Criminal Appeals Bulletin Archive
The DSC Criminal Appeals Bulletin is aimed at assisting those involved in appellate work in England & Wales, Northern Ireland and the Caribbean. In each edition we summarise and comment upon the latest appeal cases from the Court of Appeal (Criminal Division), the Northern Ireland Court of Appeal, the Privy Council, and from the Caribbean appellate courts. In editions 55 onwards the citations of the cases referred to are hyperlinked to the judgements.
The following archive list summarises the content of each issue with key words identifying the topics discussed. It is hoped that this will make it easier to identify a particular topic by using the search engine at the top of this page.
The list will generally contain cases in this order: CACD (Court of Appeal (Criminal Division), NICA (Northern Ireland Court of Appeal), JCPC (Judicial Committee of the Privy Council), SCUK (Supreme Court UK), ECtHR (European Court of Human Rights): Hong Kong, ECSC (Eastern Caribbean Supreme Court), CCJ (Caribbean Court of Justice) and the local appellate courts.
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Issue 1: Road traffic cases, Responsibilities of appellate lawyers, wrongly convicted refugees, fresh evidence, Gunshot Residue.
Issue 2: “loss of control”, whole life tariffs, disclosure of “in camera” material, criticising trial lawyers.
Issue 3: Sexual Offences Guidelines in historic cases, defence costs in the CACD, joint enterprise, vulnerable witnesses, appealing a guilty plea, the “right to silence”, hospital orders.
Issue 4: Joint enterprise, forensic expert, unfitness to plead, non-disclosure, compensation for miscarriages of justice, “second appeals”
Issue 5: Extended sentence, out of time appeals, abandoning an appeal, loss of time, disclosure requests by media, costs.
Issue 6: Defective indictments, prejudicial publicity, extreme old age as mitigating factor, criticism of trial counsel, data tampering at Randox.
Issue 7: Fresh evidence; ability to participate effectively in a trial, post-Jogee appeals, and post-sentence mitigating factors, NICA sentencing: gross negligence manslaughter, breaches of ASBO.
Issue 8: Indictment errors, jury irregularities, post-Jogee appeals, inappropriate judicial behaviour, impact of a sentence on the children of the offender, dangerousness in extended sentences, NI abortion laws and ECHR.
Issue 9: Manslaughter sentence appeals post Jogee, judicial interventions at trial, hospital orders, CCJ: admissibility of confessions.
Issue 10: Victim of “modern slavery”, post-Jogee appeals and autism, effective participation in a trial, duties of appellate advocates, bad character, mitigating factors; NICA: trial in absence of defendant, review of conviction following trial by judge sitting without a jury. ECSC: abuse of process, HKCFA: 2014 protest cases.
Issue 11: Jury irregularities, fresh evidence, self-defence in “householder” cases, prosecution appeals - respondent is unfit. Supreme Court of Bermuda: disparity of sentences; NICA: murder, specific Intent, self-Induced intoxication, accomplice, sentences for rape. Hong Kong: freedom of expression, non-refoulement claimants, increases in sentence on failed appeal, loss of time.
Issue 12: Digital media organization and “fake news” outlets, improper use of ABE transcripts, absent witness’s evidence, hospital orders, changes in the law, “unduly lenient”, AG references; NICA: post Jogee appeal following guilty plea, minimum terms for murder. Hong Kong: mens rea for bribery, aggravating factors in sentencing, costs application.
Issue 13: Retraction statements; good character, fresh evidence, “fundamental departure” post-Jogee, inconsistent verdicts; dangerousness. NICA: bad character. ECSC: jury vetting; Hong Kong: sentencing in civil disobedience cases, murder, provocation, accomplice witnesses.
Issue 14: non-disclosure, misdirection, mental disorder and loss of control, fresh evidence. Hong Kong: criticism of trial counsel, alternative defences, non-disclosure.
Issue 15: Trial proceedings declared a “nullity”, bad character, sentence for encouraging support for a proscribed organisation. NICA: sentencing causing gbh to a child; Hong Kong: hearsay, failure to leave defence case, sentencing investment scams, assistance to the authorities.
