jenkins QC represented the SFO.
On 26th March 2014 the Supreme Court ruled that the SFO is right that disobedience of a pre-trial criminal restraint order is a civil contempt of court. It is not a criminal offence. Furthermore, the Supreme Court found that civil contempt is not extraditable- even though it attracts a 2 year sentence.
O'Brien was in Chicago. He was found by the Old Bailey to be in contempt of court. He was extradited to the UK for a boiler room fraud. He was not extradited for the contempt. The Common Serjeant sent O'Brien to prison for 15 months for the contempt.
O'Brien appealed. He argued that the contempt was a criminal offence. He said he should not have been dealt with for that offence: he had not been extradited for it.
The Court of Appeal disagreed. So did the Supreme Court. They both agreed with the SFO.
Had the SFO lost the case, the implications would have been massive. Restraint orders are enforceable in the same way as freezing, search and disclosure orders. Had the SFO lost the case, parties to civil, commercial claims would have had to seek the extradition of other parties who refused to comply with court orders.
Following L and others  2 Cr. App. R. 23 the Special Court judgment of the Court of Appeal (Lord Judge, Lord Justice Moses and Mrs Justice Thirlwall) in which Ben appeared for the Crown, he appeared for the Crown in R v S 9th September 2014. In S the appellant was a victim of human trafficking. She had been deprived of her childhood and early adulthood by being held in domestic servitude and by being deprived of an education. There was no fault on any party for not identifying the defendant as a victim of trafficking when she was prosecuted in 2009. She had entered an unequivocal guilty plea. Ben appeared in O  EWCA Crim 2226 [O 2011] and R v LZ  EWCA Crim 1867. He suggested in those cases that the Court of Appeal should allow appeals in respect of victims of sexual servitude notwithstanding that there had been no fault in failing to identify them as trafficking victims and where there were unequivocal guilty pleas. The Court of Appeal agreed. In a departure from the fault based appeals following N and Le  1 Cr. App. R. 35;  Crim. L.R. 958 (in which Ben Douglas-Jones also appeared for the Crown), for the first time after the judgment in L and others the Court of Appeal has, in S, endorsed the O and LZ line of authority.
Ben appeared for the Crown in C and others  EWCA Crim 1483 in which the Crown was held right to concede appeals where victims of trafficking had been prosecuted. There criminality had been extinguished by their trafficking circumstances.
5 Conjoined appeals concerning human trafficking to be heard by a Special Court presided over by the Lord Chief Justice in May 2013.
R v L and others  EWCA Crim 991;  2 Cr. App. R. 23. Ben appeared in this Special Court sitting of the Court of Appeal presided over by the Lord Chief Justice, led by Tim Owen QC and instructed by the Crown (CPS Appeals Unit) in which the Court set out guidance for the prosecution of victims of human trafficking.
Regina v N and Le  EWCA Crim 189;  3 W.L.R. 1159;  1 Cr. App. R. 35;  Crim. L.R. 958; Times, April 10, 2012. Ben, led by Tim Owen QC and instructed by Shuba Karan and Steve Alvarez of the CPS Appeals Unit, appeared for the Respondent in these conjoined appeals, heard by the Lord Chief Justice, Lord Judge, sitting with Royce and Globe JJ. Convictions were upheld and the Court set out "a series of considerations of broad general effect" concerning Article 26 of the Human Trafficking Convention 2005.
R v Dastjerti EWCA Crim 365 (cited where a trafficked victim has pleaded guilty on bad advice).
R v LZ EWCA Crim 1867 (a trafficked adult subjected to repeated rape).
R v O EWCA Crim 2226 (victim trafficked with coercion from “JuJu magic”, exposed to sexual slavery).Ben's legal argument on behalf of the Crown was accepted by the Court of Appeal. Ben argued that O's appeal against conviction (her guilty plea) should succeed on Human Rights grounds: she was a credible victim of child trafficking, subjected to "JuJu Magic" rituals and forced into sexual exploitation.
Asylum Defence Cases
Mateta and others  EWCA Crim 1372: Ben recently appeared for the Crown (CPS Appeals Unit) in this Special Court sitting of the Court of Appeal in which Lord Justice Leveson set out to “kill [the issue of lawyers failing to identify clients with asylum defences in lower courts] stone dead”.
R v A  [citation pending] (refugee escaping persecution on grounds of sexuality).
R v Sadighpour  EWCA Crim 2669;  1 Cr. App. R. 20; Archbold News February 2013 (leading case concerning the application of burden and standard of proof in refugee-defence cases).
R v C  EWCA Crim 2911 (the application of Articke 31 of the Geneva Convention relating to the Status of Refugees in the context of s.31 of the Immigration and Asylum Act 1999). Ben successfully argued on behalf of the Crown that Article 31 of the Geneva Convention was not engaged in this case in such a way as to make a conviction for possessing false i/d documents unsafe.
