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Companion Website
Blackstone's Criminal Practice 2006
February 2006
February Updates
The February Update was prepared by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, with assistance from Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
This update deals primarily with developments in January 2006, although some more recent developments are also noted.
- Part A: General Principles of Criminal Law
- Part B: Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- Appendices
- New Legislation
PART A GENERAL PRINCIPLES OF CRIMINAL LAW
A3 General Defences
A3.27 Necessity
Quayle [2005] EWCA Crim 1415 (see Blackstone's Criminal practice, A3.28) was followed in Altham [2006] EWCA Crim 7, in which the Court of Appeal held that the ECHR, Article 3 does not entitle those who suffer from chronic pain to take cannabis for pain relief, and that by denying them a defence of medical necessity in such circumstances the United Kingdom does not subject them to inhuman or degrading treatment. Scott Baker LJ said:
'[26] In our judgment the state has done nothing to subject the appellant to either inhuman or degrading treatment and thereby engage the absolute prohibition in Article 3. If the true position is that, absent a defence of necessity, the appellant will either break the criminal law or continue to suffer degrading treatment, the state is not in breach of its Article 3 obligation. We make the qualification about the true position because he is now taking another drug, ketamine, that has been prescribed for him and his pain has been alleviated to such an extent that he no longer uses cannabis. . .
[29] The defence of necessity on an individual basis as advocated by this appellant, as it was by the appellants in Quayle, is in conflict with the purpose and effect of the legislative scheme [in the Misuse of Drugs Act 1971]. The reasoning of Mance LJ in Quayle applies with equal force to the present case. In our view Article 3 adds nothing to the extensive arguments that were dealt with by Mance LJ in Quayle.'
A6 Inchoate Offences
A6.27 Conspiracy to Defraud: Actus Reus
Mba [2006] All ER (D) 73 (Jan), 16 January 2006, CA provides a good example of the potential for a single count of conspiracy to defraud to be founded on evidence of numerous fraudulent transactions, as long as it can be shown that those transactions were effected pursuant to a single agreement.
PART B OFFENCES
B1 Homicide and Related Offences
B1.21 Provocation: the Objective Condition
Any lingering doubts as to whether a decision of the Privy Council (A-G for Jersey v Holley [2005] UKPC 23 could lawfully overrule a decision of the House of Lords (Smith (Morgan James) [2001] 1 AC 146) now appear to have been dispelled. The Court of Appeal, at least, is satisfied that Holley now represents the position under English law. This was assumed with little argument in Mohammed [2005] EWCA Crim 1880, but has now been reiterated after full and careful consideration in James [2006] EWCA Crim 14, from which the following extracts are taken:
"The decision of the majority [in Holley] has been taken to be the law on three occasions by this court and, as we understand the position, is being followed in directions to juries in England and Wales. If these appeals, or any other raising the same issue, reach the House of Lords, the result would seem to be a foregone conclusion. Half of the Law Lords were party to the majority decision in Holley. Three more in that case accepted that the majority decision represented a definitive statement of English law on the issue in question.It is not this court, but the Lords of Appeal in Ordinary who have altered the established approach to precedent. There are possible constitutional issues in postulating that a Board of the Privy Council, however numerous or distinguished, is in a position on an appeal from Jersey to displace and replace a decision of the Appellate Committee on an issue of English law. Our principles in relation to precedent are, however, common law principles. Putting on one side the position of the European Court of Justice, the Lords of Appeal in Ordinary have never hitherto accepted that any other tribunal could overrule a decision of the Appellate Committee. Uniquely a majority of the Law Lords have on this occasion decided that they could do so and have done so in their capacity as members of the Judicial Committee of the Privy Council. We do not consider that it is for this court to rule that it was beyond their powers to alter the common law rules of precedent in this way.
The rule that this court must always follow a decision of the House of Lords and, indeed, one of its own decisions rather than a decision of the Privy Council is one that was established at a time when no tribunal other than the House of Lords itself could rule that a previous decision of the House of Lords was no longer good law. Once one postulates that there are circumstances in which a decision of the Judicial Committee of the Privy Council can take precedence over a decision of the House of Lords, it seems to us that this court must be bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. That, so it seems to us, is the position that has been reached in the case of these appeals."
