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Simon Csoka KCYear of Call: 1991
Silk: 2011
Expert InAccount Freezing & Asset ForfeitureAppellateBusiness CrimeCivil FraudCivil LitigationCommercial LitigationCriminal DefenceDefence CrimeHomicideHuman Trafficking & Modern SlaveryJudicial ReviewPOCA and section 10A litigantsPrivate ProsecutionsProfessional DisciplineRegulatoryRegulatory ProsecutionsRestraint OrdersSexual OffencesTax TribunalTerrorism
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Felicity was instructed by the Australian Centre for International Justice and led Daye Gang of the Victorian Bar You can read the JFM press release here justiceformyanmar.org/press-r…
Latest News
Art Not Evidence Campaign
Dr Felicity Gerry KC is a member of the Art Not Evidence campaign mentioned in the Times Law section today.
The Art Not Evidence mission is to fight for a fairer criminal justice system by advocating for a restriction on the use of creative and artistic expression as evidence in criminal trials.
The group is collaborating with musicians, community groups, and human rights organisations to campaign for law reform and promote the decriminalisation of rap music and creative expression more broadly. The hope is to create a more equitable and inclusive society that respects the freedom of artistic expression for all.
In broader terms Felicity has explained in our webinar on the use of rap music in criminal trials creates an unfair focus on character and culture rather than any individual contribution to a crime which risks unsafe verdicts.
Read about Art Not Evidence and the open letter to the Secretary of State for Justice here https://artnotevidence.org/our-mission/
Read the Times Law article by Catherine Baksi article here https://www.thetimes.co.uk/article/concern-over-use-of-drill-music-in-court-d229p00ng
Libertas Chambers
FELICITY GERRY KC JOINS WE LEVEL UP
Felicity joined a coalition of lawyers, academics, psychiatrists, and organisations with significant interest in, and long experience working with, perinatal women in the criminal justice system in making a submission to the Sentencing Council consultation led by WE LEVEL UP.
Question 17: âDo you agree with the proposed new mitigating factor and expanded explanation relating to pregnancy? If not, please provide any alternative suggestions.
Answer: NO: The Level Up submission relies on a wealth of authoritative research to demonstrate that the current proposal is insufficient and there should be a new mitigating factor which specifies that pregnancy, maternity, and the postnatal period is relevant to the sentencing of a female defendant convicted of any crime, and that an associated explanation should be included in all sentencing remarks.
The submission makes alternative suggestions including additional measures should also be introduced to avoid custody where a pregnant womanâs sentence is over the custody threshold, or she is facing a mandatory minimum sentence. In practical terms, this means:
Where a woman is on the cusp of custody, a non-custodial sentence must be considered.
Where a woman is over the custody threshold and facing a custodial sentence of up to 2 years, a suspended sentence must be considered based on the significant harm custody or separation causes to pregnant and postnatal women and their dependants.
Where a woman is facing a sentence of over two years, or a mandatory minimum sentence, pregnancy, and the postnatal period to constitute an âexceptional circumstanceâ that makes the imposition of the minimum term a disproportionate sentence and would justify not imposing the statutory minimum sentence.
This approach gives due weight to the significant harm caused by custody to the pregnant woman, her unborn child and a baby who may be born in prison. It also prioritises the best interests of the child over separation and fits with the Ministry of Justice Female Offender Strategy which identifies that âcustody is particularly damaging for womenâ and that many female offenders could be more successfully supported in the community, where reoffending outcomes are better. The impact of custody on a woman who is pregnant is very likely to cause significant harm to the physical and mental health of both the mother and the child.
Without a full medical and social picture of the pregnant or postnatal woman, there is a significant risk that sentencers will be unwittingly sentencing a mother to a stillbirth, a baby to death or other serious complications, or an infant to developmental trauma. and the sentencer should give reasons for all sentences of pregnant or postnatal women addressing the known research and data.
Download the submission by clicking this link
Find out more about Level Up here https://www.welevelup.org/
Libertas Chambers
Dr Felicity Gerry KC in Daily Mirror on campaign to exonerate Christine Keeler
Dr Felicity Gerry KC appears in the Daily Mirror on the campaign to exonerate Christine Keeler.
The campaign for the posthumous exoneration of Christine Keeler was covered for 3 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.
