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This landmark decision was a successful appeal from the judgment of Dove J ([2023] EWHC 88 (Admin)) on the single issue of whether the National Crime Agency (“NCA”) misdirected itself when reaching the decision (i) not to investigate alleged offences under Part 7 of the Proceeds of Crime Act 2002 (“POCA”) and (ii) not to commence a civil recovery investigation under Part 5, in respect of certain cotton products brought into the UK alleged to be the product of forced labour and other human rights abuses.
The Appellant contended that when taking those decisions the Defendant had laboured under two fundamental misapprehensions, namely (i) that it is necessary to identify specific product as criminal property before commencing an investigation; and (ii) that the presence within the supply chain of a person who can rely on the exemption under section 329(2)(c) of POCA has the effect of “cleansing” criminal property so as to preclude its recovery, or the recovery of the proceeds of sale.
The court noted that it was well established that the decisions of an independent prosecutor or investigator would only be disturbed in highly exceptional circumstances: see R (Corner House Research) v Serious Fraud Office (2008) UKHL 60 at paragraphs 30-32. However, the discretion of decision makers was not unfettered; they must direct themselves correctly in law.
The challenge in this case was not advanced on Wednesbury principals. Rather, it was based on the alleged errors and misdirection in law. The Appellant contended that the Judge had nonetheless proceeded to deal with the matter on the basis that it was a rationality challenge. It was also contended that the Judge had reached the wrong conclusions insofar as he did address the substance of the challenge.
The NCA contended that it did not make the first error of law alleged, on a proper reading of the decision letter. It accepted the second error had been made but contended that it was immaterial and did not affect the substance or validity of its reasoning, namely that there was insufficient evidence from which to develop an investigation which had any prospect of bearing fruit. The Appellant accepted if that was the NCA’s reasoning, they would have been entitled to take that view.
Accordingly, this appeal turned on close analysis and the correct interpretation of the decision letter.
Sir James Eadie KC on behalf of the NCA frankly accepted that as a matter of law it would be wrong to refuse to commence an investigation under POCA because criminal property could not be identified at that time. Indeed, he contended that it would have been so obviously absurd to approach matters on the basis that that you needed to know the outcome of the investigation before taking a decision to commence it, it was highly improbable that the NCA had taken that approach.
Whilst recognising this as a powerful forensic point, the Court nonetheless concluded that, on the face of the decision letter, that was indeed the approach that was taken, and it was a clear misdirection in law.
Moreover, the Court did not agree that the second error within the decision letter was immaterial. That was the identification of a hypothetical individual within the supply chain who could rely on the exemption under section 329(2)(c) of POCA, which provides that a person will not commit an offence under section 329(1) “if he acquired or used or had possession of the property for adequate consideration”. In their view, this error appeared to play an important part in the decision-maker’s line of reasoning.
The judgment also noted that it was common ground there was a “diverse, substantial and growing body of evidence that serious human rights abuses are occurring in the XUAR cotton industry on a large scale”. Further that products derived from forced labour of the proceeds of sale could amount to “criminal property” for the purposes of Part 5 of POCA and “recoverable property” for the purposes of Part 7.
The Court agreed, and it seemed to be accepted by the parties, that the Judge had never directly identified the question whether the position expressed by the NCA in correspondence amount to an error of law.
It held that there was legitimate concern that the judgment endorsed the proposition that there is a need to establish criminal conduct or criminal property before an investigation under POCA can begin. In particular, the Court noted the submissions of the Intervenor “Spotlight on Corruption” that the judgment, if left undisturbed, would discourage the NCA, the police and other UK investigative bodies from commencing investigations into corruption, particularly where it occurs overseas, in the absence of concrete evidence of particular crimes carried out by particular persons. Spotlight also raised concerns at the suggestion that criminal liability or civil recovery was precluded where the proceeds of crime passed through several hands where adequate consideration was paid.
The Court confirmed that the proposition that, where the importer pays market value, they will not be tainted, was wrong in law. To the extent that the Judge accepted that at any point in a supply chain stretching many thousands of miles, the chain could be broken merely by using adequate consideration in any of the transactions involved, he was wrong to do so.
The Court held that there was force in the Appellant’s submission that the Judge had treated the challenge as if it were on the grounds of irrationality. More importantly, it was clear that the NCA had misdirected itself based on the two errors of law identified by the Appellant. The question of whether to carry out an investigation under Part 7 or part 5 of POCA was accordingly remitted to the NCA for reconsideration.
