I was instructed on behalf of the Claimant in the recent first-instance judgment of Khan v Allana (2025), a case that vividly illustrates how traditional property principles intersect with the realities of modern fraud litigation. The dispute concerned ownership of a valuable Audemars Piguet watch and required the Court to determine whether a purchaser acting in good faith could acquire better title than an original owner alleging loss. Having appeared in the case, I was reminded how often these issues arise at the boundary between civil and criminal law a space in which I regularly practise, navigating both the commercial and criminal arenas where allegations of fraud, deceit, and financial misconduct converge. The analytical tools are similar: proof of ownership in the civil court and proof of criminal provenance in the Crown Court both demand precision about evidence, motive, and credibility. This article explores that shared territory by examining the intersection between nemo dat quod non habet the principle that no one can give what they do not have and the Proceeds of Crime Act 2002 (PoCA). The Court of Appeal recently considered the provisions of PoCA in The King (on the application of World Uyghur Congress) v National Crime Agency [2024] EWCA Civ 715, and applied the same in determining when tainted property may, or may not, be “cleansed” through acquisition in good faith. Under section 21 of the Sale of Goods Act 1979, a person cannot transfer better title than they possess. The exceptions, voidable title, estoppel, and sale by a person in possession are all premised on the good faith of an innocent purchaser. In Khan v Allana, that doctrine was decisive: the defendant’s account of loss was contradictory, and no theft was proved. The watch was, at most, subject to voidable title, and the claimant having purchased in good faith and for value took good title. The judge’s findings underline that the burden rests on the party asserting loss to establish factual dispossession. The Court of Appeal in World Uyghur Congress v NCA noted that the definition of “criminal property” in the Proceeds of Crime Act 2002 (PoCA) “is not only very broadly expressed, but it is a fluid one which depends on the state of mind of the alleged offender”. The court recognised, the same asset can be clean in one person’s hands and criminal in another’s, depending on their state of mind. Critically, payment of adequate consideration the statutory defence under section 329(2)(c) does not “cleanse” criminal property. The taint only lifts if section 308 applies: where property has been acquired for value, in good faith, and without notice of the underlying criminality. This echoes the nemo dat logic: a bona fide purchaser for value can break the chain of taint. The question of title, in both the criminal and civil jurisdiction are built on the same basic idea that once property becomes tainted, it can only be made “clean” again if it passes to someone who acts honestly, pays proper value, and has no reason to suspect anything is wrong. In civil law, the source of taint lies in a defect of title where someone sells what they do not own whereas in criminal law under POCA, the taint arises because the property represents the proceeds of crime. Each system provides its own route to purification. In the civil sphere, title may pass to a good-faith purchaser for value without notice, unless there is evidence that the original owner did not voluntarily part with the property, since involuntary loss or theft prevents any title from passing at all. In the criminal sphere, section 308 of POCA removes the criminal character of property acquired for value, in good faith, and without knowledge or suspicion of its illicit origin. The burden of proof differs, civilly it rests on the party alleging defective title; criminally it lies on the prosecution to prove knowledge or suspicion but both regimes treat state of mind as decisive. In each, the law distinguishes between the innocent acquirer who deals honestly and the wilfully blind actor who ignores obvious red flags. Title and criminal purity are thus preserved by the same moral and evidential principle: good faith and absence of notice cleanse what would otherwise remain contaminated. The symmetry between nemo dat and the statutory scheme of POCA has practical importance that extends well beyond theoretical comparison. In civil fraud litigation, tracing and restitution hinge on whether title ever validly passed; if the original transferor’s title was void or voidable, the downstream recipient may acquire no better title, and recovery follows. In criminal confiscation, by contrast, the central question is whether the property retains its criminal character if it remains the proceeds of crime, it is liable to recovery regardless of subsequent transfers. Yet the dividing line in both systems is the same: good faith. Each regime penalises wilful blindness. A purchaser who ignores suspicious circumstances risks losing the protection of section 23 of the Sale of Goods Act, just as one who acquires property under section 308 of POCA with suspicion or awareness of criminal provenance cannot rely on statutory immunity. The parallel demands of honesty and inquiry mean that both civil and criminal fraud cases ultimately turn on an evaluation of state of mind, inference, and evidential discipline. This convergence explains why modern commercial fraud advocacy requires practitioners to operate fluently across both jurisdictions navigating the interplay between title, suspicion, and the differing burdens of proof that govern the civil and criminal response to tainted assets. For practitioners, the message is clear adequate consideration alone is not enough; due diligence and absence of suspicion remain essential. Nemo dat quod non habet and the idea of criminal property are based on the same simple test of honesty. Both ask whether a person who receives property does so cleanly or carries forward the stain of wrongdoing. In each case, the law looks not just at the price paid but at what the buyer knew or should have known. The closer the buyer is to suspicion, the less protection the law gives. In the judgment, the Judge specifically praised Mr Qureshi’s handling of the case, noting that his cross-examination was “highly skilled.”