Dr Gerry KC explains: “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 and she was prosecuted for perjury. 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 when she attended the Old Bailey in Stephen Ward’s trial where she was also infamously accused of being a sex worker. Ward took his life before verdicts on whether it could be proved he was living on her “immoral” earnings. Most people now accept this was a travesty of justice. It certainly framed her 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 âmaterial lieâ. 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 supported her account 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 barrister Jeremy Hutchinson QC made at the time make it obvious she pleaded guilty when she was not, and she was appallingly shamed, unlike others whose reputation has been restored.
“There is a real risk that she was wrongly convicted by her own plea on an incorrect application of law on credit / lies. 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 and has had lasting implications for all women being improperly framed as liars, fitting with modern CPS guidance on violence against women and girls”
You can read more here https://www.mirror.co.uk/news/uk-news/profumo-sex-scandal-icon-christine-31477770
Libertas Chambers
Latest Insights
Chambers Article: Rule 25.9(2)(c): Defence Statements and âopeningsâ
Traditionally in England and Wales the defence may give an opening address at the start of the defence case, but only where evidence is to be called other than from the accused person. In many cases this means that the issues are not identified clearly until a late stage and in long cases there can be an advantage to the prosecution to dominate the trial issues.
In a recent webinar we discussed this topic of delivery of defence openings / summary of issues and how defence statements can be framed to support a defence opening.
This article is a summary of the key provisions discussed.
Click below to read in full.
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Chambers Article: The âFediverseâ vs P2P: The next generation of digital forensics
The courts of England and Wales may still be dealing with the many EncroChat-related prosecutions, but technology has already moved on. While many are focused on AI and its potential for misuse, what some overlook are the networks on which these platforms operate. You may never have heard of the âfediverseâ but, if you practise criminal law, you should understand the basics, says Benjamin Knight.
Click below to read in full.
Download Article now
To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register
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Unreasonable delay… Sufficient to warrant a permanent stay of criminal proceedings?
Article originally posted 9th June 2023.
Updated: 18th August 2023
In England and Wales, the answer to this question is no. However, in Canada, a more robust approach is taken to procedural delay in certain circumstances. This article discusses delay to the criminal trial process, once it has begun. This is to be distinguished from the timely prosecution of certain categories of offence which come to light or are reported many years after they were committed, as occurred e.g., in Sawoniuk who was tried and convicted some 50 odd years after his war crimes.
England and Wales
Article 6(1) of the European Convention on Human Rights provides that every person charged with a criminal offence has the right to a fair trial by an independent and impartial tribunal within a reasonable time. The reasonable time right is not unqualified, but it has been held to be both independent of and separate to the co-existing rights in article 6 to a fair trial by an independent and impartial tribunal. It has been given effect in the domestic laws of England and Wales by the Human Rights Act 1998 which requires public authorities to act in a convention compliant manner. Therefore, as far as an individual charged with a criminal offence is concerned, and in very broad terms, this means that their convention rights not only trump the common law where there may be conflict between the two, but that prosecuting authorities and criminal courts must act in a manner which is compatible with their convention rights.
In most cases, time starts to run from the moment a person is charged or summonsed and it continues until the conclusion of any appeals, including appeals against confiscation orders. In order to establish a breach of the reasonable time requirement, an accused is not required to demonstrate prejudice; once a breach has been established, however, the concept of prejudice looms large when the criminal court comes to consider the appropriate remedy for the breach. Typically, this is because an accused whose reasonable time right has been breached, will apply for a stay of the proceedings as an abuse of the process of the court, thereby bringing into play ordinary and well-settled abuse of process principles.
The established cases in England and Wales which deal with the appropriate remedy for a breach of the reasonable time requirement are: Attorney Generalâs Reference (No.1 of 1990) [1992] 95 Cr. App. R. 296, Attorney Generalâs Reference (No.2 of 2001) [2004] 2 A.C. 72, R v S. (S.P.) [2006] 2 Cr. App. R. 23 and R v F. (S.) [2011] 2 Cr. App. R. 28.
Taken together, the following principles emerge:
(i) a permanent stay is the exception rather than the rule;
(ii) there should be no stay in the absence of serious prejudice to the defendant being tried;
(iii) the court is under a duty to regulate and control its proceedings to ensure that the defendant receives a fair trial, notwithstanding the delay.
(iv) a permanent stay of proceedings should only ever be ordered in circumstances where the defendant cannot receive a fair trial or where, for a compelling reason, it is no longer fair for the defendant to be tried;
(v) in the latter case, a permanent stay will never be warranted in circumstances where a lesser remedy to mark the breach will suffice.
