Court of Appeal (Criminal Division) judgments, 2021

A statutory minimum sentence may be avoided where, viewing the case as a whole, particular circumstances relating to the offence or offender make it unjust.…

Where imprisonment is unavoidable, the decision whether to suspend the sentence remains a fact-sensitive assessment of whether immediate custody is necessary…

For an offence under section 25 of the Immigration Act 1971, the prosecution must prove that the facilitator knew, or had reasonable cause to believe, that the…

In a complex criminal trial, directions on cross-admissibility, propensity, coincidence, good character and hearsay must be clear, coherent and tailored.…

Section 78 of the Police and Criminal Evidence Act 1984 addresses the fairness of criminal proceedings, not the personal-safety consequences of otherwise…

A restriction order under Mental Health Act 1983 section 41 may be necessary for public protection despite expert medical opinion that a hospital order alone…

Disclosure under the Criminal Procedure and Investigations Act 1996 must enable an accused to present a tenable case in its best light. The prosecution must…

A sleeping complainant is not automatically particularly vulnerable for sentencing purposes. The assessment depends on the circumstances, including the…

A conviction founded on an apparent branch shortfall is unsafe where the reliability of Horizon data was essential to the prosecution, there was no independent…

When fixing minimum terms for young offenders convicted of murder, a court must give real weight to age, maturity and rehabilitation. Sentencing Act 2020…

Under section 23 of the Criminal Appeal Act 1988, fresh evidence should be admitted only where this is necessary or expedient in the interests of justice. The…

The second limb of section 993(1) of the Companies Act 2006 criminalises carrying on a company’s business for any fraudulent purpose. It is not confined by…

A later diagnosis of ASD or ADHD does not by itself make a conviction unsafe. The appellate court must identify the issues at trial to which the fresh evidence…

A judge need not leave an unadvanced defence to the jury unless there is evidence which, if accepted, would prima facie establish it. A defence with no factual…

A discretionary life sentence remains available at common law for an offence outside the statutory life-sentence provisions, but it is a sentence of last…

Evidence of a non-defendant’s bad character is admissible under section 100(1)(b) of the Criminal Justice Act 2003 only where it has substantial probative…

A sentence under s.236 A of the Criminal Justice Act 2003 is indivisible. It must be imposed for each qualifying offence and comprises custody and an extension…

Evidence of controlling or coercive behaviour that is probative of consent and reasonable belief in consent may form part of the facts of a rape allegation…

For a secondary participant in a knife murder, the weapon starting point in Schedule 21 does not automatically apply merely because the participant became…

For a suspended sentence, the operational period should reflect the sentence length. An operational period of up to 12 months will normally be appropriate for…

A direction under section 34 may properly address an accused's failure in interview to mention a trial account which goes beyond a fact accepted or advanced by…

An erroneous or redundant question in a jury’s route to verdict does not necessarily make a conviction unsafe. The route must be assessed with the oral and…

A conviction is not rendered unsafe merely because a serving police officer sat on the jury without the trial judge having been told of that occupation. The…

An alternative verdict should be left to a jury only where it is an obvious and viable issue on a reasonable view of all the evidence, including the defence.…

At a sentencing hearing following a guilty plea, the prosecution must identify the factual basis on which sentence is sought, but need not adduce trial-quality…

Directions on murder must require the jury to be sure that a secondary party intended that the victim should suffer really serious harm. A reference to the…

Where an offender is dangerous and the statutory conditions for a life sentence are met, the court must impose a life sentence. In choosing between a life…

A commercial robbery may properly be classified as professionally planned even where its execution is unsophisticated, if it involves a significant degree of…

In confiscation proceedings, a pecuniary advantage based on avoided costs or tax must be assessed by reference to a coherent lawful counterfactual. The court…

A risk-of-harm case does not automatically require movement to a lower harm category under the environmental offences sentencing guideline. The sentencing…

A court sentencing an offender who pleads guilty must follow the relevant guilty-plea guideline unless departure would be contrary to the interests of justice.…

The totality principle requires the court, where offences committed before an earlier sentence are sentenced later, to consider the sentence that would have…