B1.34 Constructive Manslaughter
The Court of Appeal's ruling in Carey [2006] EWCA Crim 17 purports to limit the breadth of constructive or 'unlawful act' manslaughter. The first defendant punched and kicked one of four teenage victims. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another victim. They then left. The deceased, a girl aged 15, became ill after running home. She died that evening of a heart condition which was congenital and progressive but which had not been diagnosed before her death. The prosecution relied on the affray as constituting the unlawful act and the judge accepted the prosecution submission that, when determining whether the affray had subjected the deceased to the threat of at least some physical harm, it was legitimate to aggregate the violence by the other defendants in order to decide whether the aggregated violence had been a cause of death.
The Court of Appeal held that the charge of manslaughter should have been withdrawn from the jury. It was accepted that a person who inflicts a minor blow from which the victim dies is liable for manslaughter, but the court felt that to hold the defendants liable for the death of the deceased in this case would extend the law: it would come close to saying that if X commits an unlawful act but for which Y would not have died, X must necessarily be liable for the death of Y.
What is required, said the court, is that X has committed an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm that in turn caused Y's death. Whether an act is dangerous in the relevant sense depends upon what knowledge may be imputable to a reasonable person present at the scene. Knowledge of the victim's attributes may be relevant. Here, no reasonable person would have been aware of the victim's heart condition. This was said to distinguish the instant case from Dawson (1985) 81 Cr App R 50, or Watson [1989] 1 WLR 684 in which the victim's approximate age and frail state would have been obvious to any reasonable person.
Nor was this a case in which the victim died in the course of fleeing from the defendants' attack or from a threat of further violence (contrast Roberts (1971) 56 Cr App R 95). The incident had finished and the defendants had headed off in the opposite direction. The evidence suggested that she was merely upset and trying to hurry home.
The court held that in some circumstances affray may be a suitable unlawful act but it was not in this instance because a sober and reasonable person would not have appreciated that an apparently healthy person of 15 years would suffer shock as a result of it. The only dangerous act in the relevant sense was the assault by the second defendant. But the deceased's death was not caused by injuries that were a foreseeable result of the assault. Other participants would be guilty of manslaughter if they were liable for the assault as secondary parties but the acts of those who participated in the affray but were not party to the assault did not, in any relevant sense, cause the death.
It seems, however, that the Crown will seek to appeal to the House of Lords against this ruling.
B2 Non-fatal Offences against the Person
B2.21 Assault Occasioning Actual Bodily Harm
The concept of actual bodily harm was considered by the Divisional Court in DPP v Smith (Michael Ross) [2006] EWHC 94 (Admin), in which it was held that the cutting of a person's hair may amount to such harm, even if no pain is caused and even though no living tissue is affected. Judge P said:
'In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim.'
Plucking or cutting a single hair may at one level be actual bodily harm, but Smith should not be construed as deeming this minimal form of injury to be chargeable under the Offences Against the Person Act 1861, s 47. As Creswell J observed in his short concurring judgment:
'To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm'. (emphasis added)
B3 Sexual Offences
B3.6 Rape: Sentencing Guidelines
The sentencing guidelines laid down in Millberry [2002] EWCA Crim 2891 were considered in Best [2006] All ER (D) 134 (Jan), 20 January 2006, CA, in which substantial mitigating factors (notably the appellant's age (15 years) guilty plea and troubled background had to be balanced against a number of grave aggravating features, including the violent and degrading manner in which he had orally raped his victim (a teacher at his school) and a high risk that he would re-offend. The court observed that although sentences on young persons must ordinarily be 'significantly shorter' than those imposed on an adult in a comparable case, this principle had to be subject to some exceptions. A sentence of detention for life, with a notional determinate period of nine years, was accordingly upheld on appeal.
B4 Theft, Handling Stolen Goods and Related Offences
B4.130 Handling : Sentencing Guidelines
Webbe [2001] EWCA Crim 1217 was considered in Lebbie [2006] All ER (D) 218 (Jan), 27 January 2006, CA, in which D was found in possession of several stolen passports. A sentence of 15 months' imprisonment for handling the passports was upheld on appeal. The court noted that offences involving stolen passports (which could be used to steal a person's identity) must be treated very seriously and any sentences imposed must reflect this.