If Sinéad O’Connor were around today, watching the children of Gaza, Yemen, and Sudan starve, her outrage would be incandescent. Thirty-one years ago, she revealed the true nature of the Irish ‘famine’ and its ‘painful feelings’, in her unique and fearless voice. An Gorta Mór was a woeful period marked by invasion and conflict – a purposeful program starvation, politically recast as the sole result of crop failure. There is no doubt Sinéad’s howl of outrage would link the bitter legacy of Britain’s starvation of Ireland to the deliberate deprivation being perpetrated in parts of the MENA region. She would rightly be calling it a crime. Across the MENA region, like Sinéad, musicians have framed the language of resistance. Palestinian group DAM have spoken about their guilt and mourning as activist artists watching the devastation at home. Tunisian singer Emel Mathlouthi, her voice soaring at the Arab Spring, asserted, “I am free and my word is free/ Don’t forget the price of bread … I am the voice of those who do not die,” lyrics that resonate as both witness and indictment. Egyptian band Cairokee, Syrian singer Samih Shqeir, and Lebanese composer Marcel Khalife all fuse grief and protest, arguably turning every refrain into evidence. Through their music, collective memory is sharpened into accusation, particularly on the theme of starvation. But, when and how can such an accusation become a criminal case? According to the World Food Programme (WFP), conflict is the primary reason people are living in acute hunger. The WFP explain that hunger drives people away from their land and livelihoods, disrupts markets, increases food prices and destroys critical developmental gains. Palestine, Yemen and Syria are described as “hunger hotspots” where people are suffering devastating impacts. Research has shown that across all causes and factors, conflict is the dominant feature in famine across time, but it was not until more recently that it became a crime. The Lieber Code (1863) specifically allowed the ‘extreme measure’ of driving the fleeing civilians back into a starving city under siege ‘so as to hasten on the surrender’. The first instance where ‘deliberate starvation of civilians’ was identified as a war crime was after WWI by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. Although ultimately never implemented, the list of crimes, including starvation, remains one of the earliest attempts at itemising specific war crimes. Ask about starvation and the siege of Leningrad in WWII is often recalled where there was mass death from hunger, but the siege itself was not unlawful. Starvation remained a military and political tactic, framed as legitimate globally and regionally, well into the twentieth century. Even after the horrors of two world wars, the Geneva Conventions of 1949 did not specifically prohibit starvation. It was the 1977 Additional Protocols to the Geneva Conventions that explicitly prohibited starvation as a method of warfare. Article 54 of Additional Protocol I, concerned the protection of victims of international armed conflicts. It prohibits various acts which deny civilians sustenance. Eleven years later, starvation was added to the Rome Statute of the International Criminal Court as a war crime. Six years ago the same laws were amended to apply to non-international armed conflicts – applicable to regions, including MENA. It is often said that in World War II more people died of starvation and disease than in active combat but Daphne Yuqing Liu, an expert on the law on starvation, describes this as too sweeping a declaration. She explains the modern approach as follows: “First, there is a fine difference between the tactical use of starvation and starvation due to an instability. Second, the war crime of starvation as we discuss it today is more than food. ‘Hunger’ for water and medicine also count. The test is whether the item is indispensable to civilian life” This modern test of what is indispensable is important to account for activities in conflict such as destruction/rendering useless by poisoning or polluting water supplies. In MENA, violent attacks on aid workers (and their convoys) and healthcare providers (and their facilities) may be evidence of a starvation tactic. The Gaza Humanitarian Foundation which controls food distribution has been described as “an experiment in food control and counterinsurgency for the digital era”. In Syria 5.4 million are at risk of hunger. Famine in Yemen is so ubiquitous it has its own Wikipedia page. In relation to Gaza, UN experts have said : “Securing access to food, water, medicine and critical services is not a matter of charity – it is a legal duty” So it is that international law now reflects Sinéad’s moral values: Intentionally using starvation of civilians as a method of warfare can, with the necessary evidence, lead to accusation, arrest, prosecution, conviction and sentence, although the laws do not apply to combatants, which can make understanding a situation opaque. It is a law which needs to be tested and therefore should not sit idly on the Rome Statute books but needs to be enforced to see if it functions. If it is used, there may be an impact in terms of deterrence or crime prevention, however aspirational that may sound. We do not have to wait for the much-beleaguered International Criminal Court (which by the way only has three courts), because in many cases, international laws can be enforced in those states which can apply what is known as ‘universal jurisdiction’. This means that many states have the ability to put anyone on trial for international crimes, wherever they are committed. The Global Investigative Journalist Network has reported that in 2025, over 300 million people face acute hunger and that Sudan and South Sudan, Gaza, and Haiti are facing the worst crises. Which of these are conflict related, time and evidence will tell. In addition to the importance of what has become known as ‘activist lawyering’ for moral imperatives , the international legal prohibition on starvation is also a crucial tool for advocacy, evidence-gathering, and the demand for accountability. The recognition of starvation as a war crime (national or regional) transforms it from a military objective to a violation of international norms. It follows that the fundamental right to food is not a ‘cost’ of conflict but a key basis to identify organised criminal military activity.  