Index of Cases

1. Hawkes & Ors v Post Office Ltd [2022] EWCA Crim 1197 (01 September 2022) – where appellant expressed a lack of knowledge about the shortfalls found in their post office branch and at times questioned the system in use, Post Office Limited was under a duty to disclose findings about the reliability of the Horizon accounting software.
2. Priestley, R. v [2022] EWCA Crim 1208 – Consideration of the guidance provided by Forbes [2016] EWCA Crim 1388 and Limon [2022] EWCA Crim 39 when sentencing historical sexual offences. Leave to appeal a sentence as being unduly lenient refused.
3. Kadir v R. [2022] EWCA Crim 1244 – Court of Appeal considers whether witnesses who are outside of the UK can give evidence via Whatsapp.
4. Attorney General’s Reference on a point of law No.1 of 2022 (questions of law arising from prosecution in Crown Court for allegations of criminal damage to a statute) [2022] EWCA Crim 1259 – the Court of Appeal considered three questions of law that arose from a defence used in a trial for an offence of criminal damage in the context of a protest – whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest. 

1. Hawkes & Ors v Post Office Ltd [2022] EWCA Crim 1197 (01 September 2022)
   Former sub-postmasters/postmistresses and/or managers of sub-Post Offices bought appeals against their conviction for dishonesty due to lack of disclosure from Post Office Limited in regards to the reliability of the Horizon program – the computerized accounting system used by Post Office Limited. In each case, the appellant expressed a lack of knowledge about the shortfalls found in their branch and at times questioned the system in use. Post Office Limited was under a duty to disclose, but did not.

The Court had previously considered a substantial number of appeals against conviction by persons formerly employed as sub-postmasters/sub-postmistresses/managers of sub-Post Offices, who had been prosecuted for offences of dishonesty – the cases raised issues of abuse of process and safety of convictions having regard to concerns about the reliability of a computerised accounting system, “Horizon.” The Court of Appeal was satisfied, after considering those cases, that were significant problems with Horizon, which gave rise to a material risk that a shortfall in the accounts of a branch post office did not reflect missing cash or stock, but was caused by one of the bugs in Horizon.

It was also concluded that Post Office Limited (“POL”) were aware of such issues and had a duty to investigate reasonable lines of enquiry, to consider disclosure and make disclosure to the appellants of anything that might undermine its case. The Court of Appeal were also satisfied that POL had consistently failed to be open about the issues with Horizon and “steamrolled” any employee who tried to challenge its accuracy.

In July 2022, five appellants – who had all pleaded guilty to the offences of which they were convicted – contended that their prosecutions were an abuse of process and their convictions were unsafe for reasons similar to those which have led to the aforementioned appeals in the earlier cases. They all sought a long extension of time to apply for leave to appeal and leave to adduce fresh evidence. The cases were prepared on the basis of the principles established by the previous judgments. As a result, those who acted for POL concluded that they did not wish to resist any of the applications.

In respect of the individual cases:

Richard Hawkes – had noticed an escalating shortfall in his branch and accepted he had been concealing it. He noted that he could not make sense of it and expected it to decrease eventually. He felt embarrassed and inadequate so did not tell anyone about the discrepancy. Mr Hawkes pleaded guilty to five counts of false accounting and was sentenced to a community order and paid prosecution costs. POL accepts this was a case in which the reliability of Horizon was essential to Mr Hawkes’s prosecution and conviction. It did not appear that POL obtained any evidence to prove the shortfall other than reliance on the Horizon print-outs which had been obtained at the audit, despite Mr Hawkes maintaining he did not know the cause of the shortfall. The Court of Appeal ruled the convictions were unsafe.

Grant Ian Allen – falsely represented that his branch had more cash on the premises resulting in a shortfall of £11,705. He too could not account for the loss but accepted he concealed it, so pleaded guilty on that basis. Logs retained by POL demonstrated that Mr Allen reported the relocation problems (that had caused financial difficulties in his branch) and his concerns about the faults with Horizon. None of the evidence suggested that POL made any disclosure relating to Horizon reliability or that it provided Mr Allen with branch data. The Court of Appeal ruled the convictions were unsafe.

Jack Smith – pleaded guilty to four counts of false accounting and sentenced to a community order. An audit of his branch identified a cash discrepancy of £6,731.50 – he admitted to inflating the cash to cover cash account losses, but again, could not work out what had happened. Mr Smith even re-mortgaged his house in an attempt to made good the shortfall. Again, the Court of Appeal ruled the convictions were unsafe as there was no evidence that would have proved the fact of the shortfall other than Horizon evidence.