B8 Damage to Property
B8.8 Mens Rea
One might suppose that, following the subjective test established in G [2003] UKHL 50, if a pedestrian rashly dashes into the road, he will be reckless, if at all, only as to his own safety. In Booth v Crown Prosecution Service [2006] All ER (D) 225 (Jan), 30 January 2006, DC however, the court upheld the defendant's conviction on a charge of recklessly damaging the vehicle that hit him. If indeed a pedestrian does consider the possibility of such damage, the ruling is clearly right, but with respect there may be some force in the defence argument that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.
B10 Terrorism, Piracy and Hijacking
B10.1 Terrorism: General
The President of the Queen's Bench Division has issued a protocol which applies to all terrorism cases and is essentially a required procedure for the management of all such cases. A pdf version of the protocol is available here.
B11 Offences Affecting Public Order
B11.42 Affray
The Court of Appeal's ruling in Carey [2006] EWCA Crim 17 (see B1.34 above) contains observations as to the liability of a defendant who is party to an affray in which further offences (e.g. wounding or manslaughter) are committed by other parties to that affray. His liability for such further offences depends on the general principles of secondary participation. He is not made liable for such offences merely by virtue of the Public Order Act 1986, s. 3(2).
B11.93 Harassment
The defendant in Howlett v Holding [2006] EWHC 41 (QBD), (2006) The Times, 8 February 2006, an application for an injunction arising from a planning application, flew aircraft with banners referring to Mrs. Howlett in abusive and derogatory terms, and placed her under secret surveillance claiming that she was committing benefit fraud. The claimant, who had spoken out as a councillor in respect of a planning application brought by the defendant, sought and obtained injunctive relief. In the course of his judgment, Eady J held that to leave Mrs. Howlett in a situation where she might be placed under surveillance was to permit a course of conduct amounting to harassment under s. 1(1) of the Protection from Harassment Act 1997. The defendant could not avail himself of the statutory defence under s. 1(3), namely that he was seeking to detect a crime, because that defence existed for the benefit of law enforcement agencies and not for private citizens. Even if a private citizen was entitled to invoke the defence he would have to show that there was, objectively judged, a rational basis for the surveillance. Here there was none.
The flying of banners from aircraft could also constitute harassment, notwithstanding that an injunction would infringe the person's freedom of speech under the ECHR, Article 10 but the defendant's right to free speech did not necessarily prevail over the claimant's Article 8 right to her physical and psychological integrity. The injury done to the claimant's right was out of all proportion to the value to be attached, in this case, to the right of free speech under Article 10. It would seem to follow that, in criminal proceedings, on facts such as these, an invocation of Article 10 would also not serve as a defence simply because it does not afford a basis for reading s 1(1) as excluding any and all infringements of the right to free speech.
B22 Offences related to the Proceeds of Criminal Conduct
B22.2 The Money Laundering Regulations
The Proceeds of Crime Act 2002 and Money Laundering Regulations 2003 (Amendment) Order 2006 (SI 2006 No. 308) includes amendments to the Money Laundering Regulations 2003. In order to give full effect to EU Directive 2001/97/EC, art. 3 amends reg. 7 (internal reporting procedures) so as to extend the persons to whom the defence under that regulation applies to a "relevant professional adviser" and a person who is employed by (or in partnership with) the professional legal adviser or other relevant professional adviser to provide assistance or support.
B22.17 Failure to Disclose Possible Money Laundering
The Proceeds of Crime Act 2002 and Money Laundering Regulations 2003 (Amendment) Order 2006 (SI 2006 No. 308) includes amendments to the Proceeds of Crime Act 2002, s. 330. In order to give full effect to EU Directive 2001/97/EC, art. 2(2) amends s. 330(6)(b), (9A)(a) and (10) (failure to disclose: regulated sector) to extend the persons to whom the defence applies to a "relevant professional adviser", as defined by s. 330(14), which is inserted by art. 2(5). The amendments made by art. 2(3) and (4) provide a defence for a person who is employed by (or in partnership with) the professional legal adviser or other relevant professional adviser to provide assistance or support.
