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Blackstone's Criminal Practice 2006

April 2006

April Updates

Updates to Blackstone's Criminal Practice 2006 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

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• Part A: General Principles of Criminal Law
• Part B: Offences
• Part C: Road Trafic Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• New Legislation

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PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A3 General Defences

A3.30 Self-defence, Prevention of Crime and Related Defences

Jones [2005] QB 259 has been affirmed by the House of Lords in Jones and other appeals [2006] UKHL 16. The Appellate Committee held that a crime of aggression under public international law is not a "crime" within the meaning of the Criminal Law Act 1967, s 3. Peace activists opposed to the Iraq war could not therefore justify invasions of airfields or damage to military facilities by arguing that they had been using force in the prevention of crime, even if (and their lordships would not be drawn into ruling upon this) the war in Iraq was indeed illegal. Lord Hoffman said:

"the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury".

A5 Parties to Offences

A5.2 The Mental Element for Accessories

Johnson v Youden [1950] 1 KB 544 and Powell; English [1999] AC 1 were considered by the Court of Appeal in Webster [2006] EWCA Crim 415, in which it was held that in order to establish liability for aiding and abetting an offence of causing death by dangerous driving (by permitting an intoxicated friend to drive), the prosecution must prove that the accused realised the driver was likely to drive dangerously. Knowledge of the driver's intoxication was not in itself enough, because driving when intoxicated is not in itself dangerous driving (Woodward [1995] 3 All ER 79; and see C3.9). Once the manner of driving became obviously dangerous, liability on the basis of a failure to intervene would depend on whether there was any opportunity to intervene and, if so, on whether failure to take such an opportunity amounted to encouragement or assistance.

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PART B OFFENCES

B1 Homicide and Related Offences

B1.34 Constructive Manslaughter

As predicted in the February update, the prosecution will seek to appeal to the House of Lords in respect of the Court of Appeal's ruling in Carey [2006] EWCA Crim 17. The Court of Appeal in Carey, [2006] All ER (D) 107 (Mar) has now certified a question of law of general public importance for possible consideration by the Appellate Committee, namely:

'If in the course of an affray, a person uses unlawful violence amounting to an assault, and that assault is the only act that all sober and reasonable people would inevitably recognise must subject the victim to the risk of some harm resulting therefrom, and if the victim dies as a result of the affray but not as a result of the assault, whether anyone who is guilty of the affray is also guilty of manslaughter - whether or not he was party to the assault'.

B3 Sexual Offences

B3.272 Possession of Indecent Photographs of Children, etc

Many computer users now know that images or files that have been deleted from a computer drive or even 'emptied from the recycle bin' may subsequently be retrieved or 'undeleted' by the use of specialist software. Some of this software is commercially available, while some is available only to specialist users such as the police. If a defendant is found to have deleted the files in question prior to the date or dates covered by the indictment, and if he does not possess the software needed to retrieve them, can he still be said to be 'in possession' of those files?

This question was examined by the Court of Appeal in Porter [2006] EWCA Crim 560, but the answer given by the court requires subtle distinctions to be drawn between one case and another. Dyson LJ said:

"Our starting point . . . is that the first question for the jury is whether the defendant in a case of this kind has possession of the image at the relevant time, in the sense of custody or control of the image at that time. If at the alleged time of possession the image is beyond his control . . . he will not possess it. If, however, at that time the image is within his control, for example, because he has the ability to produce it on his screen, to make a hard copy of it, or to send it to someone else, then he will possess it. It will be a matter for the jury to decide whether images are beyond the control of the defendant having regard to all the factors in the case, including his knowledge and particular circumstances. Thus, images which have been emptied from the recycle bin may be considered to be within the control of a defendant who is skilled in the use of computers and in fact owns the software necessary to retrieve such images; whereas such images may be considered not to be within the control of a defendant who does not possess these skills and does not own such software."

The court does not mean by this a defendant who knows something about the existence of data retrieval software must necessarily remain in possession of any data that he has not actually shredded. Dyson LJ also said this:

"Suppose that a person receives unsolicited images of child pornography as an attachment to an email. He is shocked by what he sees and immediately deletes the attachment . . . He knows that the images are retrievable from the hard disk drive, but he believes that they can only be retrieved and removed by specialists who have software and equipment which he does not have. It does not occur to him to seek to acquire the software or engage a specialist for this purpose. So far as he is concerned, he has no intention of ever seeking to retrieve the images and he has done all that is reasonably necessary to make them irretrievable. We think that it would be surprising if Parliament had intended that such a person should be guilty of an offence under section 160(1) of the 1988 Act."