Duranda Clarke – had been recording greater amounts of cash in hand than were in fact present when completing final balances for her branch. She pleaded guilty to an offence of fraud and receive a suspended prison sentence. In this case, a discrepancy in the region of £40,000 had been found. Again, Ms Clarke had no idea what the problem was. Evidence of the shortfall served as part of the prosecution consisted of Horizon. There was no analysis or investigation undertaken in relation to the reliability of those records, nor does it appear that the disclosure requested by Ms Clarke in her defence statement was ever provided. Ms Clarke was entitled to disclosure of Horizon issues, given her defence and issues she had identified. The conviction was ruled unsafe.

Robert John Boyle – was charged with taking £11,790.54 in cash and pleaded guilty to an offence of theft. In this case, an audit of his branch identified the shortfall and he had approached the Field Support Advisor informing them of the same but being unable to provide an explanation, just that it appeared on Horizon. Mr Boyle had been inflating his cash on hand to conceal it. In interview, he stated he thought the system was causing discrepancies and had actually put his property on the market to make good the shortfall. Although Mr Boyle had made clear that the losses were unexplained and his defence statement placed Horizon’s reliability in issue, POL was under a duty to disclose any material which might have assisted Mr Boyle to advance his case. His conviction was unsafe.

POL accepted the prosecutions were unfair and an affront to justice and notwithstanding the guilty pleas, the Court of Appeal ruled those convictions were unsafe. The Court allowed the extension of time, granted leave to appeal, received fresh evidence, allowed the appeal and quashed the convictions.

Full Judgment: https://www.bailii.org/ew/cases/EWCA/Crim/2022/1197.html

2. Priestley, R. v [2022] EWCA Crim 1208
   Court of Appeal refused leave to appeal a sentence as unduly lenient in a historical sexual offences case. Age of offender at the time of the offence, impact on complainants and offender’s behaviour since the offence were considered. Consideration of the guidance provided by Forbes [2016] EWCA Crim 1388 and Limon [2022] EWCA Crim 39.

Mr Priestly was convicted at Bradford Crown Court of 11 sexual offences and in June 2022 was sentenced to concurrent terms of imprisonment totalling 32 months. HM Attorney General sought leave to refer his sentence to the Court of Appeal on the grounds of it being unduly lenient.

The sentencing judge had considered victim impact statements from the complainants, pertaining to issues of drug abuse, depression and difficulties in relationships. A pre-sentence report was also considered – Mr Priestly continued to deny the offences and denied any sexual interest in children. A number of character references from friends were also provided to the judge. Mr Priestly had suffered considerable trauma in his adult life and the judge took it into account as a mitigating factor. Specific references were made to:

• The offender’s age when he committed the offences – offending ceased in 1994.
• A blame free and largely untroubled life since then, apart from two minor offences in 1998.
•  
• Annex B of the Sentencing Council Definitive Guideline for Sexual Offences and Forbes [2016] EWCA Crim 1388.

The judge did not find any significant planning and there was no breach of trust, however, both complainants were vulnerable by reason of their youth and both suffered severe psychological harm. Noting the fact there were two complainants and taking into account the number of offences committed over a period of time, the judge concluded the appropriate sentence would have been 54 months – reduced to 32 months to take account of the offender’s age.

In considering the appropriateness of the sentence, the Court of Appeal noted that the indictment charged single offences. In line with the jury’s verdict, the judge had to reflect 9 occasions of sexual abuse over a 5-year period. Therefore, the way in which the indictment was framed means the Court cannot consider the application on the basis of a regular course of conducted repeated month after month. A further point in relation to the indictment is there was no proper basis upon which the judge could have concluded that the offender committed any offence after his 18^th birthday. For approx. 11 months of the indictment period, the offender was 17. The argument in relation to this was therefore an arithmetical error, so the only proper basis on which his sentence could be imposed was that he was at all times under the age of 18.

The Court of appeal was not satisfied that the sentence of the judge was “so far outside the reasonable range as to require [them] to interfere with it.” The judge was correct to use the current guidelines for sexual assault of a child under the age of 13 as the proper benchmark for the sentence. There then had to be an uplift from whatever the sentence after trial for a single offence within that guidelines, due to two complainants and multiple offences. Further, there were mitigating factors to be considered before any allowance for the offender’s age – which the Court of Appeal agreed were substantial.

The AG did not criticise the overall discount of 40% to take account of the offender’s age at the time of the offence. The most serious of the offending occurred when Mr Priestly was 14 or 15. Since the Court of Appeal were not persuaded that the judge erred in setting the notional adult sentence at 54 months’ custody, it followed that the eventual sentence of 32 months’ custody was not unduly lenient, so leave was refused. The judge’s approach was in line with Forbes. As was explained in Limon [2022] EWCA Crim 39, whilst the principles set out in the guideline (whether the SGC guideline or the current youth guideline) usually will apply when the offender is a young adult who has recently crossed the relevant age boundary, there is no reason why they should not apply when many years have passed between the offending and the date of sentence.

