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Darren Snow Secures Not Guilty Verdict In Rape Trial Darren Snow, instructed by DaSilva Solicitors in East London, represented his client TM in a 2-week trial at Oxford Crown Court. His client, still only 19, faced rape allegations going back to when he was 15 alongside a co-defendant. The case was complex and sensitive with a very vulnerable complainant. There was also a large amount of unused prosecution material relating to a large-scale sexual grooming police investigation where several parties had already been convicted. Darren’s client gave evidence with an Intermediary due to underlying ADHD and communication problems. The Co Defendant was convicted and awaits sentence.

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Darren Snow Appointed Chair of CIPFA Disciplinary Panel Darren Snow has been appointed as chair of the CIPFA disciplinary panel. CIPFA, the Chartered Institute of Public Finance and Accountancy, is the professional body for public finance. It has 14,000 members working throughout public services, in national audit agencies, in major accountancy firms, and in other bodies where public money needs to be effectively and efficiently managed. The appointment builds on Darren’s wide experience not only chairing professional disciplinary hearings but also as an experienced legal adviser and defence advocate. Darren sat on the Bar’s disciplinary panel for 6 years. He has also sat as a chair on police disciplinary tribunals and with various sports regulators.

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Acquittal Secured in Multi-Handed Grooming Trial at Bradford Crown Court Acquittal Secured in Multi-Handed Grooming Trial at Bradford Crown Court by Dapinder Singh KC and Fatima Laher who worked alongside and assisted Dapinder Singh KC in the preparation and conduct of a complex and high-profile grooming trial at Bradford Crown Court. The trial formed part of a wider series of prosecutions, arising from a large-scale significant investigation into non-recent allegations. This particular trial involved seven defendants, all accused of serious offences said to have taken place many years ago. The prosecution relied on historical witness evidence, digital material, and expert testimony. The trial spanned over seven weeks, requiring careful management of sensitive material and extensive cross-examination. The jury returned unanimous not guilty verdicts on all counts in respect of their client — the only defendant in the case to be acquitted of all charges. This outcome represents a significant success in a sensitive case. Dapinder Singh KC and Fatima Laher were instructed by Atta Rehman, Harris Solicitors.

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Dirty Money? Case Study: World Uyghur Congress v National Crime Agency 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.

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Joint Enterprise Murder and Persons with Disabilities 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.

Felicity Gerry KC

Slip Rule or Slip Up? Leitch Et Al [2024] EWCA Crim 563 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.

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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 – 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. To ensure you don’t miss out on future events please register for our newsletter by clicking here.

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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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