In sentencing under a definitive guideline, the court must first select the category which most closely resembles the offending by reference to the guideline’s…

Where a theft sentencing guideline assesses harm principally by the value of goods, the court must not apply it mechanistically if monetary value is of little…

A conviction following an unequivocal guilty plea is unsafe only on limited grounds. Complaints about the evidence, mitigation, alleged procedural unfairness…

On an appeal against sentence, the question is whether the sentence as a whole is manifestly excessive. A substantial delay in bringing an offender to justice…

Under the speciality regime in the Extradition Act 2003, a court lacks jurisdiction to proceed on an offence which the European Arrest Warrant does not…

An allegation that a robbery victim is a paedophile does not establish hostility based on sexual orientation under the robbery sentencing guideline. It cannot…

Hearsay from an unavailable foreign investigator may be admitted where the statutory gateway is met, its reliability can be tested by other available material…

Where Criminal Justice Act 2003 s.243(2) applies, the sentencing court must specify the number of days for which an offender was held in custody awaiting…

The totality principle requires the sentencing court to assess the sentence that would have been imposed had related offences been dealt with together, and to…

On an application to extend time to seek leave to appeal, the proposed ground must be arguable. Evidence explaining why police officers attempted to stop a…

On an appeal involving fresh evidence, the Court of Appeal must decide for itself whether a conviction is safe. The likely effect on a jury is a useful check…

Evidence about a complainant’s appearance or presentation is relevant to reasonable belief about age only if it could have influenced the defendant’s belief at…

Under section 35(1)(b) of the Criminal Justice and Public Order Act 1994, the question whether it is undesirable for a defendant to give evidence requires a…

A Brown direction is required only in comparatively rare cases. It is needed where jurors may rely on different factual bases, each capable of constituting an…

Secondary liability for murder does not depend on proof that an accessory’s encouragement or assistance caused the principal’s act. An overwhelming supervening…

Fresh expert evidence should generally be admitted where it is credible and fresh, unless it could have no effect on the safety of the conviction. Credible…

A ruling terminating a section 4A procedure for an accused found unfit to stand trial is sufficiently connected with the indictment to be a ruling in relation…

Where a child is convicted in the Crown Court, the duty under section 25(2) of the Sentencing Act 2020 to remit the case to the Youth Court unless remission is…

For causing death or serious injury by dangerous driving, the prosecution need not prove that the dangerous driving was the sole or major cause. It suffices…

Fresh evidence may be admitted on appeal where it is capable of belief, might afford a ground for allowing the appeal, would have been admissible at the…

When considering an unduly lenient sentence, the court may reflect the increased severity of custody during the Covid-19 pandemic and exceptional delay before…

In criminal proceedings, a trial judge should ordinarily determine identification-evidence admissibility from the disclosed material and submissions. A voir…

Where the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 applies, a court fixing the minimum term for a discretionary life…

An Attorney General’s sentence reference should not be allowed merely because the sentence was lenient. The court must decide, in all the circumstances…

A conclusive grounds decision of the Single Competent Authority is an administrative assessment. It is not, merely because of the decision-maker’s role…

For causing death by dangerous driving, seriousness must be assessed by reference to the definitive Guideline’s determinants of seriousness. Driving at nearly…

Where distinct offences form part of the same factual narrative, sentencing must avoid double counting while producing a total sentence that reflects the…

A post-acquittal restraining order under Protection from Harassment Act 1997 may be made even where the prosecution has offered no evidence. It is a civil…

On a retrial following a successful conviction appeal, the restriction in paragraph 2(1) of Schedule 2 to the Criminal Appeal Act 1968 is assessed by comparing…

On an appeal involving fresh evidence, the court must assess whether that evidence affords a ground for allowing the appeal, viewed against the trial evidence…

A misdirection about an ingredient of an offence does not inevitably make a conviction unsafe. The appellate court must assess the real issues at trial and…

Gang-related evidence may be admitted as evidence of motive where it is relevant, probative and sufficiently connected to the offence. Evidence of events said…

Fresh evidence in a criminal appeal should be admitted under the Criminal Appeals Act 1968, s 23(1)(c), where it is capable of belief, would have been…