In this context, law also empowers musicians, activists, and lawyers to frame starvation, as Sinéad did, not as collateral tragedy, but as evidence of a prosecutable crime. If Sinéad O’Connor were here, she may demand that these laws against starvation do more than exist on paper. She may insist they serve the hungry, not through empty promises but through real-world prosecutions and prevention. Anything less, as MENA’s musicians explain, is silence. Dr Felicity Gerry KC is an international barrister, consultant and media commentator with expertise in complex, contemporary legal issues such as human trafficking, homicide, terrorism and war crimes. Check out the article here.

Dr. Felicity Gerry KC has been featured in Rolling Stone MENA with her article on the controversial use of nasheeds in terrorism trials. She explores how these Islamic devotional songs are sometimes misinterpreted as evidence of extremist beliefs, highlighting the cultural misunderstandings and stereotypes that can influence legal proceedings. Article It may surprise many that nasheeds, Islamic devotional songs, can be introduced as prosecution evidence in criminal trials, particularly those involving accusations of terrorism, where the prosecution seeks to prove an accused person has extreme views, beliefs, and associations. Nasheeds have been used to establish ideological alignment with extremist groups, or to show an accused person’s level of engagement with extremist narratives. However, the probative value of nasheeds as evidence needs to be carefully assessed, as they can be easily misinterpreted or used unfairly, particularly against Muslim youth who may not even speak the language in the song. Listening to a nasheed, even if it is glorifying violence, does not necessarily mean a person is expressing support for a particular extremist group or cause. It is crucial to consider the context of a nasheed found on a suspect’s phone. They are ubiquitous, and using possession of a download can unbalance the fairness of a criminal trial, especially if investigators and prosecutors are unfamiliar with Islamic culture or a judge or jury has preconceived negative views about Islam. One case in which I defended, involved an allegation of a terrorist bomb plot, it was possible to show that imagery on a phone was capable of being misunderstood. It related to the Islamic religious icon Khawla Bint Al Azwar, the Islamic equivalent of Joan of Arc. In that case, nasheeds were played in court as evidence of alleged extremism. The issue of using music as evidence of criminality is gaining prominence in the charging of musicians in relation to their expressed views on the situation in Palestine. Cases such as the charging of Liam Óg Ó hAnnaidh, a member of the Irish rap group Kneecap, and the cancelling of Bob Vylan, are hot topics on social media, but the use of Nasheed’s to allege someone is of “bad character”, has a propensity to commit a crime, or has an extremist ideology is equally important and perhaps less well known. The issue of using art and culture as evidence in criminal trials is more commonly discussed in the context of rap music where creative or artistic expression has commonly been used in criminal proceedings as evidence of criminality, even though it is known that rap relies on hyperbole and acts as a form of release for social commentary. As rap music is part of youth culture, so are nasheeds, yet the two have become targets for prosecutions, to link people to crimes without understanding the art, the culture or the religion. The risk is that lyrics and sounds are taken literally without being understood, branding young people as criminals or criminal associates, as terrorists or terrorist sympathizers. As rap music has been used to amplify images of black youth as ‘gang’ members, so nasheeds are used to frame Muslim youth as “extreme”. In one homicide I defended one lyric relied on by the prosecution to impute an accused’s “bad character” appeared in a search on Lyrics.com in 74,283 lyrics by 46 artists, and in 48 albums. Spelt another way, it appeared in 1,836 lyrics by 100 artists, and in 3 albums. These searches were undertaken by the defense, not the police officer who gave evidence of “gang” associations. In that case that evidence was excluded by the trial judge but evidence of “nicknames”, hand signals and postcodes were admitted, suggesting at least the ‘ghettoization’ of young people in certain locations, even though my client lived elsewhere. My client and another were acquitted. A co-defendant, an emerging rap artist, was convicted. Searching for nasheed lyrics is less easy. Even accepting that some lyrics that are directly connected to the crime charged might be relevant, rap and nasheeds are not usually presented in this way. Most often, generic lyrics are used as evidence of what someone was thinking or their associations and motive, even where the recording is old, mainstream and the listener is a youth with only passing familiarity with the content. Assuming nasheeds are terrorist hymns is rooted in stereotyping, reinforces bias and anti-Muslim sentiments, and risks prejudicial effects in court. Campaigns against the use of rap as evidence have gained traction, supported by research from academics, lawyers and NGOs, arguing for a far more rigorous approach to admissibility with the legislature called upon to limit the use of rap as evidence. The same may well be necessary for nasheeds. Link to to article: Rolling Stone MENA

