Criminal appeals and delayed justice, over 40 years on
Ordinarily, criminal appeals must be lodged within a relatively short period following trial. Late requests often stand little prospect of success.
This extraordinary case illustrates exceptions to that rule, particularly where modern forensic techniques lead to the clear conclusion that the convicted person is innocent.
Janet Commins
Janet Commins was born on 9 June 1960. One evening in January 1976, she left her home in Flint to meet friends at the local swimming baths. She left a note for her parents to say that she would be back at around 8.30 pm. She saw her friends at the baths and was sighted close to her home in the company of two teenage boys at about 8.10. Some time between 8.15 and 8.45 she called to see a friend who lived a few doors away from her. She was told they were not in. After 9.00 pm, when the baths were closed, Janet’s parents became increasingly concerned and at 11.00 pm they reported her missing. On the following morning children playing on rough ground adjacent to Gwyneth Primary School found Janet’s body concealed in bushes.
Noel Jones
Noel Jones had just turned 17 and was interviewed by the police. Following an admission that he made to his girlfriend, he was charged with murder.
The admissions Jones made were denied during the investigation process, and he did not have the legal protections that are now available to suspects.
Jones pleaded not guilty to murder. However, on the third day of his trial, he changed his plea to one of guilty of manslaughter. That plea was acceptable to the court, and he was sentenced to 12 years imprisonment. Regrettably, however, that was not an accurate indication of guilt.
As there was a possibility of a second offender, the enquiry was left open. In 2017 a second man was convicted of sexual assault and the manslaughter of Janet.
Stephen Hough
The forensic evidence, not available when Noel Jones was charged, disclosed that Jones was not guilty of any crime. There had been a lone attacker, and that person was not Noel Jones. It was a man named Stephen Hough. Hough was linked to the offence when his DNA was taken in connection with an unrelated offence. He was convicted of manslaughter in 2017, and jailed for 12 years.
Court of Appeal
In January 2019 the Court of Appeal quashed Jones’ conviction commenting:
‘… the appellant can leave court wholly exonerated of involvement in this terrible crime.’
‘Our system of criminal justice is, of course, human and errors can be made however strenuous the efforts to ensure that evidence is properly and appropriately collected and placed before the court.
The pressures of being interviewed by the police are clearly real and the protections introduced by the Police and Criminal Evidence Act 1984 have done much to address, to such extent as it is possible, the pressures on those arrested and being interviewed.
In this case, however, it is clear that a serious injustice was done for an innocent man felt constrained to admit a grave criminal offence, not sharing the true position with his own legal team.
Many years have passed since he was released from prison but we hope that the quashing of his conviction and the contents of this judgment start to address the injustice that was done to him.’
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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The Absent Witness; what can you do?
In some instances, it is not convenient for a witness to be present in court to give evidence. For example, they may live or work some distance away from the court, or there may be another good reason.
There are legal provisions that cater for this scenario, which are widely used by the prosecution (notably for police officers). However, it is vital to remember that the defence can take advantage of the legislation in the same way.
What does the law say?
Section 51 of the Criminal Justice Act 2003 states that a witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings.
The provision covers these proceedings:
(a) a summary trial,
(b) an appeal to the Crown Court arising out of such a trial,
(c) a trial on indictment,
(d) an appeal to the criminal division of the Court of Appeal,
(e) the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),
(f) a hearing before a magistrates’ court or the Crown Court which is held after the defendant has entered a plea of guilty, and
(g) a hearing before the Court of Appeal under section 80 of [the Criminal Justice Act 2003].
Can a defendant give evidence via this provision?
Section 51 does not apply to defendants and is considered somewhat out of date in other respects; in Clark [2015] EWCA Crim 2192 the court observed:
There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.
When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.
What factors will the court consider?
A direction may not be given under this section unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link.
In deciding whether to give a direction, the court must consider all the circumstances of the case. Those circumstances include in particular:
(a) the availability of the witness,
(b) the need for the witness to attend in person,
(c) the importance of the witness’s evidence to the proceedings,
(d) the views of the witness,
(e) the suitability of the facilities at the place where the witness would give evidence through a live link,
(f) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court. Advocates in the magistrates’ court should also keep this in mind when making closing submissions.
