As to the whole life tariff, Lord Phillips said:

10. 'The scheme of Schedule 21 is that the judge first determines the starting point and then considers whether it is appropriate to adjust the sentence upwards or downwards to take account of aggravating or mitigating factors. This approach is manifestly not possible in respect of a whole life order. A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4 (2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty.'

As to guilty pleas:

11. 'Where the judge decides that it is appropriate to fix a minimum term, an appropriate credit for the plea of guilty should be deducted from the minimum term which the judge would have imposed had there been no plea of guilty. The Sentencing Guidelines Council has issued Guidelines as to the approach to be adopted to giving credit for a guilty plea. That guidance deals specifically with pleas of guilty to murder. . . . [It] states, "Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea".'

The difficulty here is that the guideline cannot preclude the court from its statutory duty under the Criminal Justice Act 2003, s 144, to 'have regard to' a guilty plea. On this point the court ruled that, where a judge has decided that it is appropriate to fix a minimum term, appropriate credit for the plea of guilty should be deducted from the minimum term which the judge would have imposed had there been no plea of guilty. However, in cases involving guilty pleas and whole life orders, the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. That is true of every mitigating factor. Where a case clearly calls for the imposition of a whole life sentence (i.e. it is not borderline) there is no need for a judge to spell out expressly that (whilst he has had regard to the guilty plea) the plea has not affected the sentence.

E5 Custodial Sentences for Dangerous Offenders

E5.1 Overview of Provisions

In Lang and other appeals [2005] EWCA Crim 2684 the Court of Appeal has provided guidance as to the proper application of the provisions of the Criminal Justice Act 2003 relating to discretionary life sentences, imprisonment or detention for public protection and the imposition of extended sentences in relation to violent or sexual offences and for the protection of the public from dangerous offenders.

The key to the application of these provisions, contained in ss. 225(1) and 226(1) (and it may be added in relation to extended sentences under ss. 227(1) and 228(1)) is serious harm: the court must consider that there is a significant risk to members of the public (an all-embracing term which does not exclude groups such as prison officers etc.) occasioned by the commission by the offender of further specified offences. In relation to ss. 225 and 226 the court must consider dangerousness. There may be exceptional cases where the offence itself is so serious that an indeterminate sentence is required regardless of the risk to the public.

The procedure for fixing minimum terms for these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The concept of serious harm is well known: see Bowler 15 Cr App R (S) 78 and Collard [2004] EWCA Crim 1664 which continue to apply.

In relation to sexual offences, an offender who has committed offences both before and after 4 April 2005 falls to be sentenced under two regimes. Sentence should be passed under the new regime with no separate penalty imposed for the earlier offences. This will not be possible if the earlier offences are more serious than the later ones. If sentenced for offences only some of which are serious, shorter concurrent sentences should be passed for the others.

Factors to be considered in assessing risk are as follows.

• The risk identified must be significant.
• Pre-sentence reports will be required showing the nature and circumstances of the current offence, the history of offending (including past sentences and any pattern of offending), relevant social and economic factors such as drug or alcohol abuse, and the offender's attitudes and thinking.
• Significant risk must not be assumed because the foreseen specified offence was serious.
• If the foreseen specified offence is not serious, there will be few cases where such risk of serious harm would be regarded as significant.
• If a rebuttable presumption arises under s. 229(3), the court is accorded a discretion to conclude that there is no significant risk.
• Where the offender is aged under 18 or is an adult with no previous convictions when the specified offence was committed, the court's discretion under s. 229(2) is not constrained by the presumption in s. 229(3).
• With particularly young offenders indeterminate sentences may be inappropriate for serious offences where there is a risk of harm from further offences, and see D [2005] EWCA Crim 2282.
• The Act is intended to protect the public from serious harm and not to provide for the imposition of indeterminate sentences for minor offences.

Sentencers should give reasons for their conclusions particularly as to whether or not there was a significant risk of further offences and/or serious harm and for making (or not making) the statutory assumption.

E25 Notification Requirements under the Sexual Offences Act 2003

E25.3 Notification Period

As to the length of the notification period in cases where a young offender is sentenced to a detention and training order, see the Sexual Offences Act 2003, s. 131 and Slocombe [2005] EWCA Crim 2297, in which it was held that a 12-month detention and training order was the equivalent of a sentence of only six months' imprisonment, because the young offender in question would only be liable to 'serve' such a period before release under supervision.

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F10 Opinion Evidence

F10.3 Expert Opinion Evidence

Puaca [2005] EWCA Crim 3001 is the latest in a long line of cases in which the safety of a conviction has rested largely or wholly on bitterly contested expert evidence. After Cannings [2004] EWCA Crim 01, it seemed, briefly, that caution had at last taken hold and that the courts now recognised the impossibility of requiring juries to distinguish between the relative credibility or weight of conflicting expert opinion. As the court observed in Cannings:

'Where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence . . . which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.'