Canada
Section 11(b) of the Canadian Charter of Rights and Freedoms, contained in Part 1 of the Constitution Act 1982, provides that, âany person charged with an offence has the right to be tried within a reasonable time.â Section 11(d) provides for the co-existing rights to a fair trial by an independent and impartial tribunal.
Prior to 2016 and the Supreme Court of Canadaâs decision in R v Jordan, [2016] SCC 27 (CanLii), violations of the section 11(b) charter right were determined according to the âthe Morin frameworkâ, following the Courtâs earlier decision in R v Morin, [1992] CanLii 89 (SCC).
The Morin Framework
Morin was a straightforward drink-driving case from the state of Ontario which enjoyed a delay of 14.5 months between the defendant being charged and her trial taking place. Her counsel had requested the earliest possible trial date. On the day of trial, counsel applied to stay the proceedings alleging a violation of the defendantâs section 11(b) constitutional right to be tried within a reasonable time. This application was dismissed and the defendant was convicted. Her case progressed all the way up the Supreme Court of Canada (âSCCâ).
The Court held that in determining an alleged section 11(b) violation, it was not apposite to apply a mechanistic or mathematical formula. Instead, a judge was required to balance the protection afforded to the individual by section 11(b) against other factors which inevitably lead to delay. These other factors were:
the length of the delay;
any waiver of time periods by the defence;
the reasons for the delay, including
(a) the inherent time requirements of the case,
(b) the actions of the accused,
(c) the actions of the Crown,
(d) limitations on institutional resources, and
(e) other reasons for delay; and
prejudice to the accused.
The majority stated that unreasonable delay should only be investigated if the period was long enough to raise an issue as to its reasonableness. Short periods of delay would only be capable of raising an issue if a defendant could demonstrate prejudice.
With respect to limitations on institutional resources in particular, the Court suggested guidelines of 8 to 10 months for provincial courts to determine matters and 6 to 8 months, post-committal, for trial in the higher courts. It made clear, however, that these were guidelines only, not intended to operate as a limitation period and that they were to be weighed in the scales with the other factors which they had identified. The Court recognised that the practical application of these guidelines would be influenced by the extent to which an accused might suffer prejudice. The Court noted that the guidelines would require adjustment by regional courts to reflect local conditions and that they would also need to be adjusted from time to time to reflect changing circumstances.
The Court observed that prejudice might be inferred from the length of the delay: the longer the delay, the more likely an inference of prejudice. However, if prejudice could not be inferred by the court or proved by an accused, any suggestion of an alleged violation would be seriously undermined. The protection afforded by section 11(b) was to ensure that trials were brought on swiftly and to minimise prejudice, not to avoid trials on their merits from ever taking place. A defendantâs attitude to securing a timely trial was an important consideration to be weighed in the scales. A balance had to be struck between the public interest, which demands that persons charged with offences should be brought to trial, and the accused’s interest in the prompt and efficient determination of criminal proceedings.
Prior to the SCCâs decision in Morin, an extreme example of a section 11(b) violation which resulted in a stay is to be found in R v Rahey [1987] CanLii 52 (SCC).
The provincial court judge presiding over the matter caused an 11-month delay after the prosecution had closed its case and the defendant had asked for a directed verdict of acquittal.
Initially, the accused did not object to the delay. After 9 months, he wrote to the Crown requesting that it should press the judge for a decision. He then alleged that his constitutional rights were being violated and requested a withdrawal of the charges. These requests were refused.
Instead, the Crown made an application to the superior court for mandamus to compel the provincial judge to deliver a ruling. The day before the provincial judge was due to give the ruling, the defendant made an application to the superior court for an order dismissing the charges on the basis that his section 11(b) constitutional right had been violated by the provincial court.
The superior court judge granted the defendantâs application and held that the trial judge’s delay had caused him serious prejudice by frustrating his ability to (i) conduct his defence, and (ii) carry on business while under a financial restraint order.
The superior court judge concluded that the only appropriate remedy for the breach was a dismissal of the charges. The Court of Appeal reversed this decision and directed that the trial in the provincial court should continue. It found that the evidence of prejudice was âinsubstantial and entirely speculative.â The SCC allowed the accusedâs appeal and ordered a stay of the provincial court proceedings. It is of some note that 6 of the 9 SCC Justices empaneled to hear this appeal were of the view that a stay of proceedings was the minimum remedy because the provincial court had lost its jurisdiction to continue trying the accused when it became the author of the section 11(b) violation.