Human Right to Family Life and Freedom of the Press
R (on the Application of A) v Lowestoft Magistrates’ Court  EWHC 659 (Admin); (2013) 177 J.P. 377;  E.M.L.R. 20;  Crim. L.R. 763;  A.C.D. 72. Ben appeared for the DPP in this case in which he persuaded the Court that it should not allow a restriction or super-injunction on the publication of the details of a Councillor found drunk in charge of a child.
Regina v Cleobury  EWCA Crim 17; 2012 WL 14771. Counsel for the Appellant in appeal founded upon fresh DNA evidence.
R v Johnson  EWCA Crim 2011; 2008 WL 3819578. Ben Douglas-Jones appeared on behalf of the appellant in an appeal concerning the sentence for a significant NHS dental fraud.
Regina v Guest  EWCA Crim 1762; 2011 WL 2649506. Crown Counsel for CPS Appeals Unit in appeal against sentence (IPP) for second child pornography offence in the notorious case involving teenager branded by the Telegraph as having the "biggest porn library in Britain".
Regina v Birchwood  EWCA Crim 431; 2011 WL 674925. Appellant's Counsel led by Edward Jenkins QC in successful appeal against a 32-year tariff for financially motivated murder.
Rape / Extradition
Regina v Thomas  EWCA Crim 2116; 2011 WL 4084962. Appellant's Counsel for the first person to be extradited from Peru. T was tried in his absence whilst remanded in custody pending extradition.
Regina v Stratford and Stirzaker  EWCA Crim 888; 2011 WL 1130163. Crown Counsel in appeal against sentence in mortgage fraud when Judge had erred in approach.
Logistika v UK Border Agency  UKFTT 355 (TC) 2012 WL 2191332. Exercise of discretion by UK Border Agency when seizing goods used for smuggling.
Legitimate Expectation Deriving From Prosecutor’s Observations On Sentence
AG's Reference 76 of 2009, Regina v Barkevicius  EWCA Crim 2613; 2009 WL 4248592. Counsel for Defendant in Attorney General's Reference concerning death by careless driving whilst under the influence of alcohol. Sentence upheld on the ground of legitimate expectation- Prosecution indicated that it would not proceed by way of Attorney General's Reference.
Sentence: Imprisonment for Public Protection - comment from the Court of Appeal to prevent adverse effect of sentencing remarks on release following IPP
Regina v Hutchison  EWCA Crim 1379 Counsel for Applicant in leading case where a judge errs in sentencing and adversely affects IPP release date.
Sentence: drug dealing not encompassed by the indictment
Regina v O  EWCA Crim 2064; 2008 WL 3996445. Ben successfully persuaded the Court of Appeal to reduce the sentence of a former professional boxing for the supply of drugs on the ground that the Judge had erroneously taken into account the suggestion of previous dealing.
Fraud: co-defendants’ interviews; direction concerning axe to grind
Regina v R  EWCA Crim 122: Counsel for Appellant in successful appeal against conviction and subsequent retrial of the first accountant to be charged with POCA offences; £45m confiscation proceedings.
Fraud: sentence in £10.3 million case
Regina v Price  EWCA Crim 972;  1 Cr. App. R. (S.) 6: Counsel for Appellant - the Halifax 'IOU' fraudster - in successful appeal against sentence in £10.3m fraud.
R v Atkins  EWCA Crim 1377 Ben appeared for the Crown in the Court of Appeal (but not the Crown Court) in this case where the conviction for a serious assault on the vagina of a child leading to a 17-year prison sentence was upheld. The judge was criticised unfairly by the Appellant for behaving like a gifted Silk to redress the forensic balance where in-house Crown Csl inter alia failed to cross-examine on key matters.
Ben appeared for the Crown in C and others  EWCA Crim 1483 in which the Crown was held right to concede appeals where victims of trafficking had been prosecuted. There criminality had been extinguished by their trafficking circumstances.Regina v Lashley  EWCA Crim 2016; 2005 WL 1942168;  Crim LR 83; Archbold 20094-268, 7-81; (2005) The Times, 28 September Crown Counsel in leading case concerning judge's conduct.
Regina v Bryant  EWCA Crim 2079; 2005 WL 1942167; Cross and Tapper on Evidence, 11th ed., p305; Criminal Procedure, Sprack, 11th ed., 9.23;  9 Archbold News 3; Archbold 2009 7-81 Crown Counsel in leading case concerning judge's conduct.
Regina v Davies  EWCA Crim 1126, 2004 WL 1060622; LTL 23/4/2004: Crown Counsel in leading case concerning inconsistent verdicts as between defendants.
Regina v Blows (2004 CA): Crown Counsel in case concerning alcoholic amnesia and inconsistent verdicts.
Voluntary Bills of Indictment
Regina v Cadette  EWHC 2661 (QBD) (Richards J): Counsel for Defendant in leading case concerning the preferment of a voluntary bill of indictment in section 51 Crime and Disorder Act 1998 cases.