In some cases, applications for evidence to be given via live link are not appropriate, and we will strenuously object. Where it is in our client’s interest to make such an application, we will ensure that a reasoned and strongly supported application is advanced.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Can I challenge a juror?
It is a common feature of American courtroom drama that a defence attorney moves to remove a juror that they do not like the look of. Many clients wonder whether the same type of challenge can take place in an English courtroom.
The Jury Pool
In some circumstances there can be a challenge to the entire jury pool. This can happen in cases where local emotion is running so high that it would not be appropriate to try the case at the usual crown court centre.
An example of this was the trial of Jon Venables and Robert Thompson. They stood trial for, and were later convicted of, murdering two-year old Jamie Bulger in Merseyside. Their hearing was held not in the usual place, Liverpool Crown Court, but Preston.
In other cases there may be challenges to jurors with a particular characteristic. In the Hillsborough trial that took place earlier in 2019 the 100 potential jurors were handed a questionnaire asking for any reasons why they cannot sit on the jury, including potential links to the disaster, victims, police or criminal justice agencies.
They were also asked whether they or any close family members or friends were fans of Liverpool, Everton, Sheffield Wednesday or Nottingham Forest football clubs.
It is quite usual in trials for potential jurors to be read a list of witnesses in the case. This is to try to ensure no juror with a personal connection is sitting.
There can be no challenge to the make-up of a jury. For example, you cannot challenge because it is all-male, or lacking in racial balance.
Challenging an individual juror
A challenge to an individual juror is referred to as a ‘challenge for cause’ (section 12 Juries Act 1974). Challenge can be made both by prosecution and defence. There is also a prosecution power to ‘stand by’ a juror, but this is not considered in this article.
A challenge can be on the basis that the person is not eligible for jury service or for some other reason. The right to challenge without cause was abolished some years ago.
A challenge should be made before the juror is sworn, although the court has permitted a small degree of latitude (R. v. Harrington, 64 Cr.App.R. 1, CA.)
In practice, a successful challenge for cause is very rare.
Should we be concerned about juror bias?
Many people make observations about jury composition; an example we hear regularly is that a female jury is more likely to acquit in a rape case.
In truth, we do not know whether this and other claims are valid or not. There has been little research into jury decision making.
In our view, minds should be focussed much more on first-class case preparation and advocacy rather than abstract notions of perceived juror bias, particularly when there is not a great deal that can be done about it anyway.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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The Cut-Throat Defence; a good idea or not?
A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant’s case. Sometimes that goes as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.
Such evidence may be given directly by a defendant (or defendants) as a positive aspect of their case. Alternatively, it may be elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another. This is particularly so if issues of bad character arise because of it.
The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far. The outcome will always depend on a multitude of factors.
One trial or two?
Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance – or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519:
‘The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other’s throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.’
While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O’Boyle (1991) 92 Cr App R 202).
Factors to consider
Relevant arguments will centre around:
- Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and
- If the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and
- Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.
At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence. Consideration will have to be given to the consequences, both positive and negative, of doing so.
How we can assist
Criminal litigation is increasingly complex. You must instruct a legal team able to work through all the issues that might arise. You will also need them to provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Drunk on a plane; Airports, Planes and Alcohol
It has been reported in the press that 500 people have been arrested while drunk on a plane at British airports in the last three years.
For many people a holiday begins once cases have been checked in, and what is the harm in that?
It is clear that drunkenness has become an issue. The government has been asked to take steps to address licencing in airports, especially as the airport bars are currently exempt from certain restrictions.
Airlines are also taking action in an attempt to reduce the risk. As an example, on some flights you may be prevented from taking any alcohol on board in hand luggage to assist airline staff in controlling levels of alcohol consumption.
What are the alcohol laws at airports?
Regular licensing laws do not apply at airport bars located on the airside of security.
In November 2018 the government consulted on a proposal that these bars be subject to the same licensing rules as bars outside of airports. As yet, however, no new legislation has been introduced.
What is being done?
