Crime Team Newsletter – Sixth Edition
It is with great pleasure that I welcome you all to the December edition of the 33 Bedford Row Crime Team newsletter.
We have three excellent articles this month:
Nermine Abdel Sayed - “A guide to dealing with s28 pre-recorded cross examination cases”
Haydee Dijkstal - “Hafeez v UK: European Court of Human Rights considers whether Covid-19 restrictions to detention violate Article 3’s prohibition of torture and inhuman and degrading treatment”
Ylenia Rosso – “Sexual Harm Prevention Orders, Sexual offences Prevention Orders and Notification Periods: What are they, and how can you get rid of them?”.
We are also delighted to welcome to the Team, Jamila Bernard-Stevenson, who has accepted an offer of tenancy following the completion of her pupillage. She is a strong addition to our team and we wish her every success for the future.
2020 has certainly been a year with a difference! We would like to thank our friends and colleagues who have supported Chambers throughout the year.
Wishing everyone a happy and peaceful time over the Festive period.
[Head of Crime Team]
A guide to dealing with s28 pre-recorded cross examination cases
As of the 24th August 2020, the use of s.28 Youth Justice and Criminal Evidence Act 1999 (YJCEA) pre-recorded cross-examination for witnesses eligible on the grounds of age or incapacity has been rolled out to a further 16 Crown Courts, mostly across London and the South East. It is essential that all advocates are alive to the issues which present in these cases and are ready to deal with them by the PTPH hearing.
Witnesses eligible for the procedure must be correctly identified at an early stage. Indeed, as early on in the proceedings as the first appearance at the Magistrates’ Court, the prosecutor must formally notify the court that the case qualifies for s.28 pre-recorded cross-examination and advocates should record this on the ‘Cases Sent for Trial to the Crown Court’ form.
I hope that readers will find this to be a practical guide to navigating this new and very different approach to cross-examination in some cases.
A list of courts currently offering this special measure can be found here: https://www.gov.uk/government/news/section-28-for-vulnerable-victims-and-witnesses-in-crown-courts. It is expected that this measure will be in place in all Crown Courts in England and Wales by the end of this year. There is currently no provision for the use of s.28 in the Magistrates’ Courts.
The use of the s.28 special measure can significantly alleviate the stress associated with giving evidence for the eligible witness. The witness will no longer have to wait many anxious months until the trial and can put their testimony behind them much more quickly. The witness will not even have to attend the trial. Further, this measure can minimise any memory loss resulting from the passage of time. This is particular pronounced in young children, whose memories can fade very rapidly after an event.
So, the s.28 procedure can also preserve the quality of the evidence presented to the court.
It is a misconception that this is a measure which applies only to victims of sexual offences. The s.28 provision relates to the witness irrespective of the nature of the offence. Where the s.28 measures are already in place, they apply to witnesses eligible under s.16 YJCEA. A pilot is currently underway for intimidated witnesses (that is, witnesses in fear or distress about testifying, adult victims of sexual offences and witnesses in slavery or human trafficking cases, pursuant to s.17 YJCEA). S.16 YJCEA makes the following categories of witness eligible for the s.28 measure:
- those aged under 18 years;
- where the quality of the witness’s evidence is likely to be diminished because of a mental disorder (as defined by MHA 1983) or a significant impairment of intelligence and social functioning;
- those with a physical disability or suffering from a physical disorder.
In addition to the eligibility criteria, it a precondition that the s.28 cross-examination must follow an ABE interview. Where the evidence in chief has not been video recorded, it can still be done after the s.9 statement.
There are 4 stages to the s.28 process: the PTPH, the Ground Rules Hearing (GRH), the s.28 hearing itself and a Mention hearing thereafter. I will take each of these in turn below.
The PTPH form has a section dedicated to the s.28 procedure. At the PTPH, any eligible witnesses should be identified. The judge will then make directions for the service of any intermediary report, the Ground Rules Form and any application relevant to the cross-examination, such as a s.41 application, bad character, disclosure etc. The court will fix dates for the GRH and s.28 recording. A date for the witness to attend court for a familiarisation visit and to refresh their memory by viewing the ABE video should also be arranged, ideally for the day before the s.28 hearing.