In sentencing for manslaughter by reason of diminished responsibility, the degree of retained responsibility is an overall assessment for the sentencing judge…

For unlawful act manslaughter, high culpability may be established where the unlawful act involved an intention to cause harm falling just short of grievous…

A notice abandoning a criminal appeal may be treated as a nullity only where it did not result from a deliberate and informed decision. The categories of…

When sentencing for multiple serious offences, a judge may make a significant upward adjustment, including outside the category range for a single offence, to…

When sentencing following a guilty plea, the court must sentence on the accepted basis of plea. It cannot increase the sentence to reflect matters outside that…

A sentencer may treat an offender’s failure to obtain medical assistance for a gravely injured victim as an aggravating feature. This does not amount to double…

For a prosecution appeal against a terminating no-case ruling, the question is whether the evidence, taken at its highest, could enable a properly directed…

In sentencing for breach of a sexual risk order, a court may make measured use of the guideline for breaches of sexual harm prevention orders. That guideline…

A sentencing court may apply the controlled-drug guideline to a conspiracy to convey prohibited items into prison where agreement to supply a Class A drug is…

On an application relying on fresh evidence, the Court of Appeal must determine for itself whether the conviction is unsafe. The factors in section 23(2) of…

Under the Criminal Attempts Act 1981, whether conduct is more than merely preparatory is a fact-sensitive question. The court must determine whether the…

Voice identification evidence is not inadmissible merely because it is based on a short utterance or a lay listener. Risks affecting reliability are ordinarily…

A legally represented accused may be sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 without being physically present. Section 122…

A dwelling is an ordinary English word meaning a building or part of a building in which a person lives and makes their home. Whether accommodation is a…

Where a prosecution depends upon computer-generated accounting data, the prosecutor must investigate reasonable indications that the data may be unreliable and…

For guilty-plea credit, the critical question is when the defendant indicated an intention to plead guilty, not when the plea was formally entered. An…

When an offender provides information to the police outside a formal statutory agreement, any additional sentencing reduction depends on the information’s…

A conviction following a guilty plea is ordinarily safe. An appeal against conviction is confined to whether the conviction is safe and is available only in…

On an appeal against sentence, the Court of Appeal will be slow to interfere with a trial judge’s evaluative assessment unless there is a clear and principled…

In a retrial, admitting convictions for closely connected offences may be lawful, but the defendant must retain the statutory opportunity to prove that those…

Where there is sufficient evidence that voluntary intoxication may realistically have prevented formation of the specific intent required for an offence, the…

For the greater-harm category in the sentencing guideline for wounding with intent, a sustained or repeated assault must be sufficiently prolonged or…

Evidence of a complainant’s previous sexual behaviour in a sexual-offence trial is admissible under section 41(5) of the Youth Justice and Criminal Evidence…

When sentencing sexual offences against children where no sexual activity occurs, the court must assess harm by reference to the sexual activity the offender…

In a cut-throat joint trial, an important matter may arise between co-defendants even if neither expressly alleges that the other committed the offence, where…

In sentencing for unlawful act manslaughter, bringing a knife to the scene may be treated as a separate and significant aggravating factor where the features…

When sentencing a child by a Youth Rehabilitation Order, later offending cannot be treated as aggravating the offence being sentenced. A curfew may serve…

A sentencing judge need not give expansive reasons, but must engage adequately with the major elements of the sentencing exercise. This includes explaining the…

On a renewed application for leave to appeal against conviction, proposed fresh evidence must be assessed for its material effect on the safety of the…

In sentencing for wilful neglect of a vulnerable person, culpability must reflect the offender’s individual role. A manager who fails to report a superior’s…

Sentencing must reflect totality where several offences form one course of conduct. There is no inflexible rule requiring concurrent or consecutive sentences.…

A breach of a planning enforcement notice under section 179 may be a continuing offence. A summons which identifies the date by which compliance was required…

For fraud by abuse of position under the Fraud Act 2006, the prosecution need not establish strict property-law ownership. It must prove dishonest abuse of a…

