Crime Newsletter: Recent Case Summaries
February 24, 2022
SECTION 1: CRIME
Cristea  EWCA Crim 1597 (Noxious substances / intention / jury direction)
C and her co-accused O were convicted of murder and administering a noxious substance so as to endanger life. C was in a relationship with O. O contacted homosexual men via the dating application Grindr. He arranged to meet them at their home addresses so that he could drug them and steal their belongings. C was party to the plan. The drug administered was scopolamine, which is derived from a South American plant and can cause unconsciousness for long periods of time, even when administered in very small doses. It was submitted on behalf of C that the judge had misdirected the jury in relation to the knowledge which it was necessary for her to have about the effect of administering scopolamine. The judge said:
“But there is obviously a crucial additional question…that is Ms Cristea’s intent. Did she share Mr Osei’s intent, assuming he had it, to cause really serious harm? Now obviously she would have to know of the plan, she would have to know that scopolamine was to be used and she would have to know something of the potential effect of scopolamine. And you will have to judge that on all the evidence you have heard.”
It was submitted that this would have led the jury to believe that it would be enough to establish the necessary intent had C known something of the effects of scopolamine which might not involve the really serious harm of incapacitation but a lesser effect such as dizziness or drowsiness. The CACD rejected the submission. The judge had given a clear and correct direction on intention in the written direction and the route to verdict. The phrase relied upon “something of the potential effect” was after the jury were told that the question was “Did she share Mr Osei’s intent, assuming he had it, to cause really serious harm?”. In the next sentence, the judge said “If you are not sure that she shared his intent, assuming he had it, then you would need to consider the count of manslaughter against her”. In that context the court held that there was no danger that the jury might have thought that they could convict of murder if C only thought that the drug might do no more than cause drowsiness or dizziness. The judge was simply pointing out that C could not be a party to any joint enterprise if she had not known about scopolamine and its effects. It was only if the jury were satisfied that C was a party to such a plan that they could go on and consider her intent.
SECTION 2: EVIDENCE
Noor  EWCA Crim 1767 (s.34 inferences from failure to mention facts)
N was convicted of sexual assault. The prosecution’s case was that N sexually assaulted V when she fell asleep in his car. Initially in interview N had claimed that V was awake throughout the journey. N was shown CCTV footage of his car parked near V’s home for 15 minutes. He was specifically asked about whether she had fallen asleep and needed to be roused. He made no comment in relation to the CCTV or the specific questions. At trial, N gave evidence that V had fallen asleep and he had attempted to wake her on two occasions. A s.34 direction was given in the usual terms. N sought leave to appeal, submitting that no such direction should have been given. The CACD dismissed the application. The judge was unarguably entitled to give the s.34 direction. The fact that part of the prosecution case was that V had fallen asleep did not preclude the direction on the facts of the case – specifically N’s claim in evidence that he could not wake her but was trying to do so and hence parked near her home for approximately 15 minutes. The court acknowledged the line of authority holding that generally it is not appropriate to give a s.34 direction from a failure to mention a true fact that is part of the prosecution’s case. The court held:
“The jury were not being invited to consider drawing an adverse inference that he had fabricated the (true) fact that V had been asleep; rather it was being suggested that he had fabricated the suggestion that he had tried to wake her (twice), such that this might explain the 15 minutes spent by him in the street where [V] lived. The jury were being invited to draw the inference more generally that, because of the failure to mention the fact the [V] was asleep and that he attempted to but could not wake her, that the applicant’s version of events was untruthful. The suggestion was not that he was inventing the fact that [V] was asleep – the suggestion was that his failure to mention that she was asleep in interview and could not wake her raised the inference that (i) that it was not true that she had been asleep and he had tried but could not wake her and (ii) that his version of events initially was untrue and thereafter tailored to meet the prosecution case.”
SECTION 3: PROCEDURE
Khan  EWCA Crim 1526 (trial in absence / failure to follow procedure)
K was acquitted of harassment and sending messages with intent to cause distress or anxiety. He was made subject to a restraining order on acquittal prohibiting contact with the complainant for 10 years. The order was imposed in his absence. The hearing was specifically listed to address the restraining order. On the day, K emailed the court office stating that he was late because his train was delayed. The matter was put back to 11:00. At 11:10 the judge proceeded in his absence. K called the court on a second occasion and informed him that his arrival time would not be until 12:15. The judge was passed the message but continued with the hearing. K arrived shortly after the restraining order was imposed. K claimed that the delay was beyond his control. The judge refused to reopen the case. K appealed. The CACD quashed the order. The judge had correctly identified the correct test (R v Jones  UKHL 5) but had not adopted a procedurally fair approach. The Judge had not invited submissions from the prosecution or assessed the relevant factors before deciding whether to proceed in K’s absence. He failed to give a reasoned decision before deciding to proceed. K had been in communication with the court, was unrepresented, had possible mental health issues and the adjournment would have been for hours not days. The practical disadvantages faced by K rendered the hearing unfair. The unfairness was compounded when the judge refused to reopen the case to give K a chance to explain.