Issue 173  19th December 2020

We have before us three applications. Bowers and Cole apply for leave to appeal against their convictions of the offence of manslaughter, their applications for leave having been referred by the Registrar to the full Court. Her Majesty's Attorney-General applies for leave to refer the sentences on all three offenders as being unduly lenient. Long, Bowers and Cole apply for leave to appeal against their respective sentences. The Registrar has referred those applications to the full Court...

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline. That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.

... In practical terms the minute of the SCA decision will be introduced by an agreed fact – which of course is what apparently happened in this case. That route involves an acceptance that the decision is admissible...

...We consider that the District Judge was entitled to receive and admit the findings of the SCA as evidence that M had been recruited and harboured such that he had been trafficked within the meaning of the 2015 Act and that he was a victim of criminal exploitation. The SCA decision maker had expertise in relation to those issues. The judge was entitled to consider the findings and assess the extent to which they were supported by evidence. Insofar as appropriate, she would have been able to reduce the weight she gave to the findings. However, that is a question of weight rather than admissibility. In fact, the SCA decision was based on a proper evidential foundation and it was not contradicted by other material available to the judge...

...The weight of a conclusive grounds SCA decision will vary. The prosecutor will be in a position to assess the weight of the decision just as the prosecutor can assess the weight of other evidence relevant to the issue of a defendant's status as a victim of trafficking or exploitation. The decision made by a prosecutor as to whether the defendant has satisfied the evidential burden and, if so, whether the prosecution can disprove the statutory defence will depend on an assessment of all of the available material. As the facts of this case amply demonstrate, a conclusive grounds decision will not be determinative in the criminal context any more than it is in tribunal proceedings...

This is an appeal against conviction by Kate Scottow, aged 39. On 7 February 2020, after a trial in the Magistrates' Court at St Albans, she was convicted by District Judge Margaret Dodd of one offence of improper use of a public communications network, contrary to section 127(2)(c) of the Communications Act 2003. This provides that a person commits an offence if "for the purpose of causing annoyance, inconvenience or needless anxiety to another [she] … persistently makes use of a public electronic network". Ms Scottow now appeals by way of case stated...

...In short, I do not consider that under s 127(2)(c) there is an offence of posting annoying tweets. I would reach that conclusion as a matter of domestic statutory interpretation without reference to the Human Rights Act, but once one takes Article 10 into account the position is even clearer... This appeal illustrates the need for decision-makers in the criminal justice system to have regard, in cases where they arise, to issues of freedom of speech. In that context I add by way of footnote that when reading the judgment of Nicklin J in Hayden v Dickenson, which Warby J has cited, I was surprised to read at paragraph 39 that the defendant, who like Ms Scottow had been arrested following a complaint made by Ms Hayden, was released on pre-charge bail, one condition of which was that she was "not to post on social media anything relating to the Claimant" [emphasis added]. It will have to be decided in some other case whether a condition of this kind can be justified under Article 10 or s 3(6) of the Bail Act 1976...

Each Appellant has been granted leave to appeal against sentence. A ground of appeal common to a number of appeals concerns totality. This particular ground raises a point of interest from a procedural perspective. It arose from the fact that in the lengthy sentencing remarks about the position of each defendant, no specific reference to totality was made. The judge did however make a brief and general reference towards the end of the sentencing remarks, to the effect that she had taken totality into account in relation to each defendant...

First, whether a judge has applied totality is a question of substance and not form. The fact therefore that the judge made a single generalised statement towards the end of her sentencing remarks to the effect that she had considered totality is perfectly adequate... Second, in relation to totality, the Totality Guideline makes plain that the purpose behind a judge taking totality into account is to ensure that the final sentence is just and proportionate. During argument there were suggestions that a judge should expressly use the expression "just and proportionate". We disagree. There is no magic in words...