B6 Falsification, Forgery and Counterfeiting

B6.24 Forgery and Kindred Offences: Falsity as to Authorship

More [1987] 1 WLR 1578 was distinguished in Atunwa [2006] EWCA Crim 673, in which the appellant was found in possession of cheques purporting to have been signed on behalf of registered companies, but bearing the signatures of unknown individuals who (if they existed at all) had no connection with those companies. His convictions for possessing false instruments with intent (see B6.43) were upheld. Dyson LJ said at [8]:

"If A signs a cheque on behalf of X Limited in the name of B, and B is authorised to sign cheques on behalf of X Limited, A commits the offence; he purports to make an instrument "in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms" . . . But the offence may also be committed if A purports to sign a cheque on behalf of X Limited in his own name where he is not an authorised signatory. In this situation too, A purports to make an instrument in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms. In both cases the cheque tells a lie about itself, namely that it is a cheque duly signed by a person authorised to sign the cheque on behalf of the company."

B12 Offences Relating to Weapons

12.51 Possession of Firearm with Intent to Endanger Life

Bentham [1973] QB 357 was considered by the Court of Appeal in Norris [2006] EWCA Crim 738. It had been said in Bentham that "the mischief at which [the Firearms Act 1968, s 16] is aimed must be that of a person possessing a firearm ready for use, if and when occasion arises, in a manner which endangers life".

The court in Norris agreed, but ruled that a defendant may be guilty of an offence under that section, even if the weapon in his possession was, unknown to him, ineffectively loaded and therefore incapable, at that time, of firing at all.

This interpretation must be correct, and would arguably extend to cases in which the firearm in question was itself damaged or faulty, so as to be incapable if firing unless first repaired. As to the reasons why s 16 cannot extend to possession of imitation firearms, see Blackstone's Criminal Practice, B12.50.

B20 Offences Relating to Drugs

B20.108 Sentencing Guidelines: Class C Drugs

As forecast in the main text, the downgrading of cannabis to a Class C drug has not affected sentencing practice for offences other than simple possession. The Aramah guidelines therefore remain valid. See A-G's Ref (No. 12 of 2006); Sinclair [2006] All ER (D) 425 (Mar).

B23 Immigration Offences

B23.5 Illegal Entry and Deception

The limited scope of the defence provided by the Immigration and Asylum Act 1999, s 31, was examined by the Court of Appeal in Asfaw [2006] EWCA Crim 707, in which D, a refugee from Ethiopia, appealed against her conviction for attempting to obtain services (airline travel) by deception, namely by use of a false passport. Having initially entered England by means of one false passport, she was arrested at Heathrow as she attempted to board a flight to her chosen destination in the USA.

The court noted that the s 31 defence does not fully give effect to Article 31 of the Refugee Convention, and leaves many refugees liable to conviction for offences such as obtaining services by deception, even though they might have a good defence to a charge alleging an offence to which s 31 applies (namely, forgery and related offences under the Forgery and Counterfeiting Act 1981, part 1, and offences of deception or falsification of documents under the Immigration Act 1971, s 24A or s 26(1)(d)). The court also noted that:

"It is apparently standard practice when an asylum seeker is attempting to leave this country for another place of refuge using false documents to combine a charge of infringement of the Forgery and Counterfeiting Act with a charge of attempting to obtain air services by deception."

The court took the view that if such counts are added in the interests of immigration control, in order to prevent asylum seekers from invoking a defence that s 31 would otherwise provide, there would be strong grounds for contending that this practice constituted an abuse of process. It was possible, however, that in so doing the CPS is merely seeking to enforce the law in the interest of the airlines that are put at risk by the use of false documents.

The court accordingly upheld D's conviction, but quashed a sentence of nine months' imprisonment and substituted an absolute discharge.

