Legal Developments 2019

Legal Developments 2019

Legislation

Note that the Firearms (Fees) Regulations 2019 (SI 2019 No. 1169) will come into force on the 1st October 2019 [Link]

Note the Misuse of Drugs Act 1971 (Amendment) Order 2019 (which will come into force on November 15, 2019) [Link]. The Order is (at first blush) unusual in that it aims to reduce the number of synthetic cannabinoids controlled under the MDA. It is not clear (without expert assistance) which synthetic cannabinoids will no longer be controlled. However, non-controlled synthetic cannabinoids may – if capable of having a psychoactive effect – fall within the Psychoactive Substances Act 2016.

Note the Human Medicines (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No. 775) [Link] which will come into force on “exit day” (in the event that the UK withdraws from the EU). The Regulations heavily amend the Human Medicines Regulations 2012 (and also amends the Medicines (Products for Human Use) (Fees) Regulations 2016.

Cases

R (on the application of Miller) and Cherry and oths [2019] UKSC 41 [link]

The issue in the case was whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. The UKSC posed four questions as follows:
(1) Was the issue of the Prime Minister’s advice to the Queen justiciable in a court of law?
(2) If it was, by what standard was its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?
The Court answered each question (in summary) thus:
(1) Yes.
(2) “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course” (at [50]; per Lady Hale and Lord Reed).
(3) No.
(4) The Court declared that Parliament had not been prorogued.
COMMENT
At para.55 of the judgment, the Court said (emphasis added):
“The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons – and indeed to the House of Lords – for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.”
It is submitted that the words italicised were not intended to mean – as an article in The Spectator appears to suggest [link] – that a Government (especially a minority government) may formulate policy and implement that policy in the manner of its pleasing. Policies are those approved by Parliament. The Government is accountable to Parliament for the actions that the former takes.


R v Veysey [2019] EWCA Crim 1332 [Link]

In conjoined appeals, the appellant or applicant in each case had been prosecuted for an offence, contrary to section 24 of the Offences Against the Person Act 1861, of unlawfully and maliciously administering a noxious thing with intent to injure, aggrieve or annoy. The Court of Appeal (Criminal Division) held (at [26], emphasis added) that “where an issue arises as to whether a substance is a noxious thing for the purpose of section 24 of the 1861 Act, it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition. In the present case, the judges below were entitled to find that a cupful of human urine, from an unknown source, thrown at the face of a victim is capable of being regarded as an unwholesome, and therefore a noxious, thing.
COMMENT: The judgment declares a legal principle that will be of general application in cases brought under s.24 of the 1861 Act. It will be interesting to see whether the words underlined above give rise to practical problems. Where, for example, the substance is a drug, will expert evidence be receivable as to whether or not the substance (given the quantity and manner in which it was administered) could properly be found by a jury to be “injurious, hurtful, harmful or unwholesome”?
Once a judge has ruled – apparently as a matter of law – that a substance could be so found, it is difficult to see what there is left for the jury to decide, as a matter of fact, as to whether the substance was “noxious” or not.

R v Coker [2019] EWCA Crim 420  [Link]

In R v Coker, the Court of Appeal held that, applying Hughes (1985) 81 Cr App R p.348, Martin [2015] 1 WLR 588, and Abi-Khalil, [2017] EWCA Crim 17, the elements of the offence under s.4(3)(b) of the Misuse of Drugs Act 1971, of which the prosecution must make the jury sure, are:
(1) that there has been the supply of a controlled drug to another in contravention of s.4(1);
(2) that the defendant in question participated in an enterprise involving such supply;
(3) that the defendant knew the nature of the enterprise, namely that it involved such supply.
Subject to such tailoring as is required for the individual facts, those elements of the offence were to be included in directions given to the jury when considering a charge under s.4(3)(b).
There was no room for an either/or direction. When the issue went to whether or not a defendant was concerned with supply or an offer to supply controlled drugs, the count in question had either relate to subsection (b) or to subsection (c).
COMMENT: This is an important decision but, for understandable reasons, the Court heard no argument (and expressed no view) on the construction of s.4(3)(a) of the MDA or concerning the situation where the indictment contained separate counts, one under s.4(3)(b) and another under s.4(3)(c).

R v Fulton [2019] EWCA Crim 163 [Link]

The CACD held that the decision in R v Sivaraman [2008] EWCA Crim 1736 was not authority for the proposition that an employee who is involved in a conspiracy with his employer does not individually gain a benefit. The difference between the position of an employee acting honestly in the course of his legitimate employment and that of the appellant acting as a money launderer was fundamental.
The appellant had submitted that although R v Waya [2013] 1 AC 294 only expressly imposed the requirement of proportionality upon an order for payment of the “recoverable amount” (likewise the subsequent amendment to s.6(5) of the Proceeds of Crime Act 2002), the same requirement ought also to apply to the level of “benefit” found by the court. However, the Court did not hear full argument on this point at the hearing (although it saw force in the submissions). In any event, it was unnecessary to reach a concluded view on the point. The situations of disproportionality cited and discussed in Waya comprised two cases where defendants had fully restored to the loser any proceeds of crime (R v Morgan [2008] EWCA Crim 1323 and R v Bygrave [2009] 1 Cr App R (S) 60) EWCA Crim 1323), and one case where the defendant had obtained small over-payments on otherwise legitimate pharmaceutical orders.

R v Garry [2019] EWHC 636 (Admin)

It was said in Garry that whether the defence of reasonable excuse is made out depends on the facts of the case in which regard the fact-finding tribunal enjoys a wide discretion.  An innocent purpose for having an offensive weapon in a public place does not equate to a reasonable excuse.  The fact-finding tribunal is entitled to consider necessity or immediate temporal connection between possession of the weapon and the purpose for which it was carried (at [16]).  Proof that the weapon was for use at work is not dispositive of reasonable excuse.  In many instances, when a defendant proves use of the item for work, reasonableness of that use would not arise.  That said, conclusive proof of a habit of using the weapon for work might prompt review of whether that use was reasonable (at [17]).  One question for fact-finders is whether the defendant’s assertion that the weapon was used for work is credible.