Issue 16: AG References and double jeopardy, magistrate’s court hearing and nullity, re-opening appeals. NICA: jury irregularity; ECSC: voice recognition, Turnbull direction; criminal lifestyle and conduct; Hong Kong: demonstrations, diminished responsibility, best evidence rule, sentencing drug offences.
Issue 17: Victims of modern slavery, criticism of trial counsel, Jogee, terrorism and article 10, preparatory hearings, venire de novo, sentencing mentally disordered offenders, top end drug conspiracies, tainted gift provisions of POCA. Hong Kong: sentences for unlawful assembly, robbery, increased sentences mandated refugee status. JCPC: fresh psychiatric evidence, diminished responsibility.
Issue 18: Improper cross-examination, fresh evidence, POCA and default orders; Hong Kong: lies, hostile witness, conspiracy to defraud. Court of Appeal of Bermuda: police destruction of evidence, abuse of process.
Issue 19: Unbalanced summing up, sentence for young offenders, manslaughter, AG references, POCA. Hong Kong: strict liability, conspiracy to defraud. CCJ: “Lusignan massacre”, prosecution appeals, “material irregularity”.
Issue 20: Anonymous witnesses, re-opening an appeal, Crown Court reporting restrictions; NICA: fresh evidence, confession statement. Hong Kong: criticisms of translator and trial counsel. CCJ: mandatory death penalty in Barbados unconstitutional.
Issue 21: Lane and Letts, Terrorism Act; self-defence and psychosis, intoxication, infanticide, alternative verdicts, fresh evidence, autism, non-state party and “entrapment”, victims of human trafficking, POCA; CCJ: re-opening an appeal. NICA: “contemporary standards of fairness”
Issue 22: Non-disclosure, inconsistent verdicts, “possession” of child pornography, contempt of court, NICA: breaches of Judges Rules. Scottish decisions: prosecution counsel’s prejudicial remarks.
Issue 23: CACD: unwell defendant, adverse inference, bad character. Hong Kong: retroactivity, unlawful assembly, drug trafficking, remorse. NICA: “unduly lenient sentence”;
Issue 24: Non-disclosure and abuse of process, loss of control, reconsidering confiscation orders. NICA: prejudicial prosecution closing speech. CCJ: hearsay. Hong Kong: sentencing drug possession.
Issue 25: Improper judicial interventions, Jury irregularities, Jogee misdirections, alternative counts, co-defendant’s guilty plea in a forgery trial, AG reference, prosecution appeal (abuse of process / non-disclosure); Hong Kong: sentencing for money laundering and drug trafficking. Cayman Islands Court of Appeal: re-opening an appeal.
Issue 26: Errors in indictments, fresh psychological evidence, terrorism and entrapment, sentencing for “fracking” protesters; Hong Kong: sentencing for drug trafficking; NICA: equivocal guilty pleas; The Bahamas’ Court of Appeal: alternative verdicts, good character direction, applications to extend time for appealing.
Issue 27: section. 55 Data Protection Act 1998; intermediaries, “lurking doubt”; Prosecution appeals, submission of no case; foldable cut throat razor = folding pocket knife ?
Issue 28: Jogee joint enterprise, house holder defence, sentencing historic sex offences, contradicting an agreed basis of plea. NICA: hearsay, res gestae; Hong Kong: ignorance of law, criminal damage caused by cyber attacks.
Issue 29: Adverse inferences, admissibility of “confession” evidence, joint enterprise, joinder, improper comments in prosecution speech, sentencing vulnerable under age victims of sex offences. NICA: DPP’s reference, suspended sentences, predicting dangerousness. Hong Kong: sentencing drug trafficking, GBH, abandonment.
Issue 30: Max Clifford (decd); “Jogee” joint enterprise, hearsay, discharging a jury, s.20 gbh, fresh evidence, retraction, Forced Compulsory Labour, hospital orders, IPP, mental disorder; AG reference; mitigation when fixing minimum term for murder; Hong Kong: sentencing credit card fraud, totality, loss of time directions.
Issue 31: Gross manslaughter, criticism of trial counsel, victims of trafficking, fresh evidence, inconsistent verdicts; discretionary life sentences, historic sex offences, youth of offender; private prosecutions, costs out of central funds;
Issue 32: Darroch v AG of Isle of Man, (time limits and confiscation orders); DNA.