One issue not properly explored in this case concerns the application of s 31 to asylum seekers, such as D, who merely seek to use the UK as a transit post in a journey to a preferred place of refuge. On its face, s 31 does not appear capable of offering such persons any defence, because they fail to comply with at least two of the requirements imposed by s 31(1): they do not present themselves to the authorities in the UK without delay; nor do they make a claim for asylum as soon as reasonably practicable after arrival in the UK. In Asfaw the prosecution nevertheless conceded that s 31 might still be invoked in such cases, so the issue did not fall to be resolved.

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PART C ROAD TRAFFIC OFFENCES

C3 Offences Relating to Driving Triable on Indictment

C3.9 Dangerous Driving and Causing Death by Dangerous Driving

Woodward [1995] 1 WLR 375 was considered by the Court of Appeal in Webster [2006] EWCA Crim 415. As to the potential liability of a defendant who permits or encourages an intoxicated person to drive, see A5.2 above.

C5 Drink-driving Offences

C5.23 Admissibility of specimens

Appeals against convictions in drink driving cases may sometimes succeed even when based on the merest technicality. In Edmond v DPP [2006] EWHC 463 (Admin) the claimant attempted to take advantage of that rule. The fact that he failed may look like a victory for common sense, but does not alter the underlying problem.

Following his initial arrest on suspicion of a drink-driving offence, the claimant was required to provide two positive specimens of breath at a police station and, in accordance with the Road Traffic Act 1988, s 7(7), he was warned before doing so that failure to provide would leave him liable to prosecution under that section.

The readings obtained from these specimens of breath were over the legal limit, but were somewhat inconsistent, and the police therefore invited (but did not require) the claimant to provide two more. This procedure had previously been endorsed in Stewart v DPP [2003] EWHC 1323 (Admin). It appears, however, that the warning as to the risk of prosecution for failing to provide was not repeated, and it was on that basis that he appealed against his conviction to the Divisional Court.

The court held that there had been no procedural infringement, because the requisite warning had already been given and was in any case inapplicable to the later voluntary procedure in which the claimant was merely invited to take part.

That sufficed to dispose of the case, but it is unfortunate that the court was unable to deal more robustly with such an appeal. A more robust answer might have stated that, since the claimant had provided the relevant specimens, it was irrelevant whether he had or had not been warned what might have happened had he refused. Unfortunately, Murray v DPP [1993] RTR 209 remains an obstacle to such reasoning and is binding on the Divisional Court.

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PART D PROCEDURE

D1 Police Powers

D1.50 Terrorist Investigations

In R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12, the House of Lords upheld the powers of stop and search in the Terrorism Act 2000, ss 44 to 47 and rejected an argument that they contravene the ECHR.

Section 44(2) of the Terrorism Act 2000 provides that an authorisation may be given to stop a pedestrian in a specified area or place if the high ranking police officer giving it considers that such an authorisation is expedient for the prevention of acts of terrorism. In this instance the specified area was the Metropolitan Police District. Since s. 44 came into force there had been a succession of authorisations and confirmations. A constable acting under the authorised powers did not need to have reasonable grounds for suspecting the presence of an article to stop and search.

In brief their lordships held:

1. The decision maker need not have reasonable grounds for considering that the powers were necessary or suitable; the word "expedient" bears a distinct meaning, and safeguards were written into the Act.
2. An authorisation might thus be given only if the person giving it considered that the powers would be of significant practical utility in seeking to prevent acts of terrorism.
3. Although there had been a succession of authorisations and confirmations, there was no evidence to suggest that these had been the result of a routine bureaucratic exercise. On the evidence they were a reasonable response to a continued threat. They do not contravene the statute.
4. The geographical spread of the authorisations was justified on the evidence which was that terrorist targets were spread throughout London and that it would be impracticable to differentiate between some parts of the district and others. The applicants offered no evidence to the contrary.
5. There was no contravention of the ECHR, Article 5 (right to liberty and security). Stop and search is a brief procedure. The person searched is not handcuffed, confined or removed to a different place, nor is he confined or kept in custody. There is no deprivation of liberty.
6. A superficial search of the person and an opening of bags do not contravene Article 8 (right to private life).
7. Stop and search properly exercised does not constitute an interference with the right to free speech and so does not contravene Articles 10 or 11.