The GRH should be held 7 days after Stage 2. Attendance of the defendant is desirable but for the intermediary it is obligatory. At this point all parties will have the Defence Statement and have completed the Ground Rules Form. The draft written questions should have already been sent to the prosecution and intermediary before a final version is sent to the judge. It is imperative that the questions are not seen by any other party so that the content does not inadvertently find its way to the witness.
The judge will scrutinise and vet the questions in line with the guidance given in the Advocates Gateway toolkits and the Inns of Court College of Advocacy ‘Advocacy and the Vulnerable: 20 Principles of Questioning’. As at any GRH, the Judge will make case-specific orders. Each case is unique and requires a tailored approach. The type of directions will range from breaks and communication aids to assigning topics to particular defence advocates in multi-handed cases.
The recording of the cross-examination will be conducted 7 days after the GRH. It should be listed first thing in the morning.
Often, the judge and advocates will be in the courtroom whilst the witness, usher and any intermediary remain in the video suite. There may be cases where it is more appropriate for the advocates and even judge to sit in the video suite with the witness if they are particularly young or have a vulnerability that requires it. This will have been considered at the GRH.
We have all had experience of witnesses who give unexpected answers in cross-examination. If this happens during a recording, best practice should be to take a break and to pre-prepare further questions which the judge can then consider. Such an eventuality can, to some extent, be anticipated when the defence advocate submits their written questions at the GRH. The questions can be drafted to so as to give alternatives depending on whether the answer given is affirmative or negative. For example, if the witness answers ‘yes’, the next question will be ‘abc’ and if the witness answers ‘no’ then the next question will be ‘xyz’.
It is important to note that since the s.28 hearing is treated as the first day of the trial, it is unlikely that the court will afford defendants any credit for guilty pleas tendered after the recording has been undertaken.
After the s.28 recording, the court will email the advocates’ CJSM accounts with a link to the recording, which is stored in the cloud. The recording should be checked, amongst other things, for quality and audio. This will avoid the scenario in the case of R v PMH  EWCA Crim 2452, where the body and lower face of the complainant were not visible on the recording! At a Mention hearing 14 days later, the Court will seek confirmation that the recording is satisfactory. Any editing of the recording must be first approved by the judge and raised at this stage. Should there be any legal submissions pertaining to the content of the recording then again, this should be raised at the Mention hearing.
LEAVE FOR FURTHER CROSS-EXAMINATION
No subsequent cross-examination of the witness can take place without further direction from the court. In the event that a relevant matter comes to light after the recording has been conducted, possibly as a result of disclosure which follows the s.28 hearing, the defence must make an application to the court. The court will only grant leave where the defence have only become aware since the original recording of a matter which they could not with reasonable diligence have ascertained by then or if it is in the interests of justice (s.28(5) & s.28(6) YJCEA). Such an application must be served in writing at least 28 days before trial (18E.53 of the CPR 2015).
For obvious reasons, it is imperative that the same advocate conducts the GHR, s.28 hearing and the trial. 18E.59 CPR 2015 stipulates that continuity is obligatory except in exceptional circumstances. This can be difficult to effect where counsel have busy diaries. However, even where an advocate is part heard in a trial, they should be permitted to leave (and the trial paused) for half a day or so in order to conduct the s.28 hearing. The starting point is that s.28 cases take priority. Liaison between judges can facilitate this.
An explanation should be given to the jury as to why the questioning has been conducted in this way, so that they do not hold it against the defendant. The case of R v PMH clarifies that the standard special measures direction together with a direction on the limitations on cross-examination imposed by the judge and the reasons for them should be given before the cross-examination is played. The jury should be reminded of this during the summing up and it should form part of any written directions given to the jury.
In recent years there has been a sea change in the way that the Criminal Justice System deals with vulnerable witnesses. It is right and proper that these witnesses are a primary consideration throughout the life of the case, from case management to trial. S.28 pre-recorded cross-examinations and the limitations which the court will place on the questioning are here to stay. It is worth reiterating the conclusion of the Court of Appeal in the case of PMH: “Much of the argument advanced…appeared to be a thinly disguised attack on the use of pre-recorded cross examination. Whatever his views or the views of others, Parliament has provided for this procedure in section 28 of the YJCEA and those who are accustomed to it report that, if operated properly, it can work well. It does not undermine the defendant's right to a fair trial.” Early and thorough preparation is the key to the successful conduct of the s.28 cross-examination.