By Alexandra-Maria Eugenicos, Criminal Defence Barrister, Libertas Chambers.   Abstract   A consideration of World Uyghur Congress v National Crime Agency [2024] EWCA Civ 715. The fact that there might not be sufficient evidence to justify use of powers under POCA at time of importation, should not preclude the launch of an investigation. This judgment has also changed the interpretation of money laundering offences under POCA with real impact across many professions, including the Bar. Introduction The appeal in the case of WORLD UYGHUR CONGRESS v NATIONAL CRIME AGENCY [2024] EWCA Civ 715 relates to whether the National Crime Agency (‘NCA’) had misdirected itself in law in one or more material respects when reaching the decision: Not to investigate alleged offences under Part 7 POCA 2002; Not to commence a civil recovery investigation under Part 5 POCA in respect of certain cotton products brought into the UK and monies derived from or connected to purchase. These issues were considered in the lower court where a claim for judicial review was brought by the World Uyghur Congress against three law enforcement agencies including the NCA. This was focused on challenging the decision not to carry out investigations into whether consignments of cotton goods originating from the Xinjiang Uyghur Autonomous Region of China (‘XUAR’) was a product of forced labour. It was submitted that the authorities should have investigated whether these items imported into the UK were the product of forced labour or other human rights abuses perpetrated by the People’s Republic of China. The general approach was re-iterated that rarely will the courts involve themselves in decisions as to whether to prosecute; caselaw confirms that only in exceptional cases would the court interfere with a prosecutor’s decision-making. However, it is of note that the law does not render a decision-maker’s powers unfettered – and it was emphasised that those tasked with decisions must direct themselves correctly in law. Context It was not in dispute that there is a growing body of diverse and substantial evidence confirming serious human rights abuses occurring in the XUAR cotton industry on a large scale. There is clear and widespread exploitation including forced labour which accounts for a significant proportion of all cotton originating from China. It was undisputed that 85% of cotton grown in China comes from the XUAR. Parties agreed that products derived from forced labour anywhere in the world can amount to criminal property for the purposes of money-laundering offences under Part 7 or recoverable property for purposes of civil recovery under Part 5. As a result, funds from sale of such products – and any property into which those funds are put – could also be criminal or recoverable property. The appellant had gathered extensive evidence raising ongoing concerns in relation of importation of cotton products originating from XUAR where forced labour and human rights abuses are widespread within that industry. These were provided to the authorities with the aim of persuading them to act. Ground of Appeal The Appellant’s main complaint was that the NCA should have been actively investigating and thereby prohibiting importation of goods originating from the XUAR using powers under s. 1 Foreign Prison-Made Goods Act 1897 and s. 139 Customs and Excise Management Act 1979. Moreover, the NCA should also have started a POCA investigation on basis that cotton goods originating from XUAR (or proceeds) could be criminal property. Discussion The court concluded that the fact that there might not be sufficient evidence to justify use of powers under POCA at time of importation, should not preclude the launch of an investigation. The opposite notion would suggest that the NCA, police and other investigative bodies would not investigate overseas criminality being imported to the UK in absence of concrete evidence of specific crimes perpetrated by particular people. The Court of Appeal also held that it was wrong in law to suggest that criminal liability for money laundering or civil recovery is removed where the proceeds have passed through several hands in a business context where adequate consideration is paid. There should also be distinction between a bona fide purchaser and one who suspects that this is the product of servitude. Appeal allowed. Wider Application This judgment has already impacted the interpretation of money laundering offences under POCA. This is directly applicable to a barrister in practice who may receive payment for fees knowing or suspecting that those funds are derived from criminal property. This would mean that they are in possession of criminal property even if adequate consideration is given. To avoid any exposure to criminal liability, the Bar Council strongly recommends that those who find themselves in such a position carefully consider whether they should make a Defence Against Money Laundering disclosure to the National Crime Agency. They have provided further guidance on this issue in a practice note – Practice note on Rex (on the application of World Uyghur Congress) v the National Crime Agency [2024] EWCA Civ 715.