But in Harris [2005] EWCA Crim 1980 and Kai-Whitewind [2005] EWCA Crim 1092 the Court of Appeal has in effect retreated from that position, confining the Cannings observations to their own particular facts, rather than accepting their underlying good sense. Juries may therefore continue to convict of murder in cases where at least some expert witnesses support that conclusion, even where a battery of equally eminent expert witnesses (four in Kai-Whitewind, including a professor of forensic pathology and consultant pathologist to the Home Office) opine that such a conclusion is either wrong or uncertain. It is not necessary for the prosecution experts' views to be supported by other evidence, such as a confession or even evidence of a motive (although in Kai-Whitewind the appellant may have harmed her case by failing to testify in her own defence). The jurors may have no expertise or qualification that might enable them properly to discern which of the experts are right, but that does not seem to matter.

Puaca at least establishes that an appeal may be allowed where the prosecution expert's conclusions were misleadingly presented and not founded in such a way that they could be safely relied on by the jury. Evidence that is 'consistent with asphyxia', for example, may not be inconsistent with other causes of death, and evidence of asphyxia does not necessarily mean evidence of deliberate suffocation, but poorly presented evidence might give that impression.

Hooper LJ, giving the judgment of the court, said:

'A post-mortem report fulfils a number of functions. It guides the police in their investigations. It is likely that it will be considered in pre-trial proceedings and applications such as an application for bail or legal assistance. It is the basis of the expert's evidence at trial. As such the opinion of the pathologist must, as the Practice Guidelines of the Policy Advisory Board for Forensic Pathology make clear, be "objectively reached" and have "scientific validity". The duty of all pathologists, whoever instructs them, is, in our view, to comply with the obligations imposed on expert witnesses from the start. It is wholly wrong for a pathologist carrying out the first post-mortem at the request of the police or coroner merely to leave it to the defence to instruct a pathologist to prepare a report setting out contrary arguments. The case law as to the duties and responsibilities of experts is clear. As Cresswell J said in a much cited passage in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The "Ikarian Reefer") [1993] 2 Lloyd's Rep. 68 [also cited more extensively by the Court of Appeal in Harris - see the September update]: "An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion."'

F12 Character Evidence: Evidence of Bad Character of Accused

F12.1 The Criminal Justice Act 2003

In Renda and other appeals [2005] EWCA Crim 2826, the Court of Appeal (in a judgment given by Sir Igor Judge P) made the following general observations as to the new regime introduced by the Criminal Justice Act 2003:

'Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the trial judge's "feel" for the case is usually the critical ingredient of the decision at first instance which this Court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called "authority", in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for trial judges.

Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed.'

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F12.2 Bad Character

Evidence of bad character is now admissible (if at all) only where the Criminal Justice Act 2003, part 11 so provides (although where it is so admissible such character may be established through evidence of reputation under common-law rules preserved by s. 99(2)). In Weir [2005] EWCA Crim 2866, however, it was recognised (obiter) that:

'No doubt there are cases where previous conduct of a defendant is of probative value and therefore relevant to a matter in issue between him and the prosecution or him and a co-defendant, yet the "bad character" provisions of the [Criminal Justice Act 2003] relating to the defendant's "misconduct" do not apply. In such cases, section 99(1) of the Act whereby the common law rules governing the admissibility of evidence of "bad character" in criminal proceedings are abolished does not exclude the relevant material because it does not amount to "evidence of bad character".

This might in some cases include evidence of irrational or even dangerous behaviour to which no blame or culpability attaches, but although an absolute discharge following an earlier finding of unfitness to plead does not constitute a criminal conviction, it does not necessarily indicate that the person found unfit to plead was blameless as far as the alleged offence was concerned: and an act of violence that gave rise to the proceedings in question may still be considered reprehensible behaviour and thus evidence of bad character: Renda and other appeals [2005] EWCA Crim 2826.

F12.12 Proof of Propensity

In O'Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 WLR 1038 (which was not a criminal case), Lord Phillips appeared to suggest (obiter) that the Criminal Justice Act 2003 'codified' the old common-law rules governing evidence of bad character and that the test promulgated by the House of Lords in DPP v P to govern the admissibility of 'similar fact' evidence remained relevant to the admissibility of bad character evidence of criminal propensity. He then added,

'Instead of applying Lord Mackay's simple test [from DPP v P], the trial judge now has to apply his mind to the matters set out in sections 101 to 106 of the 2003 Act. These preserve, however, by rules of some complexity, the requirement that the similar fact evidence should have an enhanced probative value.'