Nermine Abdel Sayed
Hafeez v UK: European Court of Human Rights considers whether Covid-19 restrictions to detention violate Article 3’s prohibition of torture and inhuman and degrading treatment
The global Covid-19 pandemic has immeasurably impacted justice systems world-wide with one aspect of importance being how the restrictions and measures taken to prevent the spread of the virus have impacted the rights of accused individuals in detention. Therefore, it is of interest that a case involving the UK Government was communicated in March 2020 to the European Court of Human Rights which raises questions about conditions of detention during the pandemic and how these conditions affect a detained person’s Article 3 rights under the European Convention on Human Rights.
The case concerns a sixty-year-old man who was arrested in London in August 2017 pursuant to a request from the US Government for his extradition on charges the manufacturing, distributing and importing Class A drugs. The detained applicant is described as having “a number of health conditions”, including diabetes and asthma, which therefore place him among those at risk of suffering severe symptoms of the virus.
The Applicant’s arguments in regards to Article 3 of the European Convention are two-fold and were first presented at his extradition hearing at Westminster Magistrates Court in 2018. The Applicant argues that Article 3, which relates to the prohibition on torture, and provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, would be violated should he be extradited to the
 European Court of Human Rights, Hafeez v United Kingdom, Application no. 14198/20, 19 March 2020, paras. 1, 2.
 European Convention on Human Rights, Art. 3.
United States because 1) pre-conviction and post-conviction conditions of detention in the United State would likely amount to inhuman and degrading treatment in violation of Article 3; and 2) the “real risk that he would be sentenced to life imprisonment without the possibility of parole” would similarly violate the provision.
The Applicant’s arguments in regards to his conditions of detention due to Covid-19 restrictions are of particular note, and although the facts of this case involve conditions of detention in the United States, the ECtHR’s assessment is likely to have implications as to the legality of Covid-19 restrictions and measures under Article 3 in prisons in the UK and other European States.
For example, the ECtHR case cites evidence given in the Applicant’s extradition proceedings in London in which a US Attorney submitted that the Applicant’s conditions of detention in the US would include being “kept in solitary confinement for twenty-three hours a day; remain under constant video surveillance; and have ‘no view of the outside world.’” Based on this, the District Judge considered whether there was evidence that the Applicant would be held in inhuman and degrading prison conditions. Although District Judge declined to make such a finding, with the High Court affirming, the decision was not because the alleged conditions – including of 23 hours of solitary confinement per day – were found to be in compliance with the prohibition against torture and inhuman and degrading treatment, but because the evidence presented in the extradition proceedings were found to be inconclusive of an Article 3 violation.
Therefore, the question of whether such conditions of detention is in violation of Article 3 of the European Convention is now presented before the ECtHR with “particular regard to the ongoing Covid-19 pandemic” and how it affects conditions of detention.
It is notable that conditions of detention which involve prolonged solitary confinement raise concerns in regards to protections against psychological torture and inhuman and
 European Court of Human Rights, Hafeez v United Kingdom, Application no. 14198/20, 19 March 2020, para. 3.
 Id., at para. 4.
 Id., at para. 6.
 Id., at ‘Questions to the Parties, Q2.’
degrading treatment for which the UK is obligated to safeguard, such as protections outlined within the Universal Declaration of Human Rights and the UN Standard Minimum Rules for the Treatment of Prisoners, also known as the ‘Mandela Rules.’ While Article 25 of the Universal Declaration of Human Rights provides that “everyone has the right to a standard of living adequate for the health and well-being”, the Mandela Rules tie prolonged solitary confinement to “restrictions or disciplinary sanctions [which may] amount to torture or other cruel, inhuman or degrading treatment or punishment”; and as such prohibit indefinite and prolonged solitary confinement.
In February 2020, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment “voiced alarm at the excessive use of solitary confinement” in the United States, and noted that such treatment can violate the prohibition against torture and inhuman and degrading treatment given that “[t]he severe and often irreparable psychological and physical consequences of solitary confinement and social exclusion are well documented and can range from progressively severe forms of anxiety, stress, and depression to cognitive impairment and suicidal tendencies.” Prolonged solitary confinement has been consistently assessed by UN Special Rapporteurs as “deliberate infliction of severe mental pain or suffering”, and as possibly “amount[ing] to psychological torture.”