The issues of random and of discriminatory search were adumbrated. A search based on a police officer's trained instinct cannot, according to Lords Brown and Scott, be said to be random. In determining who to search, police officers are entitled to take account of the particular community, if any, from whom the threat is considered to emanate but, for example, the mere fact that a person is of Asian origin is not, per Lord Hope and Lord Brown, a legitimate reason to stop and search him. A person cannot be profiled simply by reason of his ethnicity. It follows that the power requires the person to have conducted himself in such a way as to arouse suspicion that he may pose a terrorist threat.
[Case noted by Leonard Leigh]

D10 The Indictment

D10.41 Court's Discretion to Prevent Abuse of Process

In S [2006] EWCA Crim 756, the Court of Appeal considered a number of authorities as to the power of the court to stay proceedings on the basis of delay, and offered the following guidance (at [20] - [21]):

"20. In our judgment, the discretionary decision whether or not to grant a stay as an abuse of process, because of delay, is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence. It is, therefore, potentially misleading to apply to the exercise of that discretion the language of burden and standard of proof, which is more apt to an evidence-based fact-finding process. . .

21. In the light of the authorities, the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind the following principles:

1. Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
2. Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
3. No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;
4. When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;
5. If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted."

D13 Trial on Indictment: General Matters and Pre-trial Procedure

D13.25 Voluntary Absence of the Accused

Jones [2002] UKHL 5 was considered by the Court of Appeal in O'Hare [2006] EWCA Crim 471. In that case the trial had proceeded in the absence of the accused, or of any legal representatives for the accused, because his defence team had withdrawn in accordance with guidance issued by the Law Society and the Bar Council (see Guidance to the Professional Conduct of Solicitors, 1999; Rule 12.12.2; Bar Council's Rules of Conduct, section 15.3). The accused's conviction was upheld, but the absence of the defence team troubled the court, as did the possibility that the accused was not warned of the possibility that he might be tried in his absence should he abscond. Thomas LJ said (at [34] - [35]):

"We must assume that these provisions must have been carefully considered by the Bar Council and the Law Society in the light of the speeches in Jones. Although we do appreciate the difficulties that legal representatives are put in if a client absconds, we consider that in the light of paragraph 15 of the speech of Lord Bingham in Jones and the circumstances of this case, that the Law Society and Bar Council should reconsider their rules of conduct. The attendance of legal representatives who had received instructions at an earlier stage provide, as Lord Bingham made clear at paragraph 15, a valuable safeguard and would, for the reasons we have given, have done so in the circumstances of the present case. We would hope that the Legal Services Commission would continue to fund representation in such circumstances, for the assistance of the court and in the interests of justice.

No evidence was adduced before us as to what the practice at Lewes was as to warning a defendant who was granted bail that a trial might proceed in his or her absence if he or she did not attend. In view of the observations of this court in Jones . . . it might have been thought unnecessary. We hope that position will now be reconsidered and it be made clear to each defendant that if he fails to attend a trial, the consequences may well be that the trial will proceed in his absence and without legal representation. An analysis of the speeches in the House of Lords points to the conclusion that, if waiver is to be established, then knowledge of, or indifference to, the consequences of being tried in his absence and without legal representation would have to be proved. A direction to the defendant (of the nature suggested) upon the grant of bail as the provision to the defendant of a written statement (to the same effect) would, we think, generally provide an incontrovertible means of proof."

D18 Trial on Indictment: Sentencing Procedure

D18.32 Taking other Offences into Consideration

Some general observations as to the TIC process may be found in Miles [2006] EWCA Crim 256.

D23 Anti-social Behaviour Orders

D23.7 ASBOS following Conviction in Criminal Proceedings

Because ASBO proceedings are deemed to be civil, rather than criminal, even when brought before a criminal court under the Crime and Disorder Act 1998, s 1C, they do not appear to be subject to the usual rules of criminal evidence or procedure. As the Court of Appeal noted in W [2006] EWCA Crim 686, this may give rise to considerable uncertainty and confusion. The Criminal Procedure Rules 2005 (SI 2005 No 384) are stated to apply in general, to "all criminal cases in the magistrates' courts and in the Crown Court". Only r 50.4, which merely provides for the form of the order, clearly applies to such proceedings. On the other hand, the Civil Procedure Rules, which apply to all proceedings in the High Court and County Courts, do not govern application to the Crown Court: see CPR, r 2.1(1). The court in W accordingly suggested that urgent consideration be given to the drafting of appropriate procedural rules.