Section 25 of the Immigration Act 1971 may apply where a person facilitates an asylum-seeker’s breach or attempted breach of immigration law. Section 25A does…

Bad-character evidence may be relevant to an important matter in issue where a defendant says that a fatal stabbing was accidental. A previous deliberate knife…

Section 66 of the Courts Act 2003 gives the judicial office holders listed in it the original jurisdiction of a District Judge (Magistrates’ Courts) in…

Charges described to a jury as alternatives do not necessarily prevent a retrial on one count after a conviction on the other. The bar applies to true…

On an application to introduce fresh evidence in a criminal appeal, the power under the Criminal Appeal Act 1968 is broad and may include evidence available at…

Lay evidence from a witness and the witness’s mother may establish cognitive impairment. The absence of expert or medical evidence does not make that evidence…

In a sentencing appeal, the guideline range is not an inflexible ceiling. A sentence above that range may be justified by cumulative aggravating features…

Where a defendant pleads guilty to a new count close to trial, credit depends on when the defendant first communicated a willingness to plead, rather than…

In sentencing an offender aged 18, youth and maturity remain relevant; attaining 18 does not create a cliff edge. Competing culpability factors must be…

For affray sentencing, culpability may properly include an inferred intention to cause fear of very serious violence, assessed from the conduct and surrounding…

On an appeal against historic convictions, statutory law is applied as it stood at trial, but the common law and standards of procedural fairness are applied…

An appellate court may revise an order it has pronounced while it remains unissued, unsealed and unrecorded. That power should be exercised where…

When sentencing an offender whose mental disorder substantially contributed to manslaughter, the court must consider whether a penal element is appropriate and…

In confiscation proceedings under the Proceeds of Crime Act 2002, the statutory assumptions require a fact-sensitive judicial assessment. They may be displaced…

A sentencing court must determine the basis of manslaughter left open by a murder acquittal. If sure of a particular basis it must sentence on that basis; if…

The Court of Appeal may review, under section 36 of the Criminal Justice Act 1988, a final sentence imposed after a period of deferred sentence has expired.…

A prior witness statement is not admissible under section 119(1) of the Criminal Justice Act 2003 merely because a hostile witness remains silent after giving…

A victim’s act will break the chain of causation only if it is a free, voluntary and informed decision. A significant deception by an accused may prevent that…

Sentencing for offences involving official secrets must give pre-eminent weight to national security, deterrence and the actual or potential harm caused. Once…

The statutory test for a sexual harm prevention order requires necessity and proportionality, both when deciding whether to make an order and when fixing its…

Section 40 of the Health and Safety at Work Act 1974 places a legal burden on an accused to prove that it was not reasonably practicable to do more than was…

In sentence appeals concerning a large and multi-defendant drugs conspiracy, the sentencing judge will ordinarily have a substantial advantage in assessing…

In an application to adduce fresh evidence concerning dishonesty, evidence about impaired mental functioning will not assist where it does not affect the…

A single previous conviction may demonstrate propensity where its circumstances have probative force in relation to an important issue, even without striking…

In an Attorney General’s reference, the question whether a sentence is unduly lenient must be decided on the material available to the sentencing judge. A…

Where an application for permission to appeal against conviction is substantially out of time and the proposed grounds are wholly without merit, the court may…

An alleged factual mistake by a sentencing judge does not automatically justify appellate intervention. The applicant must show that the mistake materially…

A defendant relying on the statutory defence to possession of an indecent image must prove, on the balance of probabilities, both that they did not see the…

In sentencing for controlling or coercive behaviour, harm must be assessed by weighing all the circumstances. The court may draw a common-sense inference that…

In gross negligence manslaughter, where a victim ingests a dangerous substance, causation turns on whether the prosecution proves that the victim did not make…

Paragraph 14(1) of Schedule 22 to the Criminal Justice Act 2003 gives the Court of Appeal an unusual and limited review jurisdiction for certain transitional…

A prejudicial remark or gesture by one juror does not automatically require discharge of the whole jury. The trial judge must address the incident on its facts…

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, a sentence may be increased only where it is unduly lenient. That…