It is for this reason that the United Nations and human rights organisations have strongly urged States to take all necessary steps to protect people in detention and “consider supervised release and other non-custodial alternatives for detained individuals who are at high risk of serious effects from COVID-19.”
 Universal Declaration of Human Rights (UDHR), UN General Assembly resolution 217 A (1948); United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), A/C.3/70/L.3 (2015).
 UDHR, Art. 25.
 Mandela Rules, Rule 43.
 United States: prolonged solitary confinement amounts to psychological torture, says UN expert, 28 February 2020.
 US: COVID-19 Threatens People Behind Bars, Human Rights Watch, 12 March 2020; and Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, Office of the High Commissioner for Human Rights, Press Release, 25 March 2020.
Given that reports have indicated that UK Covid-19 restrictions and measures aimed at reducing the spread of the virus within the prison population mirror those within the United States complained of by the Applicant, the question to be considered by the ECtHR as to these measures’ compliance with Article 3 is of particular note. Reports indicate that Covid-19 restrictions in UK prisons have included prisoners “being locked in their cells for 23 hours a day”, and have resulted in the decline of some prisoners’ mental health and well-being.
The case is now at a stage whereby the parties, including the UK Government, have been asked to respond to questions raised as a result of the Applicant’s communication; including whether Covid-19 restriction may affect the Applicant’s Article 3 rights. Although the EctHR’s ultimate finding in this case will raise questions as to its reach given the contrast between complaints of Article 3 violations in domestic cases versus extraterritorial cases involving the conduct of a state removing a person to another territory, it is a nonetheless a case to watch given that the Court’s decision on whether Covid-19 restrictions which see the instances of prolonged solitary confinement could open the door to complaints before the ECtHR as to the UK own policies and restrictions in prisons.
Sexual Harm Prevention Orders, Sexual offences Prevention Orders and Notification Periods: What are they, and how can you get rid of them?
A Sexual Harm Prevention Order (SHPO), previously known as a Sexual Offence Prevention Order (SOPO) is a civil order prohibiting an individual from doing anything described in the order. It is an order made against any person who is found to have committed an offence under Schedule 3 or 5 of the Sexual Offences Act 2003 (the Act).
Its aim is to protect an individual and the general public from sexual harm. A SHPO lasts for a minimum 5 years and can be indefinite, or “until further order”.
Case law establishes that terms in either order must be necessary for such protection and proportionate.
The ‘Smith Principles’; Necessity and Proportionality
SHPOs and SOPOs must be necessary and proportionate. Further the terms included therein must be clear, understandable and specific enough to ensure the person subject to the order does not breach the terms accidentally.
When an order is imposed to prevent risk of harm arising from the potential commission of sexual offences, the risk must be real, not remote. In assessing whether prohibitions in a SOPO meet the requirements of the ‘necessity test’ a Court must ask:
i) Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences?
ii) If some order is necessary, are the terms proposed nevertheless oppressive?
iii) Overall are the terms proportionate? (R v Smith  EWCA Crim 1772)
An offender becomes subject to notification requirements by virtue of sections 80 and 82 of the Act. Section 82 sets out a table where the length of a notification period is matched against the length of a custodial sentence. Anyone convicted of a term of imprisonment for 6 months or under is subject to a notification period of 7 years. A custodial sentence lasting between 6 to 30 months attracts a notification period of 10 years. Any custodial term above 30 months attracts an indefinite notification period.
Extended license periods and notification periods
When calculating the length of the custodial sentence, any extended licence period is to be included. This was confirmed in the case of R v Wiles  2 Cr App R (S) 88. By way of example, if somebody is sentenced to a custodial sentence of 6 months or less they would also be subject to a notification period of 7 years. However, if a 42-month extended period of supervision if included in the sentence, the overall sentence spans well over 30 months and therefore attracts a notification requirement period that is indefinite.