Issue 33: Bad character, hearsay, jury questions, abuse of process, “potting” and noxious things, unfitness to plead, minimum terms for murder
Issue 34: Abuse of process in historic sex cases, coercive control, Sally Challen, wasted costs order.
Issues 35: McGuigan (“hooded men” interrogation used in Northern Ireland); admissibility of blood sample, s. 3A RTA 1988, RAF Court Martial; minimum term for youths convicted of murder, lifting of a reporting restriction.
Issue 36: Correcting miscarriages of justice, health and safety breaches.
Issue 37: Prosecution of corporations, good character, re-opening appeals, separate trials. NICA: credit for guilty pleas.
Issue 38: Abdurahman, Article 6 and safety test, Morrow v AG of NI (confiscation proceedings) impact of mental ill health on sentence.
Issue 39: Victim trafficking, “substantial injustice”, bad character, ECSC: attempted murder, joint enterprise, the proviso; NICA: historic sexual offences, Makanjuola.
Issue 40: Media reporting in CACD, hostile witness, fresh evidence, diminished responsibility; non-defendant’s bad character; hearsay, “particularly vulnerable” in Sexual offences Guidelines.
Issue 41: AG references, SOPO, fresh evidence in confiscation proceedings. NICA: right to anonymity for child, legal aid for leave to Supreme Court; High Court of Justiciary: application to exclude evidence.
Issue 42: George Pell, Booth and Barton (test for “dishonesty”), GBH sentencing guidelines, Covid-19 in prisons as a mitigating factor; sentencing guidelines and sexual offences, POCA. JCPC: unrepresented defendant in a capital trial, level of sentencing for murder. ECSC: criticising trial counsel and interpretation of Preddy.
Issue 43: Impact of COVID-19 on sentences; fresh evidence, sentencing children and young people, mental disorder, hospital and hybrid orders; Certificates of inadequacy.
Issue 44: Bad character, SOPO and SHPO; inconsistent verdicts, consent, multiple hearsay “confession” evidence; disclosure; guilty pleas as a result of judicial pressure; Victim of Human Trafficking; Drugs offences involving test purchase operations; health and safety appeal: Meaning of “Exempt facility”; ECSC: USI, corroboration warning, judicial interventions; JCPC: Antigua money laundering legislation.
Issue 45: ASD, discretionary life sentences and hospital orders, Rape, vitiating consent, vasectomy; bad character, juries and mistaken verdicts; diminished responsibility, adverse inferences; historic sexual offences; minimum terms and young offenders; AG reference, Health and safety appeals: Abuse of process; UKSC: Activities of “paedophile hunter groups” and article 8; CCJ grounds not raised below; ECSA: Goodyear, unrepresented defendants.
Issue 46: DNA, Gross negligence manslaughter, joint enterprise, bad character, Murder, minimum terms and young offenders; Waya; Hong Kong Safeguarding National Security, bail and habeas corpus
Issue 47: Abuse of process, discosure, exceptional leave and “change in law”, guilty plea
Issue 48: Pardons, RPM, Facebook and social media; CCTV identification evidence; Victim Trafficking, submission of no case, autrefois convict.
Issue 49: Covid and sentencing; JCPC: Remote hearings
Issue 50: Case stated, non-defendant bad character, Sentencing Guidelines mental disorders, POCA and “reasonable living expenses”.
Issue 51: Discretionary life sentences, “open conspiracies”, inconsistent verdicts, Article 10 and Communications Act 2003
Issue 52: Sentencing and mental illness, expert evidence, Encrochat, POCA
Issue 53: Procedural errors, “Shrewsbury 24”, Hamilton v POL, re-opening appeals
Issue 54: Sentencing child sex offences, credit for guilty pleas, Sentencing Guideline on drugs.
Issue 55: Review of the most significant conviction appeal judgements in 2021; severance, extension of time, absconding, criticism of trial counsel, fresh evidence, bad character, juror issues, challenging CCRC decisions: NICA: sexual offences, guilty plea, non-disclosure, abuse of process, alternative verdicts, circumstantial evidence, CCRC; Caribbean: recent complaints, proviso, retrials, non-disclosure.
Issue:56: Guilty pleas, Goodyear, historic sex offences and article 7, manslaughter, fresh evidence, hospital order, POCA and occupational pensions; UKSC: Terrorism and art 10; NICA: circumstantial evidence, bad character; CCJ: Rape, extension of time; JCPC: fresh evidence. Trinidad: Double jeopardy.