In terms of sentencing policy and identifying maximum sentences for young offenders when the legislative regime changed/changes, the Court of Appeal’s view, logic should prevail over pragmatism unless there are compelling reasons to the contrary. Where there are complications, a pragmatic solution has to be adopted. For instance, when considering one of the complainants in this case, the Court had to investigate whether at the time of the offending, an offender under 14 could be subject to any form of custodial sentence.

In Forbes, the reference to the youth guidelines indicates the Court had not considered paragraph 5.2 of the guideline and if it had done, it could not have said that the guideline was predicated on the basis identified. The Court of Appeal stated that the guidance in Forbes was designed to prevent a court dealing with historic sexual offences being required to consider the general level of sentencing current at the time of the offending many years before.

The Court of appeal stated it was not for them to speculate what the position would have been had the judge taken the approach suggested in Limon. “The legislative position in relation to this offender was significantly different to that which applied to the appellant in Limon.

Leave to appeal was refused.

3. Kadir v R. [2022] EWCA Crim 1244
   Court of Appeal ruled that Whatsapp was capable of being an “other arrangement” which could meet the definition of a live video link (s.56(2D) via which witnesses can give evidence, if in the interests of justice to grant such an application. The trial judge will make a make a fact-specific decision in the circumstances.

The appellant, Mr Kadir, was convicted of offences of rape, attempted rape and indecent assault. At trial, the prosecution called the three complainants as witnesses. The defence’s case was that the allegations were malicious to punish him and his family for a failure to transfer money and land due for looking after him when he arrived in the UK. The appellant called two witnesses, his estranged wife and a friend. The appellant also applied to adduce evidence from his half-brother in Bangladesh, but the judge refused his application.

The grounds of appealing the convictions challenged two rulings made by the trial judge in relation to the appellant’s half-brother. Initially, the defence sought for him to give evidence via CVP, which the judge appears to have agreed to. However, it was impossible to establish a satisfactory link. An application was then made under s.32 of the Criminal Justice Act 1988 for him to give evidence via a Whatsapp video call (no evidence of a written application). The Judge refused the application – the Court of Appeal was informed that the trial judge concluded that it would not be a safe and secure method of receiving evidence (again, no record of this).

An application was then made to adduce the statement as hearsay evidence. This was also refused due to the contents of it not being admissible as oral evidence.

Whatsapp

At the time of trial, two relevant statutory provisions were affected by temporary provisions introduced by the Coronavirus Act 2020 – s.32 of Criminal Justice Act 1988 and s.51 of Criminal Justice Act 1988 – so the focus of the appeal must be on the provisions in force at the time. Therefore, s.51 of Criminal Justice Act provided:

s56(2D) of CJA 2003 – 

“A ‘live video link’, in relation to a person (P) taking part in eligible criminal proceedings, is a live television link or other arrangement which – 

(a) enables P to see and hear all other persons taking part in the proceedings who are not at the same location as P, and 

(b) enables all other persons taking part in the proceedings who are not at the same location as P to see and hear P.”

Further, rule 3.2 of the Criminal Procedure Rules provides the Court was under a duty to further the overriding objective by actively managing the case, which includes making use of technology (rule 3.2(4)). The meaning of appropriate live links is explained in part 3N.3 of the Criminal Practice Directions.

In relation to an application for a live link for a witness in another country, it is necessary to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission of the other. The judgment in Agbabiaka explains that a request can be made to the Taking of Evidence Unit at the Foreign and Commonwealth Office, to enquire whether it is aware of any diplomatic or other objection from the country concerned to the providing of evidence by a live link.

The Court of Appeal concluded that, under the temporary provisions of s.51, the judge did have the power to direct that the appellant’s half-brother could given evidence from Bangladesh via Whatsapp, if satisfied that it was in the interests of justice to do so. Whatsapp was capable of being an “other arrangement” which could meet the definition of a live video link (s.56(2D) of Criminal Justice Act 2003). It uses end-to-end encryption so was sufficiently secure for use. A judge in similar circumstances today would also have the power to direct a live link via Whatsapp, thought it would be for the trial judge to make a fact-specific decision in the circumstances.

It was for the appellant, making the application, to provide the judge with all the requisite information, which they failed to do. Further, s.6C of the Criminal Procedures and Investigations Act 1996 was not complied with and there was no written notice of his identity at any stage. No steps were taken to establish whether Bangladesh were willing to permit a live link. No sufficient care had been taken to consider suitable arrangements in good time. “In those circumstances, the judge could not properly have concluded that the preconditions of a grant of leave under s51(4) of CJA 2003 – Her decision to refuse the application for a live link was therefore correct.” The first ground of appeal was rejected.