This in part echoes suggestions advanced by some writers, but found no favour with the Court of Appeal in Weir [2005] EWCA Crim 2866, where the passages in question were politely described as 'capable of being misunderstood'. The 2003 Act, said Kennedy LJ, has completely reversed the old general rule governing evidence of bad character. Evidence of bad character is now admissible if it satisfies certain criteria, and s 101 does not require evidence of propensity to have any 'enhanced probative value'. Instead:

'If the evidence of a defendant's bad character is relevant to an important issue between the prosecution and the defence (s 101(1)(d)), then, unless there is an application to exclude the evidence, it is admissible. Leave is not required. So the pre-existing one stage test which balanced probative value against prejudicial effect is obsolete.'

F12.21 Risk of Collusion between Witnesses

It is important that the Criminal Justice Act 2003, s 107, should not be misused. Unless the case falls squarely within s. 107(5), the Court of Appeal is the appropriate court in which the correctness of the judge's original decision to admit bad character evidence should be questioned: R v Renda and other appeals [2005] EWCA Crim 2826 per Judge P at [27].

Even where the case does fall within s. 107(5), this does not mean that it would be unsafe to continue with the trial. It may in some cases be possible to neutralise any potential prejudice by demonstrating the fact (if such be the case) that the evidence in question is false. Greater difficulty may in fact be caused by evidence which although clearly contaminated is not demonstrably false, so that a jury may be tempted to rely upon it (ibid).

F12.31 Evidence to Correct a False Impression

There is a significant difference between the defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to disassociate himself with false impressions conveyed by the assertions of others, and the defendant who in the process of cross-examination is obliged to concede that he has been misleading the jury. A concession extracted in cross-examination that the defendant was not telling the truth in part of his examination-in-chief will not normally amount to a withdrawal or disassociation from the original assertion for the purposes of s. 105(3): Renda and others [2005] EWCA Crim 2826 per Judge P at [21].

F12.33 Attack on another Person's Character

In Renda and others [2005] EWCA Crim 2826, one of the appellants (Ball) asserted on a charge of rape that the complainant had behaved or was disposed to behave in a reprehensible way ("She's a bag really, you know what I mean, a slag. . .") Accordingly the judge ruled that an attack had been made on her character for the purposes of the Criminal Justice Act 2003, s. 101(1)(g), as explained and expanded in s. 106, and in particular s. 106(1)(c). Evidence was given "of an imputation about the other person made by the defendant - (i) on being questioned under caution, before charge. . .". The judge considered whether to exclude the evidence under s. 101(1)(3) on the basis that its admission would have an adverse effect on the fairness of the proceedings, but concluded that cross-examination as to the appellant's bad character should be permitted, and the Court of Appeal held that there was no arguable basis for interfering with his decision.

F13 Character Evidence: Evidence of Good Character

F13.8 Meaning of Good Character

Where a defendant has attempted to conceal his past from the jury, there may be no injustice in a judge declining, to give him even a qualified good character direction: Maillett [2005] EWCA Crim 3159.

F14 Character Evidence: Evidence of Bad Character other than Accused

F14.7 Evidence of Substantial Probative Value

The first cases in the Court of Appeal to involve issues under the Criminal Justice Act 2003, s. 100 suggest that under the new regime witnesses other than defendants are indeed less likely than before to have their bad characters revealed, whereas the bad character of a defendant is more readily admissible than ever before. See for example Weir [2005] EWCA Crim 2866.

It was nevertheless held in Weir that matters relating only to the credibility of a witness may be admissible under s 100, if they have substantial probative value in respect of such credibility and if the credibility of the impugned witness is of substantial importance in the context of the case as a whole. To exclude evidence of credibility, said the court, would leave a significant lacuna in the legislation with the potential for unfairness, and it is clear from the explanatory notes to the Act (at para. 362) that Parliament did not intend issue of witness credibility to be excluded from the operation of that section.

See also Renda and others [2005] EWCA Crim 2826.

F16 Exceptions to the Rule against Hearsay

F16.15 Criminal Justice Act 2003: Discretionary ExclusionM

In Al-Khawaja [2005] EWCA Crim 2697, the Court of Appeal returned to the issued raised by the ECHR, Article 6(1) and (3)(d) in cases where a key prosecution witness is dead or otherwise unavailable and the prosecution propose to use a statement made by that witness as hearsay. The case arose under the Criminal Justice Act 1988, s. 23, but the human rights issues are essentially the same as those which may arise under the Criminal Justice Act 2003.

Having considered Sellick [2005] EWCA Crim 651, and Doorson v Netherlands (1996) 22 EHRR 330, the court concluded that nothing in Article 6 required the exclusion of the deceased complainant's evidence in the circumstances of that case, but the court certified the following question of law of general public importance for possible consideration by the House of Lords:

'Was it a breach of the defendant's right to a fair trial provided by art 6(1) and (3)(d) of the European Convention on Human Rights that the statement of the essential witness on one count was admitted in evidence, she having died?'

