Issue 190  24th April 2021

The whole conduct of the prosecutions was based upon the constant assertion that the Horizon data was reliable and that the money must have been stolen, or at least a shortfall dishonestly concealed. The appellants were denied the material which could have been used to question that assertion... In those circumstances, we are satisfied that a fair trial was not possible in any of the “Horizon cases” and that Ground 1 accordingly succeeds in each of those cases...

In those circumstances, the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court. By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred.

He did not attend as required but was represented by junior counsel. His case was sent to the Crown Court for trial under section 51 Crime and Disorder Act 1998 ("CDA") and he was granted bail. This application is solely concerned with his non-appearance on that date and whether the magistrates' court has the power to send an absent but represented defendant for trial in the Crown Court pursuant to section 51 CDA and, if not, whether the subsequent proceedings are invalid for want of jurisdiction...

In our judgment, it all depends on the language used in the relevant statutory provision, and on this basis the section 51 and section 17A procedures are not analogous. As just set out, for the latter there is clear and absolute requirement for the accused to be present, unless the disorderly exception applies (section 17B). Under the section 17A procedure the indications then given by the defendant have immediate and mandatory consequences for the next stages in the proceedings. These include – if a not guilty plea is indicated – considering whether the case is more suitable for summary trial or trial on indictment (section 19 MCA) and, if the former, whether the accused consents to summary trial or wishes to be tried on indictment (section 20 MCA). The accused may ask for an indication as to sentence, and if one is given, he or she has the opportunity of revising the earlier indication as to plea. With section 51, there is no such express requirement for the accused to be present and there is a process based, not on primary legislation, but on the current version of the Criminal Procedure Rules, that simply gives the accused the opportunity of indicating his or her plea, which, depending on the answer, will lead the magistrates to make certain administrative decisions...

We have no doubt that section 122 permits the accused to be absent for the purposes of a case being sent to the Crown Court under section 51... It is to be stressed that whether the accused is to be present or absent is a matter for the court to decide.

The issue for the jury in this case was whether the burglary of a hotel room was a burglary of a dwelling... It was the Crown's case (as the judge reminded the jury) that every hotel room in which the witness stayed was a home from home (and so, we infer, a dwelling)...

We consider it unlikely that there will be many instances where facts such as those in this case will be considered by a jury. For that reason, our observations on the factors which may have assisted the jury should be confined to the facts of this case. We are satisfied that, contrary to the defence submission, the judge could and should have explained to the jury what a dwelling is. It would have been sufficient to say a dwelling is a building or part of a building in which a person is living and makes his/her/their home. The most usual examples of dwellings are houses and flats in which people live and make their homes. Other buildings or parts of buildings may be dwellings. This should have been followed by a list of the features to which we have referred which the jury may have considered pointed towards or away from the room being a dwelling. The judge told the jury on a number of occasions that the decision about whether the room was a dwelling was a matter for them, but the failure to put before them a balanced account of the features which pointed away from the hotel room being a dwelling while focussing entirely (and not just principally) on what the guest generally did when she was in a hotel room rendered the summing up unfair.

These six cases have been listed together because they raise a particular aspect of the correct approach to be taken when sentencing certain offences against children under the Sexual Offences Act 2003 ("SOA"), namely when no sexual activity takes place, for instance, because i) the child is a fiction, ii) the defendant failed to persuade the child to engage in sexual activity or iii) the offender was thwarted...

This decision will end the rigid distinction between those cases where particular sexual activity takes place and those cases where the defendant, for instance, does everything he is able to bring that sexual activity about but for reasons beyond his control it does not materialise. The sentencing judge should make an appropriate downward adjustment to recognise the fact that no sexual activity occurred, as demonstrated by the court in Privett (at [67]). Furthermore, we consider this approach should apply to all of the offences set out in [5] above when the defendant attempts to commit these offences or incites a child to engage in certain activity, but the activity does not take place. The harm should always be assessed in the first instance by reference to his or her intentions, followed by a downward movement from the starting point to reflect the fact that the sexual act did not occur, either because there was no real child or for any other reason. The extent of downward adjustment will depend on the facts of the case. Where an offender is only prevented from carrying out the offence at a late stage, or when the child victim did not exist and otherwise the offender would have carried out the offence, a small reduction within the category range will usually be appropriate. Where relevant, no additional reduction should be made for the fact that the offending is an attempt. But when an offender voluntarily desisted at an early stage, and particularly if the offending has been short-lived, a larger reduction is likely to be appropriate, potentially going outside the category range. As indicated in Privett at [72], it may eventuate that a more severe sentence is imposed in a case where very serious sexual activity was intended but did not take place than in a case where relatively less serious sexual activity did take place.