The applicant’s second submission in relation to hearsay was also rejected. The judge was entitled to conclude that it was not in the interests of justice for the statement to be admitted as evidence.

“49. … we emphasise the need for early consideration and preparation of any applications – whether by the prosecution or by the defence – for witnesses to testify from another country via a live link. The relevant statutory provisions and Criminal Procedure Rules must be complied with; appropriate steps must be taken to ascertain whether the foreign state concerned has any objection to a person within its territory giving evidence as proposed to a court in England and Wales; and the technical and practical arrangements must be tested in good time, so that alternative ways of adducing the evidence can be considered if necessary.”

Appeal dismissed.

Full Judgment: https://www.bailii.org/ew/cases/EWCA/Crim/2022/1244.html

4. Attorney General’s Reference on a point of law No.1 of 2022 (questions of law arising from prosecution in Crown Court for allegations of criminal damage to a statute) [2022] EWCA Crim 1259

Three questions of law arose from a trial in Bristol Crown Court of four protestors who were charged with criminal damage to a statue of Edward Colston. The issue concerns the extent to which the ECHR sanctions the use of violence against property during protest, rendering lawful damage which would otherwise be a crime.

One of the defences run at trial was whether conviction for the damage was a disproportionate interference with the defendant’s right to protest, which is the defence of which this reference is concerned. All four protestors were acquitted by a jury, so the basis on which they were acquitted is unknown. The questions for the opinion of the Court were:

• Does the offence of criminal damage fall within the category of offences identified in James v DPP [2016] 1 WLR 2118 and DPP v Cuciurean [2022] EWHC 736 where conviction is a justified and proportionate interference with any rights engaged under Articles 9, 10 and 11 of the ECHR?
• If not, and it is necessary to consider human rights issues in individual cases of criminal damage: what principles should judges apply when determining whether the qualified rights found in those Articles of the ECHR are engaged by the potential conviction of defendants purporting to be carrying out an act of protect?
• If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

 At trial, the judge dealt with this particular defence last in his route to verdict. The final question was: “are you sure that convicting the defendants of criminal damage would be a proportionate interference with their rights to freedom of thought and conscience, and to freedom of expression? If the answer was yes, then it would be guilty. The requirement for a conviction to be proportionate was treated as an additional, separate ingredient of the offence.

The Court considered the judgments in Curciurean and DPP v Ziegler [2022] AC 408, general measures of proportionality and the scope of the projection given to protest by ECHR rights.

In respect of the questions, the Court of Appeal concluded that prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the ECHR either because the conduct in question was violent or not peaceful, alternatively prosecution and conviction would clearly be proportionate. The offence of criminal damage encompasses minor or temporary damage. The Strasbourg case law suggests that prosecutions of that nature arising out of a protest require a case-specific assessment of the proportionality of conviction. The Court of Appeal expects that such prosecutions would not be launched because they would be a disproportionate reaction to the conduct in question. For example, scrawling a message on a pavement using water soluble paint might be sufficient for a criminal damage charge, but to prosecutor for doing so as part of a political protest might be a disproportionate response.

Therefore, the answer to Question 1 – criminal damage does not automatically fall within the category of offences within James or Cuciurean, where proof of the relevant ingredients of the offence is sufficient to justify any conviction as a proportionate interference, without the need for a fact-specific assessment. That said, the circumstances in which such an assessment would be needed are every limited.

In respect of whether an issue should not be left to a jury, the Court considered two principles:

• The judge may not direct a jury to convict – that is distinguished from circumstances in which a judge is entitled to withdraw an issue from the jury or where an issue does not arise on the evidence (so no direction is needed);
• A judge may withdraw an issue from the jury if no reasonable jury properly directed could reach a particular conclusion.

The ECHR does not provide protections to those who cause criminal damage during protest which is violent or not peaceful, so no question of proportionality arises in those circumstances. Prosecution and conviction for causing significant damage, even if inflicted peacefully, could not be disproportionate in ECHR terms. The Court of Appeal concluded that the issue should not be left to the jury because the conduct in question was not peaceful or the damage was significant, or both.

It is theoretically possible that cases involving minimal damage may arise in the Magistrates Court. Then, the Strasbourg case law suggests the conviction may not be a proportionate response in the context of protest. The Court of Appeal could not conceive that the ECHR could be used to protect from prosecution and conviction those who damage private property to any degree that is not trivial.

Prosecutorial discretion on whether to proceed to trial should be exercised carefully, applying the Code for Crown Prosecutors in the context of the principles in Articles 9, 10 and 11.

Full Judgment: https://www.bailii.org/ew/cases/EWCA/Crim/2022/1259.html