B23 Immigration Offences
B23.6 Entering United Kingdom without Passport etc
Having previously upheld the reverse onus provisions of the Asylum and Immigration (Treatment of Claimants) Act 2004, s. 2, against challenges based on their alleged incompatibility with the ECHR (see [2005] EWCA Crim 2865), the Court of Appeal in Navabi [2006] All ER (D) 18 (Jan) has now certified that this issue raises points of law of general importance that may be fit for possible consideration by the House of Lords.
PART D PROCEDURE
D1 Police Powers
D1.49 Surveillance of Premises
In Rosenberg [2006] EWCA Crim 6, the prosecution were permitted to introduce, as part of their evidence against R, video-recordings made by R's neighbours, which apparently showing R to be engaged in various drug-dealing activities. It was objected that the recordings involved the unauthorised use of covert and intrusive devices and thus infringed the Regulation of Investigatory Powers Act 2000 and the ECHR, Article 8; and that the evidence in question ought therefore to have been excluded under the Police and Criminal Evidence Act s 78.
Dismissing R's appeal, it was held that the surveillance had not been covert, within the meaning of the Regulation of Investigatory Powers Act 2000, s. 26(9), because the presence of the camera had been obvious and R had indeed been fully aware of it. Moreover, the surveillance had neither been carried out by the police nor carried out with their encouragement. The police had warned the neighbours that their activities might infringe Article 8, but that did not mean the prosecution could not use evidence obtained by means of that surveillance.
D2 Courts, Judges and Parties
D2.50 Sitting in Camera
In R v Central Criminal Court, ex p A and others [2006] EWCA Crim 4, the Court of Appeal confirmed that, in the case of an appeal against an order made pursuant to Criminal Procedure Rules 2005, r. 16.10, the court has no discretion under r. 67.2 to hold an oral hearing, and opined that that this lack of discretion involved no conflict with the ECHR.
D3 Criminal Procedure Rules
D3.3 Case Management
The President of the Queen's Bench Division has issued a protocol which applies to all terrorism cases and is essentially a required procedure for case management in all such cases. A pdf version of the protocol is available here.
D8 Disclosure
D8.1 Disclosure: General
A disclosure protocol has been published by the Court Service. It is concerned with the management of issues relating to the disclosure of unused material. The status of the protocol is unclear; it was prepared by a team led by two leading judges. A pdf version of the protocol is available here.
D8.6 Review by the Court
Material in the hands of the company which manufactures Intoximeter machines used by police forces in drink-driving cases is not 'prosecution material' within the meaning of the Criminal Procedure and Investigations Act 1996, s. 8(3) and (4) and therefore cannot be the subject of an order for disclosure under s. 8(2): DPP v Wood [2005] EWHC 2986 (Admin).
D12 Juries
D12.2 Excusal as of Right
The Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353) amend the Criminal Procedure Rules 2005. The amendments include the addition of a new r. 39.2 (appeal against refusal to excuse from jury service or to defer attendance). It incorporates the provisions which were formally found in r. 25 of the Crown Court Rules 1982.
D13 Trial on Indictment: General Matters and Pre-trial Procedure
D13.14 Preparatory Hearings under the Criminal Procedure and Investigations Act 1996, ss. 28 to 38
The Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353) amend the Criminal Procedure Rules 2005. The amendments include the substitution of part 15 (preparatory hearings in cases of serious fraud and other complex, serious or lengthy cases in the Crown Court). The new version makes provision for applications for preparatory hearings on the ground that the prosecutor wants the court to order that the trial be without a jury under the Criminal Justice Act 2003, s. 43 or s. 44.
D16 Trial on Indictment: Close of Defence Case to Retirement of the Jury
D16.16 Judge's Summing-up: the Facts
It may be appropriate in some cases for a judge to leave a case to the jury on a different basis from that presented by the prosecution, but where this is done it must be done in a way so as to avoid any possible injustice to the defendant. The judge must accordingly warn counsel at the earliest opportunity and must give the defence the opportunity to consider whether it might be appropriate to call further evidence. See Powell [2006] All ER (D) 146 (Jan), 23 January 2006, CA.