The admissibility of evidence is governed by civil rules. In the case of hearsay evidence, this means that the Civil Evidence Act 1995 applies, as do the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, where proceedings are brought in those courts.

The court identified the following principles governing the proper handling of ASBO proceedings under s 1C:

1. Proceedings under section IC are civil in nature, so that hearsay evidence is admissible. But a court must be satisfied to a criminal standard that the defendant has acted in the anti-social manner alleged;
2. The test of "necessity" set out in section 1C(2)(b) requires the exercise of judgment or evaluation; it does not require proof beyond reasonable doubt that the order is "necessary";
3. The findings of fact giving rise to the making of the order must be recorded by the Court: see the Crown Court Procedure Rules, Rule 50.4; the form set out in the Practice Direction and P (Shane Tony) [2004] EWCA Crim 287 at para 34). We regard this as particularly important;
4. The terms of the order made must be precise and capable of being understood by the offender;
5. The conditions in the order must be enforceable in the sense that the conditions should allow a breach to be readily identified and capable of being proved. Therefore the conditions should not impose generic prohibitions, but should identify and prohibit the particular type of anti-social behaviour that gives rise to the necessity of an ASBO;
6. There is power under section 1C(5) of the CDA 1998 to suspend the starting point of an ASBO until an offender has been released from a custodial sentence. However, where custodial sentences in excess of a few months are passed and the offender is liable to be released on licence and is thus subject to recall, the circumstances in which there would be a demonstrable necessity to make a suspended ASBO, to take effect on release, will be limited. But there might be cases where geographical restraints could supplement licence conditions;
7. Because the test for making an ASBO and prohibiting an offender from doing something is one of necessity, each separate order prohibiting a person from doing a specified thing must be necessary to protect persons from anti-social behaviour by the offender. Therefore each order must be specifically fashioned to deal with the offender concerned. The court has to ask: "is this order necessary to protect persons in any place in England and Wales from further anti-social acts by him";
8. Not all conditions set out in an ASBO have to run for the full term of the ASBO itself. The test must always be is what is necessary to deal with the particular anti-social behaviour of the offender and what is proportionate in the circumstances;
9. The order is there to protect others from anti-social behaviour by the offender. Therefore the court should not impose an order which prohibits an offender from committing specified criminal offences if the sentence which could be passed following conviction (or a guilty plea) for the offence should be a sufficient deterrent: ibid. para 31.
10. It is unlawful to make an ASBO as if it were a further sentence or punishment. An ASBO must therefore not be used merely to increase the sentence of imprisonment that the offender is to receive.

It is imperative that the prosecution identifies the particular facts said to constitute anti-social behaviour. We emphasise the word fact, as opposed to evidence adduced to prove a fact to the criminal standard. If the offender accepts those facts, then they should be put in writing, in the same way that a "Basis of Plea" should always be put in writing. If facts are not accepted, then they have to be proved to the criminal standard before they can be acted upon. The judge should state his findings of fact expressly and they should be recorded in writing on the Order made by the judge in the space provided on the form.

D26 Reference to the Court of Appeal

D26.1 Reference by the Criminal Cases Review Commission

In Beardall and Lord [2006] EWCA Crim 876, the appellants had lost their appeals against convictions for fraud, having been released on bail pending those appeals (see [2006] EWCA Crim 577). They had by this stage already served a large part of their substantial prison sentences, but faced being returned to prison to serve the remaining months; and because the Court of Appeal had previously dismissed applications for leave to appeal against sentence, it would under normal circumstances have had no jurisdiction to amend those sentences in any way.

Counsel for the appellants accordingly submitted that the court might acquire jurisdiction to interfere with the sentences so as to prevent their return to custody by way of a reference by the Criminal Cases Review Commission under the Criminal Appeal Act 1995, s 9, prior to the judgment dismissing the conviction appeal being handed down.

Rejecting this submission, the court held that the device of seeking a reference from the Criminal Cases Review Commission to enable the court to have the jurisdiction to interfere with a defendant's sentence was not intended by Parliament to be used routinely. There might be circumstances in which such a device could be used to avoid injustice. However, that would have to be an exceptional case, and this was not such a case.