R v Jordan [2016] SCC 27 – The New Framework
Jordan was charged in December 2008 with offences relating to the supply of controlled drugs. His trial ended in February 2013. He made an application under section 11(b) for a stay of the proceedings on account of the delay. The trial judge applied the Morin framework, dismissed the application and the defendant was convicted. He appealed to the Court of Appeal which dismissed his appeal. The SCC allowed his appeal, set aside his conviction, and ordered a permanent stay of proceedings.
The SCC introduced a new concept of presumptive ceilings beyond which any delay is presumed to be unreasonable unless there are exceptional circumstances justifying it. Once a presumptive ceiling has been exceeded, a permanent stay will follow unless the crown can justify the delay. There is no longer a need for an accused to demonstrate prejudice. Unlike the position in England and Wales, accused persons do not have to invoke abuse of process principles and prove on balance of probabilities that they cannot have a fair trial or that it is no longer fair for them to tried.
Unless there are exceptional circumstances to justify it, exceeding the presumptive ceiling, in and of itself, leads to a permanent stay and the burden is on the Crown to justify any delay under the exceptional circumstances exception.
The majority of the SCC opted for a new framework stating that the Morin framework,
ââŠhad given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already overâburdened trial courts. From a practical perspective, the Morin frameworkâs afterâtheâfact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.â
âA new framework is therefore required for applying s. 11(b)⊠At the heart of this new framework is a presumptive ceiling beyond which delay â from the charge to the actual or anticipated end of trial â is presumed to be unreasonable unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).â
The new framework is applied as follows:
Defence delay (caused or waived) does not count towards the presumptive ceiling.
Once the applicable presumptive ceiling has been exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances.
If the Crown cannot do this, a stay will follow.
âExceptional circumstancesâ are circumstances which lie outside the Crownâs control. They must be reasonably unforeseen or reasonably unavoidable, and not reasonably capable of remedy.
Whether circumstances are exceptional will depend on the trial judgeâs good sense and experience.
In general, exceptional circumstances will fall under two categories: discrete events and particularly complex cases.
If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay.
If the exceptional circumstance arises from case complexity, the delay is reasonable and no further analysis is required.
An exceptional circumstance is the only basis upon which the Crown can justify a delay that exceeds the presumptive ceiling.
The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay.
The absence of prejudice to an accused person cannot be used to justify delays after the presumptive ceiling has been breached.
Only circumstances that are genuinely outside the Crownâs control and ability to remedy may excuse prolonged delay.
Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.
Turning to Jordanâs appeal, the total delay from the date on which he was charged to the end of his trial was 49.5 months. From this, the Court deducted a 4-month adjournment period for a delay which had been caused by the defendant changing his counsel shortly before his trial was due to begin. A further 6 weeks was deducted on account of a further delay occasioned when the defendantâs counsel was unavailable. This left a delay of 44 months which the Court found âvastly exceededâ the 30-month presumptive ceiling for superior court cases under its new framework. While there were some complexities to the defendantâs case, they were not of a kind that could reasonably justify this level of delay. Accordingly, as the Crown was unable to demonstrate that the delay was reasonable, the only remedy for the breach was a stay of the proceedings.
Discussion
On any view, the Canadian presumptive ceilings are very generous for most criminal cases being tried in the higher and lower courts. They amount to this: superior court cases must conclude within 2.5 years from the date on which a suspect is charged and provincial court cases must finish within 18 months. These are significant time periods for the vast majority of criminal cases. They were set with a view to tackling chronic delays and a culture of complacency to delay which had become embedded in some parts of the Canadian system. The SCC spoke of the need for everyone involved in the Canadian criminal justice system to address inefficient working practices and adequacy of resource problems.
In considering the potential utility, therefore, of the Canadian model to practice in England and Wales, one probably needs to consider, first, whether there are, in fact, any Crown Court cases presently taking longer than 2.5 years from charge to conclusion? And in Magistrates and Youth Courts, whether there are any cases that are not being disposed of within 18 months? There may not be that many. Judges and list officers in England and Wales have consistently shown a determination to have trials warned or fixed in the court calendar as soon as possible. Most trials, including those requiring High Court or specialist ticketed judges, used to be warned or fixed for trial within no more than 6 to 9 months of the PCMH; many within less time than this depending on the court centre. Cases were not infrequently moved between different court centres, both on and off circuit, to ensure that they could be tried as quickly as possible, regardless of counselâs convenience and often to the chagrin of busy counsel. So, in a sense, the Canadian model may not be a good fit to the system in England and Wales.