The UK airline industry voluntary code of practice adopts a zero-tolerance approach to disruptive behaviour. Signatories to the Code work together to prevent and minimise incidents, the commitments cover the sale and consumption of alcohol. In essence, to mimic the regular licensing laws by, for example, not selling alcohol to intoxicated clients. The Code, however, is a voluntary one.
The ‘One Too Many’ campaign aims to reduce airport drunkenness. 20 airports are using the campaign to alert passengers to the potential consequences of drunken or disruptive behaviour.
What are the potential consequences?
The campaign refers to passengers deemed unfit to fly and denied boarding, prison sentences, fines for causing a deal or causing a mid-air incident requiring a diversion and an airline ban.
What offences could be committed?
Although the figures that have been obtained are for detained persons noted to be intoxicated, the actual offending could vary.
Offences that can be committed include; being drunk on an aircraft, possession of a dangerous article, smoking onboard, endangering the safety of an aircraft and acting in a disruptive manner.
Could I go to prison?
The simple answer is yes. The courts have said that being drunk on an aircraft will usually result in an immediate custodial sentence. This will apply even when someone is of previous good character. To commit an offence of being drunk on an aircraft a person simply has to be drunk. They do not also have to be disruptive. The offence can be dealt with at the Crown Court and carries up to 2 years imprisonment. The same penalty applies to people acting in a disruptive manner on an aircraft or endangering the safety of an aircraft.
Other offences may not result in imprisonment, but financial penalties can be imposed.
Being drunk may result in you being denied boarding, and the subsequent loss of a holiday. So even if you not arrested there may well be a high price to pay.
Does it depend if I am on a UK airline?
The UK has jurisdiction to deal with any offences committed on board any aircraft on the ground, or in the air, over the UK. There are also international conventions that mean offences committed in the skies anywhere are subject to a local jurisdiction. It is complicated and hopefully you will never have to worry about the legal nightmare that will unfold if you are arrested in a foreign jurisdiction.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Identification using gait analysis
What is gait and what does it have to do with identification?
Gait, quite simply, is how a person walks, the movement of limbs. With the ever-increasing use of CCTV, the identification of offenders from footage is also increasing. Sometimes a face cannot clearly be seen, either because it is covered or because the footage simply isn’t clear enough. This is where gait analysis could be used.
What is gait analysis?
Forensic gait analysis is the analysis, comparison and evaluation of features of gait to assist in the investigation of crime.
Who can provide a gait analysis?
Sometimes a civilian or police witness may make an identification based on recognition of the way someone moves and walk. This may be easier, for example, if they have an unusual way of walking or a limp. On other occasions the prosecution may have obtained an expert comparison to use against you. If you want to challenge the evidence, there are experts available who can provide reports.
Can it be used in court?
In 2014 Mohammed Hashi challenged his conviction for murder on the ground that the expert evidence given by a consultant podiatric surgeon was flawed. The CCTV did not permit any facial identification, so the prosecution relied on expert evidence. A comparison was made between the walking gait of the male on the CCTV and the police station footage of Hashi. The expert concluded that there were strong similarities
The defence relied on a different expert. Their view was that the footage was insufficient to be able to make any reliable analysis.
The Court of Appeal referred to gait analysis as a developing science and considered the Home Office Operational Requirements Manual 2009. The Manual suggested how much of the individual should be shown on the screen to be able to discern characteristics. It did not, however, provide an industry standard for the range at which the camera should be set to render gait analysis possible.
The Court of Appeal said that the evidence should have been allowed as the jury were able to consider all the issues.
Elroy Otway
In 2018 Elroy Otway appealed against his conviction for murder objecting to the expert evidence that had been introduced. The evidence was from a podiatrist who studied CCTV footage said to be of the appellant at a garage. This was then compared it to footage of the appellant from the police station.
It was argued that gait analysis was not sufficiently recognised or advanced to merit its use in court. In addition, even if it was, the podiatrist, in this case, could not be considered an expert.
The evidence was circumstantial, and the jury was told to look at the evidence as a whole. In doing so, they were permitted to consider the evidence from the podiatrist of similarities in walking gait.
The Court of Appeal said that although they did not endorse the use of podiatric evidence in general, the trial judge had been entitled to rule the evidence admissible. Each case has to be considered on its own merits.