Issue 57: Hearsay, victim trafficking, fresh evidence, abuse of process, insanity, retrials, criticism of trial lawyers, fair trial, the mandatory death penalty in Trinidad, and gunshot residue evidence.
Issue 58: Law Commission proposals to review criminal appeal system; CACD: s.28 YJCEA, restrictions on cross-examination, AG’s consent to prosecute, Victim trafficking, hospital orders, whole life orders; SCUK: restraint orders; NICA: Abuse of process, bad character, sentencing appeals: JCPC: Bias; Caribbean appeals: Hostile witness, circumstantial evidence, decision to prosecute, manslaughter, bail. Challenge to mandatory death penalty.
Issue 59: False Identification documents/ refugee/humanitarian protection; Jury irregularities; Evidential issues: hearsay; bad character; non-disclosure/fresh evidence; Abuse of process: Post Office/Horizon; Drug importation: defences; AG reference: criminal damage/Colston statue; AG reference: murder/minimum term; Indeterminate sentences v Hospital orders; Extended determinate/special custodial; Basis of sentence; Sanctions in contempt cases; Anti-abortion protesters/proportionality; Historic convictions/fair trial v safety; NICA approach to sentencing appeals; Challenge to mandatory death penalty).
Issue 60: Facilitating the commission of a breach of immigration – guilty plea – asylum Procedure - Application for permission out of time – extensions of time; ‘Small Boats’– Arrival without leave – Facilitating breach of immigration law; Admissibility - Bad character - Co-defendants - Drug trafficking - Fresh evidence – Criticism of trial lawyers; EncroChat – applications for leave unsuccessful; attempt to challenge admissibility of evidence rejected; adjournments properly refused; Historic sexual offences – delay – loss of evidence – abuse of process – deceased applicant – approved persons; Approach to sentencing an adult for offences committed in childhood; Manslaughter – diminished responsibility; Attorney General’s Reference - manslaughter; Judge only trial – assessment of evidence – interference with findings of fact; Section 12 (3) Bahamas Penal Code – Proviso – Sentences murder/attempted murder; Delay – Motion to Quash Indictment – Jurisdiction with no right to trial within reasonable time – need to prove prejudice at common law – applicable principles; Summing Up – failure to give adequate direction on inconsistencies in complainant’s evidence and alternative offence; Sentence – Life imprisonment – Murder – Class of ‘worst murders’; Practice and Procedure – Appeal – Leave to Appeal – Special Leave – Criteria for granting Special Leave; Confession – Oppression - Admissibility of evidence - Consent; Magistrate’s court - Application for extension of time for leave to appeal.
Issue 61: CCRC reference - Fresh evidence – DNA – nondisclosure – s.14(4A) and (4B) CAA 1995 (arguing additional grounds not part of CCRC reference); ‘Child sex offences - Cross-examination - Extensions of time – Fairness – Historical offences - Jury directions – complainant distress – inconsistencies; Amending indictment following half time submission – alternative counts; Juror bias; Victims of Trafficking - Public Interest in prosecution; Appeal against a terminatory ruling; “Just Stop Oil” protesters – PCSCA – approach to sentencing; Sexual offences – lawfulness of no separate penalty – s.278 Sentencing Code; Proscribed groups – membership of a terrorist organisation – Guidelines – extended sentence; Unduly lenient sentence – absence of sentencing guidelines; Failure to discharge the jury – whether jury pressurised to reach verdicts Sentence – impact of imprisonment on elderly / ill health; Injunction to prevent gang-related violence or drug dealing - anti-social behaviour -Standard of proof; Mandatory minimum terms of imprisonment for juveniles; Correct approach under Bahamian law to the grant of an extension of time; Procedural fairness – delay – obtaining trial records – abandonment – interests of justice; Appeal against conviction – confessions – admissibility – absence of legal representation; Admissibility of Fresh Evidence – Provocation – Safety of Conviction – Substitution of Manslaughter; Directions on hostile witnesses – Good character direction – Credibility limb; Sentence - Manslaughter – use of inherently nonlethal weapon- whether sentence excessive; Applicant appealing against sentence;