However, should the criminal justice system in England and Wales ever find itself overwhelmed or close to breaking point, to the extent that criminal cases are no longer capable of being listed and disposed of within the reasonable time frames that judges and list officers applied historically and did their best to adhere to, a brave counsel somewhere might wish to take a stab at presenting the Canadian model, with the ceilings suitably adjusted to reflect our own historic standards of efficiency and expedition. Who knows, it might just find favour with some Judges in some cases without the need to demonstrate prejudice and unfairness.
In relation to substantial complex fraud cases which in some instances can conceivably take longer than 2.5 years to reach a conclusion, under the Canadian model the complexity of these cases is deemed capable of amounting to an exceptional circumstance justifying the reasonableness of the delay such that no further inquiry is required. Having said this, it is probably fair to observe that there must come a point at which even complex cases should not be allowed to drift on if they cannot be made ready for trial and accommodated by a crown court centre within a reasonable time.
Rahey and Morin were considered by the House of Lords in Attorney Generalâs Reference (No.2 of 2001) [2004] 2 A.C. 72, as indeed was the New Zealand Court of Appeal case, Martin v Tauranga District Court [1995] 2 NZLR 419, in which an approach similar to that in Canada was taken.
Lord Bingham described the argument in favour of a permanent stay as a powerful one and opined that it was not at all surprising that such a powerful argument had been accepted by highly respected Courts around the world. However, in addition to the compelling public interest in the determination of criminal charges, he provided four reasons why it should not be accepted in England and Wales:
the right which a defendant has is to a hearing which should have certain characteristics; he said it would be anomalous if a breach of the reasonable time requirement had more far-reaching consequences than a breach of a defendantâs other section 6(1) rights e.g., the right to a fair trial. Lord Bingham cited the example of a defendant being convicted after an unfair trial, the Court of Appeal quashing the conviction because of the unfairness but nevertheless ordering a re-trial if a fair trial is still possible.
automatic termination of proceedings cannot sensibly be applied in civil proceedings;
in practice, automatic termination of proceedings has been shown to weaken the requirement. Citing the Judicial Committee of the Privy Council in the Scottish case of Dyer v Watson [2004] 1 A.C. 379, Lord Bingham pointed out that the convention is directed to breaches of basic human rights, not to departures from an ideal, and that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Lord Bingham expressed a concern that should a breach result in an automatic stay, judges might set the threshold at an unacceptably high level because the idea of setting free dangerous criminals or those who are guilty of serious crime on account of delay has always been repugnant;
finally, a close analysis of the ECHR jurisprudence did not support the contention that a breach of the reasonable time requirement should lead to an automatic stay of the proceedings.
Adrian Kayne
18th August 2023
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Latest Events
Dr Felicity Gerry KC will be at the International Bar Association Conference in Paris from 29 Oct to 3 Nov
Dr Felicity Gerry KC will be at the International Bar Association Conference in Paris from 29 Oct to 3 Nov – She is the Asia Pacific Member of the Criminal Law Committee – Â if you are attending, she would be delighted to meet you
Conference details here  #IBA2023 https://www.ibanet.org/conference-details/CONF2244.
Felicity is currently awaiting verdicts in the Al Hassan trial at the ICC and drafted the memorandum that led to the $82m divestment of the Golden City Investment Scheme in Myanmar. She was recently listed as one of the top 5 international lawyers you would want on your side – details here https://lawandcrime.com/partner-content/meet-the-top-5-international-lawyers-you-want-on-your-side/amp/
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Celebrating South Asian Heritage Month
NOTE: This event has now been cancelled.
Libertas Chambers members celebrate South Asian Heritage Month (SAHM) with a wide-ranging panel discussion on legal issues and careers to honour, recognize, and appreciate South Asian history and culture, as well as to comprehend the rich cultural legacy of countries within South Asia. This webinar presented by our members celebrates the accomplishments and legacy of individuals with origins in the South Asian countries.
Presented by our members with South Asian heritage who have expertise in corporate and criminal law on issues concerning South Asian business, countries and heritage in celebration of South Asian heritage month. We are proud to have several practitioners of South Asian origin, which make up 20% of our staff and a collective command of 8 different regional languages.
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Webinar Video – Defence Statements and Openings: Rule 25.9 and being fair and concise
We recently held a webinar on Defence Statements and Openings: Rule 25.9 and being fair and concise. A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair.
Presented by Dr Felicity Gerry KC and Marie Spenwyn
Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients.
To ensure you don’t miss out on future events please register for our newsletter by clicking here.
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