F17 Confessions

F17.34 Confession Implicating a Co-accused

Coll [2005] All ER (D) 82 (Nov), 7 November 2005, CA provides an illustration of the possible use against an accused of a confession made in his presence by a co-accused.

In the course of a recorded telephone call to the emergency services following a fatal stabbing, the appellant's co-accused said something which suggested that she and the appellant were jointly responsible for the offence. The appellant appears to have said nothing. On the facts of the case, it seems far from clear that it was safe to draw any inferences from the appellant's failure to deny what the co-accused said, because it was not even clear that the appellant had either heard or understood what was said. This however was held to be a matter for the jury to decide, and the trial judge had directed them correctly.

F17.42 Editing at Trial to Protect a Co-accused

Lobban v The Queen [1995] 1 WLR 877 was considered and applied by the Court of Appeal in Mitchell [2005] All ER (D) 74 (Nov), 4 November 2005, CA.

F18 Evidence of Identification

F18. 28 Use of Visual Images as Evidence at Trial

As to the use of 'facial mapping' techniques in support of poor quality CCTV images, see also Ciantar [2005] All ER (D) 356 (Nov), 25 November 2005, CA.

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Licensing Act 2003 (Consequential Amendments) Order 2005 (SI 2005 No. 3048)

Among the amendments made by this Order are amendments to the Criminal Justice and Police Act 2001, s. 1 and to the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837). These have the effect of making offences under the Licensing Act 2003, ss. 141, 146(1) and (3), 149(3) and (4) and 151 into offences which may attract a fixed penalty of £80 and those offences under ss. 149(1) and 150 of that Act into offences which may attract a fixed penalty of £50. It also removes from the fixed penalty regime the offences under the now repealed Licensing Act 1964.

Drugs Act 2005 (Commencement No. 3) Order 2005 (SI 2005 No. 3053)

This Order brings the following provisions of the Act into force:

On 1 December 2005: ss. 7 (testing for presence of Class A drugs), 9 (initial assessment following testing for presence of Class A drugs), 12 (attendance at initial assessment), 18 (orders under Part 3 and guidance) and 19 (interpretation) and, to the extent not already in force, s. 23 (amendments and repeals) and schs. 1 (amendments) and 2 (repeals).

On 1 December, insofar as they relate to initial assessments required under s. 9: ss. 11 (requirements under ss. 9 and 10: supplemental), 15 (disclosure of information about assessments), 16 (samples submitted for further analysis) and 17 (relationship with Bail Act 1976 etc.).

On 1 January 2006: ss. 1 (aggravated supply of controlled drug), 3 (drug offence searches: England and Wales), 5 (x-rays and ultrasound scans) and 8 (extended detention of suspected drug offenders).

Criminal Justice and Court Services Act 2000 (Commencement No. 15) Order 2005 (SI 2005 No. 3054)

This Order brings s. 57 of the Act (testing of persons in police detention) fully into force on 1 December 2005.

Criminal Justice Act 2003 (Commencement No. 3) Order 2005 (SI 2005 No. 3055)

This Order brings s. 5 of the Act (drug testing for under-eighteens) into force on 1 December 2005.

Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056)

This Order brings into force, on 24 November 2005, the whole of the Act bar sch. 6, paras. 98 and 99(c) and the repeal of the Sporting Events (Control of Alcohol etc.) Act 1985, ss. 2(1A) and 5A.

Serious Organised Crime and Police Act 2005 (Commencement No. 3) Order 2005 (SI 2005 No. 3136)

This Order brings into force on 1 January 2006, inter alia, s. 98(1) (civil recovery freezing orders) and sch. 6, paras. 2, 3, 5, 7 to 19 and 21 to 23.

Collection of Fines (Pilot Schemes) (Amendment) Order 2005 (SI 2005 No. 3166)

This Order further amends the principal Order of 2004 (SI 2004 No. 175) to add more local justice areas to the pilot scheme.

Misuse of Drugs Act 1971 (Amendment) Order 2005 (SI 2005 No. 3178)

This Order amends the sch. 2, part 3 of the 1971 Act so as to insert the drug ketamine in the list of Class C drugs.

Criminal Justice (International co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005 (SI 2005 No. 3180)

This Order makes provision for the enforcement of any forfeiture orders made in a designated country arising from a criminal offence.

Domestic Violence, Crime and Victims Act 2004 (Commencement No. 5) Order 2005 (SI 2005 No. 3196)

This Order brings into force, on 5 December 2005, ss. 2 and 3 and sch. 10, paras. 34, 35 and 40 to 42 and a relevant repeal in sch.11. All these provisions relate to family proceedings and the Family Law Act 1996.

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