D26.4 Reference for Review of Sentence

It is not the appellate court's function under the Criminal Justice Act 1988, s 36, to substitute, in the light of newly available evidence, its own view as to what sentence ought to be imposed. The court's task is to decide whether the judge's sentence, in the light of material before him, could properly be characterised as unduly lenient: A-G's Ref (No. 19 of 2005) [2006] EWCA Crim 785, (2006) The Times, 3 May 2006.

D29 Public Funding and Costs

D29.12 Proper Approach to Making of a Defendant's Costs Order

In Hussain v United Kingdom (App No 8866/04) (2006) The Times, 5 April 2006, the European Court of Human Rights held that there had been a violation of the applicant's rights under ECHR, Article 6(2) when, following the prosecution's failure to offer any evidence against him, he was denied an order for costs on the grounds that there was 'clear and compelling evidence of his guilt on the court papers'. There was no evidence that he had intimidated or otherwise interfered with any prosecution witnesses (although it was for such an offence that he was originally charged) and it followed that he was being denied his costs purely on the basis of an unproven suspicion of guilt.

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PART E SENTENCING

E6 Prescribed Custodial Sentences

E6.3 Minimum Custodial Sentences for Firearms Offences

The maze of prescriptive and prohibitive sentencing legislation through which sentencing courts must navigate is becoming steadily more complex, and in some cases can appear bewilderingly contradictory. In Campbell [2006] EWCA Crim 726, the Court of Appeal had to consider two conflicting statutory directives. Where applicable, the Firearms Act 1968, s 51A, requires the imposition of a minimum sentence of five years' imprisonment on an offender aged 18 or over at the relevant time; but by the Powers of Criminal Courts (Sentencing) Act 2000, s 89(1),

'Subject to subsection (2) below, no court shall (a) pass a sentence of imprisonment on a person for an offence if he is aged under 21 when convicted of the offence'.

The Criminal Justice and Courts Services Act 2000 provides for the amendment of s 89(1) so that it will apply to those 'under 18' rather than to those 'under 21', but at the date of the hearing (and at the date of writing) that provision had yet to come into force. Moreover, the Secretary of State had failed to exercise his powers under the Criminal Justice Act 2003, s 333, so to make supplementary, consequential or transitional provisions relating the issue.

Faced with this regrettable conflict, the court decided that Parliament's clear intention was reflected in s 89(1) and a sentence of four years' in a young offender institution was substituted.

See also A (appeal under s 58 of the Criminal Justice Act 2003) [2005] All ER (D) 242 (Dec).

E21 Confiscation Orders

E21.6 Determination of Benefit from Criminal Conduct

The concept of benefiting from the obtaining of property or of a pecuniary advantage has been further examined by the civil and criminal divisions of the Court of Appeal in Jennings v Crown Prosecution Service [2005] EWCA Civ 746 and Byatt [2006] All ER (D) 484 (Mar). It is clear that D may be deemed to have benefited from criminal conduct even though that benefit was almost immediately dissipated or lost, but difficulties may arise where he has been involved in a criminal enterprise without at any stage gaining anything for himself. In Jennings, Laws LJ said:

"The defendant . . . should have been instrumental in getting the property out of the crime. His acts must have been a cause of that being done. Not necessarily the only cause: there may, plainly, be other actors playing their parts. All that is required is that the defendant's acts should have contributed, to a non-trivial (that is, not de minimis) extent, to the getting of the property. This is no more than an instance of the common law's conventional approach to questions of causation."

In contrast, Byatt was a case in which D joined a conspiracy to rob, but withdrew from this well before the actual commission of the offence by two of the remaining conspirators. In those circumstances, it could not be said that he had obtained any benefit at all.

E22 Recommendation for DeportationM

E22.2 Sentencing Principles

Carmona [2006] EWCA Crim 508 is the first reported case in which the Court of Appeal has examined the impact of the Human Rights Act 1998 on the law and procedure relating to recommendations for deportation. The court concluded that a sentencing court should not consider the rights under the ECHR of an offender whose offences justify a recommendation for deportation. The impact of deportation on a defendant or his family is a matter to be considered by the Home Secretary in determining whether to make a deportation order, and if necessary by the Asylum and Immigration Tribunal on appeal.