Expert reports
It would seem from the cases above that the Courts would benefit from some form of guidance or code of practice in respect of gait analysis.
Last year the Forensic Science Regulator consulted on a specific code of practice to cover gait analysis. A draft code was published but no final guidance seems to have been issued.
In the meantime, although the draft guidance is available, it is likely each case will continue to be considered on its own facts.
As with all evolving sciences we keep a keen eye on new developments. Similarly, we will always seek to challenge such evidence. We have seen time and time again that what at one point in time might have appeared to be sound evidence can later be shown as to be fundamentally flawed.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Attorney-General’s Reference and a Prosecution Appeal
The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient. This is known as an Attorney-General’s Reference.
How does the scheme work?
Anyone can ask the Attorney General to consider whether a sentence is unduly lenient. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.
This scheme is essential protection against sentences that are too lenient.
Can it be used for any offence?
There is a list of offences that the Attorney-General’s Reference scheme applies to. It is a relatively extensive list, but the government has announced that further offences are soon to be added to it.
How often are appeals lodged?
The Attorney General does not invite the court to interfere lightly. Even though around 1,000 requests for a review are made each year only a fraction are referred to the court. Typically between 100-150 sentences are increased each year.
In all cases where an appeal is heard, we fight extremely hard to prevent any increase in sentence.
What offences are to be added to the list?
The following offences will be added in the next few months:
- Abuse of position of trust: sexual activity with a child (s.16, Sexual Offences Act 2003),
- Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17, Sexual Offences Act 2003)
- Abuse of position of trust: sexual activity in the presence of a child (s.18, Sexual Offences Act 2003)
- Abuse of position of trust: causing a child to watch a sexual act (s.19, Sexual Offences Act 2003)
- Inciting a child family member to engage in sexual activity (s.26, Sexual Offences Act 2003)
- Sexual activity with a person with a mental disorder impeding choice (s.30, Sexual Offences Act 2003)
- Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31, Sexual Offences Act 2003)
- Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32, Sexual Offences Act 2003)
- Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33, Sexual Offences Act 2003)
- Possession of indecent photograph of a child (Criminal Justice Act 1988, s.160)
- Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
- Harassment: putting people in fear of violence (s.4, Protection from Harassment Act 1997)
- Stalking involving fear of violence or serious alarm or distress (Protection from Harassment Act 1997, s.4A, Protection from Harassment Act 1997)
- Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76, Serious Crime Act 2017).
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Solicitors, Charlatans and the Internet
We interchangeably use many terms to describe legal professionals: lawyers, solicitors, legal advisers, attorneys (an Americanism), a ‘brief’. There are countless others in common usage.
Regrettably, this flexibility with language allows for confusion. When viewing many legal websites, you would be forgiven for thinking that you are dealing with a qualified legal professional. Often, however, in fact nothing could be further from the truth.
The distinction between a ‘real’ solicitor and anyone else is necessary.
A solicitor is a highly qualified legal professional, having study for a number of years and undergone training. Solicitors are also regulated by the Solicitors Regulation Authority (‘SRA’) and admitted by the Law Society.
Crucially, there is insurance in place so that if anything does go wrong, there is full protection, and of course an adherence to the highest ethical standards.
Likewise, when dealing with persons employed and supervised by solicitors, these same protections apply.
Ironically, it is not always the case that unregulated people charge less in fees. So not only is there an inferior service offered, it often comes at a higher price.
Solicitors Act 1974
The title of “solicitor” is protected under section 21 of the Solicitors Act 1974:
“Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence and liable on summary conviction to a fine not exceeding the fourth level on the standard scale.”
Section 20 of the same Act states:
“No unqualified person is to act as a solicitor.”
An offence under section 20 carries up to 2 years imprisonment, and custodial sentences are the norm, underlying the seriousness of the matter.
Some areas of legal advice are ‘reserved activities’ which means that even if a person does not pretend to be a solicitor, they are prohibited from acting in those matters.
In short, the simple way around this confusion is always to check that you are dealing with a real solicitor.
How to check:
You can check whether you are dealing with a real firm by using the SRA website, ensure that any site visited is the actual web address for the firm concerned, you should also check the postal address, email and telephone numbers as the copying of real websites is another problem at the moment.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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