One ITL, the Chambers of Marion Smullen, are delighted to announce that with effect from 1st January 2017 we will be merging with the Chambers of William Mousley QC at 2 Kings Bench Walk.
March 19, 2012
Firearms case where expert in second trial (defendant's acquitted) was relied on by defendants from first trial (defendant's convicted) to demonstrate a particular gun was not responsible for a killing.
ection 23 of the Criminal Appeal Act 1968 deals with applications to admit evidence on appeal, including fresh evidence;
Section 23 applies to expert evidence but the section was not framed with expert evidence in mind;
The crucial test is whether it is either necessary or expedient in the interests of justice to receive the evidence;
The Court must consider whether a) the evidence is capable of belief; b) the evidence may afford a ground for allowing the appeal; c) whether the evidence would have been admissible in the Court below; d) whether there is a reasonable explanation for the failure to adduce the evidence in the Court below.
Save in exceptional circumstances the Court will not permit an appeal to be mounted on an expert case which could and should have been advanced before the jury;
Save in the rarest of circumstances the Court will not permit the same expert case to be advanced with a different expert;
Save in exceptional circumstances the Court will not permit further expert evidence where that was available to the defence at first instance but they chose not to deploy it because it assisted the prosecution in whole or in part.
Where a jury have convicted of manslaughter by reason of the partial defence to murder of provocation it is possible for a court to pass one of the sentences for public protection prescribed in the Criminal Justice Act 2003;
However the sentencing judge must be faithful to the jury's verdict and the following assumptions must be made in sentencing:
The offender, at the time of the killing lost control; mere loss of temper or jealous rage is insufficient;
The offender was caused to lose control by things said or done, normally by the person killed;
The offender' loss of self-control was reasonable in all the circumstances, even bearing in mind that people are expected to exercise reasonable self-control over their emotions.
Mr Brook had no previous convictions and there were no other factors present than the lead up to the offence (which the jury had found constituted provocation).
As such to find Mr Brook dangerous was to go behind the jury's verdict.
At first instance the judge held that acute voluntary intoxication was not a recognised medical condition so as to give rise to a partial defence of diminished responsibility. Mr Dowd's appealed on the grounds that it should have been left to the jury;
As a general legal proposition a defendant cannot rely on voluntary intoxication save in the limited question of whether a 'specific intent' has been formed;
That rule of law has not been altered or departed from by parliament explicitly and Parliament would have undoubtedly made its intention explicit if it intended to do so;
Section 2 of the Homicide Act 1957, (diminished responsibility) as amended requires a 'recognised medical condition'.
Acute intoxication (whether through drugs or not) is a 'recognised medical condition' according to the ICD-10 (a comprehensive medical listing adopted by the WHO)
However the comprehensive medical lists of such conditions were not written into the statute (ICD-10, DSM-IV);
The presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility;
If a condition is transitory or temporary that may be relevant to whether it is a recognised medical condition for the purposes of the Act;
Voluntary acute intoxication (whether through drink or drugs) is not capable of founding diminished responsibility.
The appellant uploaded videos onto the internet which the Crown contended encouraged the commission of terrorism. The videos showed attacks on Coalition forces in Iraq and Afghanistan by insurgents. After retirement the jury asked questions including whether such attacks were terrorism. The judge responded that they were and that is the issue for this appeal.
The definition of 'terrorism' in section 1 of the Terrorism Act 2000 is a broad one;
It includes actions by insurgents against the armed forces of a state anywhere in the world;
The definition includes actions which seek to influence a government and are made for political purposes;
International law did not yet include a state practice which restricted the scope of terrorism so that some types of insurgents attacking the armed forces of a government were exempt from the definition;
Whilst two asylum cases had held that military action against armed forces of the government did not necessarily involve acts of terrorism the decisions were not made following detailed argument and the cases were not applying section 1 of the terrorism act
A right of access to the Courts under Article 6 of the ECHR is not absolute;
A restraining order (under the Protection from Harassment Act 1997, section 5) could prohibit the bringing of civil proceedings against the victim where they were brought with the sole purpose of causing that person vexation, anxiety and annoyance;
As such the CPS decision to discontinue proceedings for breach, by the defendant, of that order by instituting civil proceedings against the claimant was flawed by error of law because the decision was based on the fact that the proceedings would fail as they prevented the defendant's right of access to the courts;
Article 8 (privacy and family life) and Article 10 (freedom of expression) did not confer an absolute right to obtain publicly available information about oneself;
So a prosecution based on the prohibition within the order on 'retrieving or storing any information in any media or form whatsoever' relating to the claimant, whilst it may also have meant that the defendant could not obtain publicly available information about himself, was not bound to fail. That decision, of the CPS, was also flawed;
The failure to prosecute violated the claimant's rights under Article 8 and she was entitled to damages of £3,500.