It will be only in rare cases that a non-custodial sentence will be imposed and a recommendation for deportation nonetheless made. In such cases, the judge must consider whether detention pending the Home Secretary's decision is reasonably necessary. If there is no real risk of his absconding, the judge should direct that the offender should not be detained pending the making of a deportation order, but detention that is reasonably necessary with a view to deportation will not infringe the ECHR, Article 5: see Article 5.1(f).

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PART F EVIDENCE

F10 Opinion Evidence

F10.3 Expert Opinion Evidence

Harris and others [2005] EWCA Crim 1980 and Kai Whitewind [2005] EWCA Crim 1092 (see the January 2006 Bulletin at pp 11-13) and the duties of expert witnesses generally were considered in Bowman [2006] EWCA Crim 417. The Court of Appeal in that case offered the following guidance, 'in order to underline the necessity for expert reports to be prepared with the greatest care':

175. On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled "Disclosure: Expert's Evidence and Unused Material - Guidance Booklet for Experts". The instructions contained in this booklet were "designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team". The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence.

176. We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times.

177. In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report:

1. Details of the expert's academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.
2. A statement setting out the substance of all the instructions received ([whether] written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.
3. Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert's supervision.
4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert's opinions and any points which should fairly be made against any opinions expressed should be set out.
5. Relevant extracts of literature or any other material which might assist the court.
6. A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.
7. Where on an exchange of experts' reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

F11 Admissibility of Previous Verdicts

F11.1 Proof of Convictions and Acquittals

Pattison v DPP [2005] EWHC 2938 (Admin) (see the January monthly update at C3.39) was considered by the Court of Appeal in Burns [2006] EWCA Crim 617, in which it was argued on behalf of the appellant that a defendant could not be identified as the person previously convicted merely on the basis of similarity between his name and date of birth and those recorded in the relevant memoranda of convictions, or such other material as was relied on. A third factor, such as the address of the person in question, was, it was argued, required in order to provide even prima facie evidence of previous convictions.

The court was unable to accept that proposition. Rose LJ said (at [17]):

It cannot, as it seems to us, be a matter of law as to what is capable of giving rise to prima facie evidence of identification in this context. Similarity in name and date of birth between a memorandum and a defendant may or may not amount to prima facie proof. Each case must depend upon its own facts and upon the material which is available. For example, if a defendant has an extremely common name and the date of birth on a memorandum is not precisely the same as that of the defendant before the Court, it may well be that such a date of birth and name on a memorandum would not be properly admissible as being capable of proving identity. On the other hand, if a defendant has a highly unusual name, consisting of many different component parts, it may or may not be necessary also to have recourse to identical dates of birth in order to provide prima facie evidence. Everything must depend upon the circumstances of the particular case.

Nothing that was said in Burns was intended to refer to the Criminal Justice Act 2003, s 117, by which questions as to the admissibility of business or official documents are treated as questions of law: see Lewendon [2006] EWCA Crim 648, [2006] All ER (D) 10 (Mar). Burns appears to be concerned with the sufficiency of the evidence in question, rather than with admissibility per se.

F12 Character Evidence: Bad Character of Accused

F12.4 New Statutory Gateways

Evidence of bad character that is admissible under one of the s 101 gateways may then, in appropriate cases, be used by a court of jury for other purposes. See Highton and others [2005] EWCA Crim 1985 (discussed in the October 2005 Blackstone's Criminal Practice Bulletin at p 11). In M [2006] All ER (D) 472 (Mar), the Court of Appeal emphasised that this depends on the relevance of the evidence in question. In that case, the defendant had criminal convictions for offences of violence, similar to that with which he was now charged, but he had pleaded guilty on those previous occasions. This time he had entered a plea of not guilty. In those circumstances, said the court, it was wrong for the judge to suggest that the previous convictions could possibly be taken to impact adversely on the defendant's credibility as a witness in his own defence.

F12.13 Propensity under the Criminal Justice Act 2003, s 101(1)(d)

Hanson [2005] EWCA Crim 824 was applied in Tully [2006] All ER (D) 249 (Mar), in which the defendants, who were charged with robbery (allegedly committed with a knife), were proved to have had numerous convictions for offences of dishonesty, but only a few of these were for offences of robbery.

On appeal, it was held that whereas the robbery convictions were clearly relevant and admissible, convictions merely showing a propensity to acquire other people's property were not.