Alex Henry (Alex) was born 3 December 1992. Alex has Autism Spectrum Disorder (‘ASD’). ASD is a lifelong neurodevelopmental disability which affects how people interpret the world and understand it. It affects more than one in 100 people. Despite its prevalence, it remains poorly understood, stigmatised and stereotyped. Alex has been imprisoned since 2014 as an alleged accessory to murder. ASD is frequently mis-diagnosed, under-diagnosed and stigmatised – often it is not picked up until a person is an adult. Alex was not diagnosed until after he was convicted and sentenced. The expert ASD diagnosis by Professor Simon Baron Cohen in 2016 was independently confirmed by two further experts.  It was accepted at sentence that the friend was the killer. He was sentenced to life imprisonment with a mandatory minimum of 22 years. Alex was sentenced to mandatory life imprisonment with a mandatory minimum term of 19 years. Alex will be 40 by the time he can apply for parole. Following which he will be on ‘life licence’ and subject to recall for the rest of his life. In 2014, a single judge at the Court of Appeal of England and Wales Criminal Division (‘COA’) refused Alex permission to appeal. Two years later Alex’s ASD was finally diagnosed. As is well known, in 2016, the UK Supreme Court held in R v Jogee that the law on JE had ‘taken a wrong turn’ for 30 years. The court held that the use of ‘realised’ (foreseeing the possibility of a crime) was an error of law. This means that the use of ‘realised’ in legal directions to the jury in Alex’s trial was an error of law. On 2 March 2016, following the R v Jogee decision, Alex sought leave to appeal out of time to the full court of the COA on the basis that the trial jury was wrongly directed in law, and relying on his ASD diagnosis. Professor Baron Cohen was subject to cross-examination, even though the Prosecution submitted no contrary expert opinion. In 2016, it was decided by the COA in R v Johnson [2016] EWCA Crim 1613 that the burden to prove a ‘substantial injustice’ is on the applicant, and that it is a ‘high threshold’. Alex’s appeal was rejected on the basis he had not suffered such an injustice despite his ASD not being known and him serving a life sentence for not killing anyone. The decision appears contrary to Jacobs [2023] EWCA Crim 1503, where the COA held that autism is not relevant to reasonable belief as a matter of principle, but it may be relevant on the facts of the case if the belief depends on an impaired ability to read social signals. The COA also assessed Alex’s behavioural ASD traits as bad character, stating: ‘[i]t was clear based on the materials before [them] that Henry has a significant history in relation to behavioral problems which originated from at least 2002; he was assessed on several occasions to ascertain whether he had any mental illness’[para 37 – of course ASD is not a mental illness but a neurodivergent condition] On 12 September 2017, an application for a certificate for leave to appeal to the UK Supreme Court (UKSC) arguing that the control by the COA of UKSC appeals is contrary to the rights of a disabled person was rejected.  Applications to the ECHR and the CCRC have also been refused, as has a petition for mercy to the former Secretary of State for Justice. Unhelpfully, the CCRC gave its opinion on the proposed conditional pardon which would have allowed for Alex’s release. The CCRC acknowledged Alex’s ASD diagnosis but iterated Alex’s ‘bad character’ ignoring the link between ASD and his behaviour. Neither the Secretary nor the CCRC examined the practices in the criminal justice system (CJS) for people with ASD. On 12 September 2024 a report by the Centre for Criminal Justice Studies found that JE laws are vague and wide in scope, causing systemic injustice, including overcriminalisation, over-punishment, discriminatory outcomes, and convictions where there is no compelling evidence of intent and a defendant’s physical contribution is minimal’. The author, Nisha Waller states: ‘The current law encourages the overcharging of suspects and allows cases to be propelled forward based on poor-quality evidence.’ In 2022 the Autism Research Centre, University of Cambridge found that an overwhelming majority of ASD accused persons were not provided with adequate support or adjustments in the UK Criminal Justice System. This followed an Equality and Human Rights Commission report in June 2020 that warned that the CJS is failing those with learning disabilities and autistic people. The Cambridge report noted that there was almost no research investigating how autistic defendants are being treated within the CJS. In 2024 an expert consensus was published on the identification and support of individuals with ASD in within the UK CJS. It concluded that greater attention needs to be given to this potentially vulnerable population when navigating the CJS. However, there is some recognition on sentencing: In 2020 the UK Sentencing Council published guidelines specifying that mental disorders, developmental disorders and neurological disorders should be considered in sentencing – noting specifically that no adverse inference should be drawn if an offender had not been formally diagnosed. ASD affects