The Court in R (on the application of Martyn Minter) (Claimant) v Chief Constable of Hampshire Constabulary and Secretary of State for the Home Department,  EWHC 1610 (Admin) clarified that, for the purposes of determining the notification period under the Act, the whole of the term of an extended sentence constituted the term for which a person was "sentenced to imprisonment". Mr Minter was subjected to an extended sentence of 4½ years , comprising a custodial term of 18-months and an extension period of 3 years. the court record following sentence referred to a 10-year notification period. The defendant Chief Constable decided, however, that the Mr Minter was subject to the requirements for an indefinite period, based on the 4½ year term of the extended sentence. Mr Minter contended that that the decision of the Chief Constable is based on a mistaken construction of the statute and that the true notification period is one of 10 years, based on the 18-month custodial term comprised within the extended sentence. On this basis, Mr Minter brought judicial review proceedings against the Chief Constable, but lost. The ruling in Minter confirmed that the ruling in Wiles is binding.
SOPOs, SHPOs and indefinite notification periods
Section 107(3) (re SOPOs) and section 103G (re SHPOs) provide that where either order has effect, the notification period is to run for a term matching the length of the order.
Example: Take an offender who is subject to a custodial sentence of 24 months, but an indefinite SOPO or SHPO. Ordinarily, once convicted, this defendant would be subject to a 10-year notification period; but because of the indefinite term of the SOPO, that notification period is now indefinite.
Arguably, this is not within the spirit of the Smith Principles, as explained hereunder:
In Smith, The Court, at paragraph 17, made this important distinction: “Notification requirements and the conditions of a SOPO are generally two different things. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them.”
Importantly, the Court said: “We entirely agree that a SOPO must operate in tandem with the statutory notification requirements. It must therefore not conflict with any of those requirements. Secondly, we agree that it is not normally a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by law. Absent some unusual feature, it would therefore be wrong to add to a SOPO terms which although couched as prohibitions amounted in effect to no more than notification requirements, but for a period longer than the law provides for.”
Reviewing Notification Periods
In R (on the application of F & Angus Aubrey Thompson) -v- Secretary of State for the Home Department  UKSC 17; the Supreme Court declared that indefinite notification periods are incompatible with Article 8 of the human Rights Act if they are not subject to a review mechanism. Subsequently, the following review mechanism came into force:
Section 91A of the Act creates a mechanism for a qualifying relevant offender to
make an application to the relevant chief officer of police for a determination that he is no longer subject to the indefinite notification requirements.
The “relevant offender” is qualified when, according to s. 91A2, “... on the
date on which he makes an application for review, is—
(a) subject to the indefinite notification requirements; and
(b) not subject to a sexual offences prevention order under section 104(1)
or an interim sexual offences prevention order under section 109(3).”
What happens to those who do not qualify as a “relevant offender”? Take the person described above, who is subject to a 24 month custodial sentence, and would therefore normally be subject to a 10 year notification period; but for an indefinite SHPO or SOPO, is found in an unusual situation where he is not a qualifying offender. The only way around this is to apply to the same Court that created the order to vary or discharge the SOPO or SHPO.
The general rule is that the length of time for which an SHPOs is to have effect should be limited. In R v McLellan  EWCA Crim. 1464 , it was held that an SHPO should not be made for an indefinite period, (1) unless the court was satisfied of the need to do so, (2) that it should not be made without careful consideration or as a default option; and (3) the court should justify the making of an order.
Varying or Discharging a SOPO or SHPO
An application to discharge a SOPO can be brought under s.108 of the Act. The application is made on the basis that it is no longer necessary or is now disproportionate. Often this is due to a material change in circumstances. For example, a previous offender is no longer at risk of reoffending. This would have to be supported by an expert report confirming the applicant no longer poses a risk of reoffending. Similarly, a SHPO can be varied under section 103E of the Act.
Each case is of course fact specific. An argument can be made without an expert report to state that the order is no longer proportionate or ‘Smith compliant’. A typical case is that of an offender found in the situation set out in the above example. S/He may be subject to an indefinite SOPO established long before the rulings in Smith, McLellan or the Supreme Court ruling.
It is imperative, that no matter how long ago the SOPO or SHPO has been established, it should be reviewed. It may just be that your client is subject to a term no longer necessary or proportionate and would benefit from applying for review.