F14 Evidence of Bad Character other than Accused

F14.4 Bad Character 'to do with' the Facts of the Offence etc

The distinction between evidence of bad character within the meaning of the Criminal Justice Act 2003 s 98 and evidence concerning the facts of the alleged offence was considered in Machado [2006] All ER (D) 28 (Mar). The Court of Appeal held that the trial judge in that case had been wrong to exclude evidence of a robbery complainant's alleged misuse of ecstasy at the time of the alleged offence, because this 'related to the very circumstances in which the offence had allegedly occurred'. It was 'contemporaneous with, and closely associated with, the alleged facts of the offence'. The weight of evidence however, meant that the appellants' convictions were not unsafe.

F17 The Rule against Hearsay: Confessions

F17.49 Statements in Presence of Accused

Lord Atkinson's famous dictum in Christie [1914] AC 545 was considered (and accepted as settled law) in Bowen [2006] EWCA Crim 333.

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NEW LEGISLATION

The Terrorism Act 2006 (c 11)

This Act received Royal Assent on 30 March 2006. When in force, part 1 of the Act will create a number of new and serious criminal offences in respect of things done in the course of or in connection with the commission of an act of terrorism or for the purposes of terrorism, notably:

• Encouragement of terrorism (s 1);
• Dissemination of terrorist publications (s 2);
• Preparation of terrorist acts (s 5);
• Training for terrorism (s 6);
• Attendance at a place used for terrorist training (s 8);
• Making and possession of radioactive devices or materials (s 9);
• Misuse of radioactive devices or material and misuse and damage of facilities (s 10);
• Making demands or threats relating to devices, materials or facilities (s 11).

Section 16 amends the Criminal Procedure and Investigations Act 1996, s 29 (power to order preparatory hearing)

Section 17 significantly extends English (and other United Kingdom) criminal jurisdiction over terrorist conduct abroad, and will do so irrespective of whether the alleged offender is a British citizen or, in the case of a company, a company incorporated in a part of the United Kingdom.

Part 2 of the Act deals with the proscription of terrorist organisations, the detention of terrorist suspects, and police and other investigatory powers.

The Immigration, Asylum and Nationality Act 2006 (c 13)

This Act received Royal Assent on 30 March 2006. Although not primarily a penal statute it creates (in s 21) an offence of knowingly employing an adult who has not been granted leave to enter or remain, whose leave is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise) or whose conditions of entry or stay prevent them from undertaking the employment in question. For the purposes of s 21, a body (whether corporate or not) shall be treated as knowing a fact about an employee if a person who has responsibility within the body for an aspect of the employment knows the fact (s 22(1)). The Act also provides for the imposition of civil penalties on employers of such persons.

In addition, orders made under the Act will enable Authorised Persons (who may be police constables or officers of HM Revenue and Customs).to search ships, aircraft, vehicles or other things (eg containers) for illegal entrants and, to search, detain and deliver any such persons to an immigration officer. It will be an offence to obstruct or assault such persons in the exercise of their powers.

The Identity Cards Act 2006 (c 15)

This Act received Royal Assent on 30 March 2006. When eventually brought into force (and this may not be for several months), it will provide for the creation of a national scheme of registration of individuals and for the issue of cards capable of being used for identifying registered individuals. It will also create a series of offences and also provide for the imposition of civil penalties on persons who are in default of obligations under the Act.

The principal offences created by the Act include: possession of false identity documents etc (s 25, read in conjunction with s 26); unauthorised disclosure of information (s 27); providing false information (s 28); and tampering with the Register etc (s 29). The s 25 offence will be a group A offence for jurisdiction purposes under the Criminal Justice Act 1993, part 1 (see Blackstone's Criminal Practice, A8.4).

The Natural Environment and Rural Communities Act 2006

This Act received Royal Assent on 30 March 2006. Although not primarily a penal statute it creates or amends some offences concerning wildlife.

By s 43(1) a person may be guilty of an offence if he has in his possession a pesticide containing an ingredient that is prescribed for the purposes of this section by an order made by the Secretary of State. This is subject to possible defence under s 43(3).

Amendments to the Wildlife and Countryside Act 1981 include the insertion of a new offence (s 14ZA) of selling, offering or exposing for sale, or possession or transportation for the purposes of sale of invasive non-native species of animal or plant to which that section applies, or of anything from which such an animal or plant can be reproduced or propagated.

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