Alex’s ability to assess the conduct and intentions of others. Communication differences mean that Alex is also always at risk of being misunderstood. Alex’s ASD diagnosis is therefore directly relevant to his actions in relation to his conviction and whether he could know (or realise) what someone else would do. His ASD diagnosis gives rise to serious doubt on his alleged culpability The expressions of the impairments caused by ASD should also have been taken in account when weighing the person’s criminal responsibility and sentence. Alex’s latest move is an application to the Committee on the Rights of Persons with Disabilities: It is suggested that, as a person with a disability and the UK has violated Alex Henry’s rights under the Convention. His experience at all stages of the UK criminal justice system is argued to be discriminatory and inequitable. He has not been able to effectively participate in a criminal proceeding where his ASD is known and properly addressed. The UK is obligated to ensure Alex is both ‘equal before the law’ and ‘equal under the law’ (Article 5 CRPD); this means that Alex has the right to be protected by the law and has the right to use the law for personal benefit. This interpretation requires existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities to be modified or abolished. Additionally, the protection and promotion of the rights of persons with disabilities should be considered in all policies and programs. State parties must take positive actions to ensure that Alex can have full enjoyment – this includes accommodating his needs within legal processes. The application alleges that Alex’s rights were denied through failures at every stage of trial and appeal, including drawing adverse inferences from his silence in police interview. The consequence of Alex’s case is that any young person with ASD ‘involved’ in crowd violence is at risk of a life sentence, even if they are not able to assess what another person would do and even if they make no significant contribution to the crime. The result is the imposition of a harsh and grossly disproportionate sentence exacerbated by being labelled with ‘murder’ which is especially difficult for parole purposes. Thus, it is suggested that the UK has violated his CRPD rights and is perpetuating discriminatory customs and practices as opposed to supporting their modification or abolishment. It is not known whether his application will be accepted but Alex’s is a case that highlights some complex issues for Westminster. Felicity represents Alex pro bono and is instructed by Dean Kingham of Reece Thomas Watson Solicitors.

In this article, Alexandra-Maria Eugenicos discusses the appeal outlined above and the concept and mechanics of the ‘Slip Rule’. Introduction This appeal involves 6 unconnected cases concerned with administrative amendment of sentence. Correcting sentencing errors are commonplace and those in practice are familiar with the mechanics of the slip rule. However, the issue arises where the administrative alteration is significant, an example being where the sentence announced in court is wrong in law, which cannot so easily be remedied administratively. Amending a Sentence in Law At paragraph 6 of the judgment in Leicth, Lord Justice Davis states: ‘The fundamental principle is that the sentence imposed on a defendant in the Crown Court is the sentence pronounced in open court by the judge.’ The Court of Appeal further considered the history of the law enabling amendments to sentence being made. The following is set out by Lord Justice Davis at paragraph 8: ‘Before the advent of the Crown Court in 1972 there was no statutory power to amend or alter a sentence imposed in any higher criminal court. There was a common law power exercised either by the Judge of an Assize or by the Recorder of a Quarter Sessions. At the end of the Assize or the Quarter Session the relevant judge would sign the calendar authenticating the sentences which had been passed. On occasion the judge would decide to alter the sentence impose in court. The practice was that any alteration would not be one which operated to the disadvantage of the defendant.’ A new statutory power was introduced by s. 11(2) Courts Act 1971 allowing a sentence or other order made by the Crown Court to be varied or rescinded within 28 days of imposition. No stipulation was made as to how a sentence should be altered but the Court of Appeal made clear that any alteration must be announced in open court, and the defendant must be present unless there was a good reason for absence, or they were represented by counsel. Lord Justice Davis considers instances where this above guidance was ignored. The statutory power of amending sentence is now contained in s. 385 Sentencing Act 2020 which sets out the current time limit as 56 days. There are procedural guidelines contained in Part 28.4 CrimPR. It may be exercised by the Crown or defence in writing and by the court of its own motion. The hearing may be held in public, private or without a hearing. The judge may not exercise this power in the defendant’s absence unless it is a defence variation application, the defence have had opportunity to make representations at a hearing, or the variation will not mean a harsher sentence. However, Lord Justice Davis made clear that ‘whatever the decision is and however it is made, it must be announced at a hearing in public along with the reasons for the decision.’ (para 11). If variation is sought after 56 days, it can only be varied by the Court of Appeal under s. 385. Appellants’ Cases The details of the cases considered in the joined appeals are instructive and worthy of consideration. Daniel Leitch Mr Leitch was sentenced for offences on an indictment in which no evidence had been offered, was not sentenced for an offence to which he had pleaded guilty, or an offence committed for sentence. The court record did not reflect this because the court clerk had later been authorised to amend the court record. This was not announced in open court. Leave to appeal was granted in relation to offences he had been acquitted, with those sentences quashed. However, the other grounds failed. DS This defendant was sentenced to a total term of 14 years and 3 months for multiple counts of rape. A sentence for offenders of particular concern under s. 278 Sentencing Act 2020 was mandatory on all counts. It was mentioned during sentencing remarks but not pronounced. It was not sufficiently explained that he would be subject to extended licence of 1 year. Moreover, there was an intention to impose a Restraining Order, but no pronouncement was made at the hearing nor was there specification of duration. A day after the sentencing the judge was made aware following which the court clerk made entries on the DCS where the above was remedied and a restraining order made ‘until further order’. The sentencing judge had explained in an email to the Court of Appeal that he had intended to write to counsel and told the court clerk he would do so, but he did not. Leave was granted for DS to pursue all grounds of appeal in relation to amendment. The Court of Appeal did not find his sentence manifestly excessive and did not accept that the Restraining Order was correctly imposed. Paul Fleet Mr Fleet was made subject to a Sexual Harm Prevention Order (‘SHPO’) for an indefinite period and the sentencing judge had imposed notification requirements for an indefinite period. The SHPO was later amended and specified for 5 years with notification requirements imposed for the same period. This order was amended under the slip rule with the duration and notification requirements set at 10 years. There was no hearing where this was announced by the judge. Appeal in relation to sentence was dismissed; however, the Court of Appeal recognised the deficiency of the 10-year amendment not being pronounced in court, determining that the SHPO was as pronounced in as initially amended (5 years duration). PB This defendant was sentenced to 20 years imprisonment. The judge did not impose mandatory sentences on multiple counts as required by s. 278 Sentencing Act 2020 (Offenders of particular concern). The prosecution alerted the judge 5 days later, the judge amended sentence with an extended licence of 2 years ‘administratively and under the slip rule.’ The prosecution said that a more severe sentence should not have been imposed which led to a slip rule hearing where the sentence was amended to 19 years custodial with extended licence of 1 year. A ground of appeal that sentence was manifestly excessive was rejected, but the appeal allowed in relation to the 20 year determinate sentence being quashed and substituted for a special custodial sentence for an offender of particular concern as 19 years with extended licence of 1 year. Andrew Adams Mr Adams pleaded guilty to handling stolen goods and driving offences (no insurance and no licence). He was sentenced to 2 years for handling stolen goods. The offences took place within the operation period of a SSO which was activated. Mr Adams was sentenced to 2 years and 6 months (previous offence of bladed article) to run consecutively, and further fined separately for each driving offence with a default sentence of 7 days to run concurrently, disqualification for 3 years and ordered to sit an extended re-test – in relation to the offence of driving with no licence. There followed discussions between counsel and the Court Clerk, the substance of which was not caught on the recording.  The Court Clerk went to see the judge, on return they say that disqualification is attached to the no insurance and is 21 months with 15 months uplift to account for the custodial sentence, taking it to 3 years. Counsel then raised concerns about whether an extended retest can be ordered on an offence of no insurance. The Court Clerk went to see judge again and when she returned said that the judge approved the amendment – no extended retest. Counsel told clerk it was not necessary for judge to return to court. The Court of Appeal did not accept that the custodial sentence was manifestly excessive in relation to the Handling Stolen Goods. However, the Court of Appeal did not find it appropriate to impose significant fines with default sentences with no means for this defendant to pay – no separate penalty should have been imposed on those counts. In relation to disqualification, the Court of Appeal agreed that this was manifestly excessive. Importantly, the