In sentencing a repeat Class A drug supplier, the drug guideline must be applied on a sliding scale, rather than as hard-edged categories. Previous closely…

In a trial involving multiple complainants, evidence relating to one complainant may be relevant to counts involving another, but its use cannot be left to the…

On a renewed application for leave against sentence, leave may be granted where the sentencing judge’s reasoning leaves it genuinely arguable that substantial…

On an appeal relying on fresh evidence, the Court of Appeal must decide whether receiving it is necessary or expedient in the interests of justice under…

In a joint-enterprise case, mere presence does not amount to participation. The jury must be sure that a defendant assisted or actively encouraged the offence.…

In an appeal against sentence, the appellate court must respect the sentencing judge’s factual findings unless there is an obvious error of approach or…

A trial judge must fairly put the substance of each defendant’s case to the jury. A wholesale failure to summarise a defendant’s evidence will ordinarily…

On a sentence appeal alleging manifest excess, the appellate court will not interfere where the sentence falls within the permissible range after proper…

For the 30-year starting point in paragraph 5(2)(e) of Schedule 21, a murder must involve sexual or sadistic conduct. Sexual or sadistic motivation may be…

A criminal trial should be stayed for abuse of process on mental-health or suicide-risk grounds only in exceptional circumstances. The decisive questions are…

Questions about a complainant’s sexual orientation or identity may constitute “sexual behaviour” under Youth Justice and Criminal Evidence Act 1999, section 41…

A sentencing court must determine the appropriate determinate custodial term by reference to seriousness, mitigation and applicable sentencing law. It must not…

A Goodyear indication does not prevent a subsequent undue-leniency reference. Defence counsel must advise an offender of that possibility, and a prosecutor’s…

Fresh evidence may justify quashing a conviction where it materially changes the assessment of identification evidence. Evidence linking an object found at the…

The Court of Appeal may exceptionally reopen a concluded criminal appeal where reopening is necessary to avoid real injustice, the circumstances are…

Fresh evidence will not ordinarily be received under section 23 of the Criminal Appeal Act 1968 unless the statutory considerations are satisfied. A purported…

An excepting direction removing a child defendant’s reporting anonymity after conviction is amenable to judicial review because it is collateral to the trial…

A very long extension of time for a criminal appeal requires a good explanation for delay and merits sufficiently compelling to justify the exceptional course.…

When setting a minimum term for murder under Criminal Justice Act 2003 Schedule 21, the court must assess overall seriousness by balancing all relevant…

For robbery under section 8(1) of the Theft Act 1968, force need not be applied directly to the victim. Indirect force may suffice where an offender pulls…

Suspending a custodial sentence requires a qualitative assessment of the factors for and against suspension, rather than a simple count of factors. On appeal…

Where a charge under section 9 of the Sexual Offences Act 2003 turns on whether the defendant reasonably believed that a child was 16 or over, the prosecution…

A lengthy extension of time for appealing against sentence requires a good reason for the delay. The merits of the proposed appeal must also be arguable. A…

An appeal against a conviction following a guilty plea will be permitted only in exceptional circumstances. An error concerning other counts does not make the…

On a renewed application for leave to appeal against sentence, an alleged sentencing error does not justify intervention where it could not reasonably have…

An appellate court will dismiss a sentence appeal unless the sentence is manifestly excessive. A sentencing judge may properly take a stern view of planned…

In an Attorney General’s reference against allegedly unduly lenient sentences, the Court of Appeal held that a finding that an offender is dangerous does not…

An extended determinate sentence may be necessary for public protection where there is a well-founded assessment that an offender presents a high risk of…

A serious medical condition or reduced life expectancy does not ordinarily justify appellate interference with an otherwise appropriate sentence. The…

A court may permit a defendant to change a guilty plea before sentence, but it must exercise that discretion judicially. A guilty plea gives rise to a nullity…

In sentencing for causing serious injury by dangerous driving, the causing-death guideline is a useful reference point, but individual cases remain…

A notice abandoning a criminal appeal is irrevocable unless it is a nullity. The decisive question is whether the abandonment resulted from a deliberate and…