This judgment has significant implications for those trading in goods known or suspected to have been produced using forced labour or other human rights abuses, who may face investigation and prosecution even where adequate consideration has been paid. It has been hailed as a victory for those subjected to forced labour and human rights abuses.
Last month marked one year since the startling repeal of Roe v Wade on the 24th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.
Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here
On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.
BACKGROUND
S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.
The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.
In Government of the United States v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.
The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.
What happens when someone is convicted of a criminal offence and is given a custodial sentence? Sometimes, the individual will serve at least part of their sentence in prison and the remainder on licence. But, what happens after they’ve served the totality of their sentence?
Some convictions can, after a certain period of time, become “spent”. This means that anyone convicted of such offences is treated as never having been convicted of such offences. The Rehabilitation of Offenders (Northern Ireland) Order 1978 calls these people “rehabilitated persons”. However, the 1978 Order contains a large number of exceptions, so that some convictions can never become spent. JR123’s application for judicial review in the Northern Ireland High Court concerned one of these exceptions: sentences longer than 30 months.
Readers of this blog may be familiar with the changes in disclosure duties for criminal convictions which came about as a result of the cases of Gallagher, P, G & W v Home Secretary [2019] UKSC 3 (see Samuel March’s post on this topic). JR123 looks at another aspect of the framework of rehabilitation: the ability to be rehabilitated in law at all.
The facts
JR123 had been convicted of possession of a petrol bomb, arson, burglary and theft in 1980. Having been given multiple custodial sentences, he had been released from custody in 1982 and had served the remainder of his sentences on license. In the years which followed, JR123 had no further involvement with the criminal justice system. However, given the exceptions in the 1978 Order, his convictions could never be spent and thus he could never be rehabilitated. This was problematic on multiple fronts, particularly his employment prospects and personal life. Many things which we take for granted, for example applying for insurance, obtaining a mortgage, renting properties, and so on, become considerably difficult when having to disclose convictions which are almost 40 years old ([14]).
Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ([6]).
This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain [2002] 1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson. Continue reading →
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.
…..the graphic opening words of today’s decision by the Supreme Court in a defamation case. The next words are equally clear and arresting: ” What would those words convey to the “ordinary reasonable reader” of a Facebook Post?”
The context was a recently ended unhappy marriage between Mr Stocker (the Claimant) and Mrs Stocker (the Defendant), and a series of posts arising out of a Status Update by a Mrs Bligh (Mr Stocker’s new partner) in December 2015. Mrs Stocker and Mrs Bligh commented on each other’s posts for the next 2 hours 18 minutes. Mrs Stocker did not mince her words: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested.”
This was quickly followed by “wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me..”. This was a reference to an incident which had happened some 12 years before.
Mr S did not take kindly to this attempt “to blacken [him] in the eyes of his current girlfriend and belittle her”: as the Court of Appeal put it.
He sued. He won before the judge, and before the Court of Appeal.
This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie.
Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.
C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.
Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.
The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.
I and Diarmuid Laffan are giving a breakfast briefing this Wednesday 25 May from 8:30am to 9:30am on the aftermath in R v Jogee, the Supreme Court case on the law of joint enterprise in which we both acted as juniors.
The briefing is aimed at solicitors. We have a very few spaces left – if you would like to attend please emailevents@1cor.com as soon as possible.
The briefing will:
Explain key parts of the judgment, including the human rights arguments
Discuss how the case is likely to affect future cases and out of time appeals
1 Crown Office Row’s public law breakfast briefings are informal discussions of topical areas of public law. The briefings are short and to the point and discussion and questions are encouraged. The briefing will be chaired by 1 Crown Office Row’s Amy Mannion.
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
I have blogged before on the Pandora’s box of ethical problems and dilemmas emerging out of our increasing understanding of genetic disorders (see here, here and here), and here is a case that encompasses some of the most difficult of them. Continue reading →
X & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment
The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test.
Factual and legal background
X’s wife had been found murdered. The police took DNA from the crime scene. Some of the DNA belonged to X’s wife and some was found to be X’s. X was tried and convicted of his wife’s murder.
X’s wife had young children and they were taken into the care of the local authority. During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them. He refused to take a DNA test to prove his alleged paternity. The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test. The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so. Continue reading →
As prefigured on this Blog here, Keehan J has handed down a public Judgment explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.
The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.
Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.
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I and Diarmuid Laffan are giving a breakfast briefing this Wednesday 25 May from 8:30am to 9:30am on the aftermath in R v Jogee, the Supreme Court case on the law of joint enterprise in which we both acted as juniors.
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – 
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