out of court discussions are invalid. The sentence was substituted to 6 months disqualification with no extended retest. Fines and periods of custody in default quashed with no separate penalty substituted on driving offences. Renny Fletcher There was an error in the judge’s arithmetic when calculating sentence. There was no further hearing where this was announced, and the parties were not given notice when this was changed by way of a note on the DCS. However, to correct the error would be to impose a penalty more onerous and so the appeal was dismissed. Discussion The Court of Appeal considered relevant case law before arriving at their decision. In R v Kent [1983] 77 Cr App R 120, Lord Lane CJ said as follows: ‘There have been further difficulties arising in the following way. There have, on occasions, been, understandably, efforts made by court staff to prevent mistakes arising. This has resulted in discrepancies being observed between the sentence pronounced by the Judge and that appearing on the record sheet. We wish to make […] clear: first of all, the order of the court is that pronounced by the judge in open court. Secondly, the responsibility of the court staff is to make a record which accurately reflects that pronouncement.’ Lord Justice Davis gave examples where there may be discussions surrounding sentence in the days that follow by email, etc. If the alteration is limited/non-controversial or technical in some way, the hearing will not require attendance but any party. However, when the varied sentence is announced at court in public it ensures the ‘lawfulness of the sentence’ (paragraph 12). As such advocates should be vigilant to any communications of errors and how they are dealt with bearing this guidance in mind – most crucially the need for public pronouncement. Full Judgement The full judgment can be viewed here.

Marie Spenwyn contributed an article to the August edition of Counsel magazine, co-written with Lynda Gibbs KC (Hon). In the article, they explain the process to, and significance of, a course developed for the Inns of Court College of Advocacy (ICCA) for those representing children in the criminal justice system. The ICCA working group set out to draw together myriad resources to better equip practitioners to fulfil their regulatory duties and to continue its push for advocacy for children to be a specialist area of practice. Marie has been a member of the working party for a number of years working on the development of, and now delivery of the training course. Read the article through the link to the edition below – you can find the article on pages 20 and 21 of the publication. https://www.counselmagazine.co.uk/articles/advocacy-for-children-in-conflict-with-the-law In other news, Marie Spenwyn is one of the newly elected Masters of the Bench of Gray’s Inn. More information can be found at the Gray’s Inn website: https://www.graysinn.org.uk/news/new-masters-of-the-bench-trinity-election-2024/

By Dr Felicity Gerry KC I am delighted to see our campaign for the posthumous exoneration of Christine Keeler being covered for 4 days in The Mirror. The campaign is being brought by her son Seymour Platt who was left the task of telling her real story in her will. At the height of the “Profumo Scandal” Christine was the victim of a violent assault by a man called Lucky Gordon. He was prosecuted but sacked his lawyers and represented himself. In cross examination of her, he admitted assaulting her. She told the police she had not mentioned two other witnesses because they asked her not to. On the suggestion that she had lied about about who was present, Gordon’s conviction was quashed by the Court of Appeal (the court unusually expressing their belief that Christine was telling the truth). Nonetheless she was prosecuted for perjury and PCJ. She pleaded guilty and was sent to prison. She was under terrible pressure. For example, news reports account members of the public throwing eggs at her outside the Old Bailey in Stephen Ward’s trial where she was also wrongly accused of being a sex worker. Ward took his life before verdicts on whether it could be shown he was not living on her “immoral” earnings. These events framed Christine Keeler appallingly for the rest of her life, as Seymour Platt has explained in the Mirror. The law on the charges Christine faced (despite being a victim) only applies if there is a “material lie”. That Christine did not state that two other men were present when she was violently assaulted was totally irrelevant, especially as a proper investigation would have revealed they saw the attack and because her attacker admitted in court he assaulted her The Criminal Cases Review Commission is now quite properly investigating the case. The implications of the comments her silk Jeremy Hutchinson QC made at the time made it obvious she pleaded guilty when she was not, and she was shamed, unlike others whose reputation has been restored. There is a real risk that she was wrongly convicted. Sending her to prison was dreadful and she rightly deserves a posthumous exoneration. It would also go a long way to reframing a case that is the epitome of slut shaming, fitting with modern CPS guidance on violence against women and girls