In an appeal against sentence for repeated low-level Class A drug supply, the court should identify the guideline category and role, adjust for the number of…

A decision whether to suspend a custodial sentence requires a sensitive balancing exercise. The court must identify and weigh all applicable factors favouring…

In a reference alleging that a murder sentence was unduly lenient, the appellate court must respect the trial judge’s assessment of evidence where the…

Where an adult is committed for sentence under section 4 of the Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court may be confined to…

Section 45 of the Modern Slavery Act 2015 is not retrospective. The statutory defence is available only for offences committed after it came into force on 31…

For the purposes of Investigatory Powers Act 2016, a communication is stored when it is held in or by the telecommunications system at the time of extraction.…

An unequivocal and deliberately intended guilty plea ordinarily prevents a conviction appeal. A conviction founded on a voluntary admission in open court is…

On a sentence appeal, the court may move above a sentencing-guideline category range where the aggravating features make the case sufficiently serious. A very…

Expert psychological evidence may assist a jury only where it has a proper medical basis and explains how a recognised mental disorder affects a defendant’s…

For breaches of notification requirements and sexual harm prevention orders, sentencing must address culpability and the risk of distress under the applicable…

An adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 is unavailable where a defendant advances no facts at trial…

When fixing a custodial sentence, a sentencing judge should ordinarily disregard the potential release date prescribed by Parliament. If an error about release…

Where interview lies and a later failure to mention defensive facts concern distinct issues or have different explanations, a trial judge may give separate…

Evidence is not ordinarily excluded under Police and Criminal Evidence Act 1984, section 78 merely because an identifying witness is open to a strong…

An expert may be competent through practical experience and general expertise even without formal qualifications. The expert must remain within the field of…

When deciding whether to suspend a custodial sentence, the court must balance the relevant guideline factors. Strong personal mitigation and a realistic…

When sentencing a child or young person, the court must adopt an individualistic approach focused on the offender, rehabilitation and welfare. The young…

Where potentially relevant digital material is unavailable because a complainant refuses access, the question is whether the trial process can nevertheless…

Section 1(2)(b) of the Aviation and Maritime Security Act 1990 implements the Montreal aviation-security regime and must be construed in that setting. A device…

For the notification regime in the Counter-Terrorism Act 2008, a person has a “right to use” a vehicle where they have control, management or lawful operation…

Under Criminal Procedure Rules 2015, Rule 3.29(4), separate trials are not required where offences form a series of the same or similar character and joinder…

When fixing the minimum term for a discretionary life sentence under Powers of Criminal Courts (Sentencing) Act 2000, section 82A(3)(c) requires comparison…

Defence advocates must advance their client’s factual case, but they are not a mouthpiece for instructions about forensic conduct. A mid-trial withdrawal for…

A trial judge should leave the partial defence of loss of control to the jury only where the evidence, assessed rigorously as a whole, could reasonably support…

Expert evidence must be relevant, based on identified facts, and directed to matters outside ordinary judicial knowledge. A general account of a condition…

Under rule 48.9, procedural safeguards for contempt proceedings arise only when a party makes a properly characterised allegation, or the court begins dealing…

On a conviction appeal, the Court of Appeal must determine every ground necessary to decide whether the conviction is unsafe. It may, however, allow an appeal…

In an alleged open conspiracy, an accused may be convicted of conspiring with persons unknown even where every named alleged co-conspirator is acquitted. The…

In applying the intimidatory offences Sentencing Guideline, whether persistent action has occurred over a prolonged period is a fact-sensitive question. A…

In sentencing for stalking and other intimidatory offences, culpability factors in the guideline must be read comparatively across the categories. Persistent…

For sentencing an assault occasioning actual bodily harm under the Offences against the Person Act 1861, “greater harm” requires injury serious in the context…

A defective or insufficiently structured summing-up does not make a conviction unsafe if, read as a whole, it fairly places the essence of the defence before…

Where a hospital order may be available for an offender with a mental disorder, the court must assess the need for treatment, the disorder’s contribution to…

Where a convicted defendant seeks to advance a wholly different factual account on appeal, leave will be granted only exceptionally. The new account must be…