PART E SENTENCING
E18 Compensation Orders
E18.1 Power to Make Compensation Orders
Quigley v Stokes [1977] 1 WLR 434 was applied in Divers [2006] All ER (D) 210 (Jan), 27 January 2006, CA in which D had taken V's car and his accomplice had then driven it in such a way as to damage both it and other vehicles. At trial, compensation orders were imposed against the defendant, in respect of the damage caused to all three cars; but on appeal it was held that, by virtue of the Powers of Criminal Courts Act 2000, s. 130(5), compensation was payable only to the owner of the vehicle that had been taken without consent.
E21 Confiscation Orders
E21.6 Determination of Benefit from Criminal Conduct
Smith (David) [2001] UKHL 68 and Lazarus [2004] EWCA Crim 2297 were amongst the authorities considered by the Court of Appeal in Bakewell [2006] EWCA Crim 2, in which the prosecution successfully appealed against a confiscation order for "10,000 made against the defendant, and had it raised to a total of "403,959.67.
A huge consignment of cigarettes on which no duty had been paid was found hidden behind a load of tyres in a container imported by the defendant. He pleaded guilty to the importation, but insisted that his share of the proceeds was to have been confined to the tyres themselves, valued at just £10,000, and this was the basis of the original confiscation order; but as the Court of Appeal observed, this order did not address the fact that the defendant was responsible for the importation and storage of the cigarettes, and had derived a pecuniary advantage within the meaning of the subsection immediately upon the importation. Until the duty of £393,959.67 on the cigarettes was paid, he would continue to maintain the pecuniary advantage that he had obtained on the importation. The ultimate fate of the cigarettes was irrelevant, as was the question of how the profits of that crime were eventually to have been divided.
E24 Mentally Disordered Offenders
E24.5 Hospital and Limitation Directions
The power of Crown Court judges to make 'hybrid' orders under the Mental Health Act 1983, s. 45A was examined by the Court of Appeal in Staines [2006] EWCA Crim 15.
The defendant pleaded guilty in 2000 to manslaughter on the grounds of diminished responsibility. Medical reports indicated that she was suffering from a psychopathic disorder, which made it appropriate for her to be detained in a hospital for medical treatment, which it was hoped might alleviate the condition or prevent it from deteriorating. She was considered to present a considerable risk of serious danger to the public and it was not possible to know when, if at all, she could safely be released. Having decided that the imposition of a hospital order under the Mental Health Act 1983, ss. 37 and 41 would not be appropriate, the trial judge sentenced her instead to custody for life with a hospital direction and a limitation direction under ss. 45A and 41 of the Act.
A mental health review tribunal later subsequently reclassified her condition from psychopathic disorder to psychopathic disorder and mental illness but, having considered the earlier ruling in Drew [2003] UKHL 25, the court saw no reason to interfere with the original sentence by substituting orders under ss. 37 and 41. Section 45A was not inapplicable to cases where the offender suffered from both a psychopathic disorder and a mental illness, nor would evidence of mental illness have allayed the judge's concern that lack of treatability might result in premature release at a time when she still represented a considerable risk of serious danger to the public.
Tomlinson J concluded the judgment of the court with this observation:
"We respectfully add our voices to those of their lordships who decided Drew in expressing the hope that further thought may be given to exercise of the power under s. 45A(10) of the Mental Health Act so that the additional measure of control afforded by an order under s. 45A may be made more widely available than it is at present."E25 Notification Requirements under the Sexual Offences Act 2003
E25.3 Notification Period
Longworth [2006] UKHL 1 illustrates a significant difference between the circumstances in which notification requirements may or must be imposed under the Sexual Offences Act 2003 and those in which such requirements could previously be imposed under the Sex Offenders Act 1997.
The appellant had pleaded guilty to offences under the Protection of Children Act 1987, s. 1(1)(a) and the Criminal Justice Act 1988, s. 160(1), and had been conditionally discharged for 12 months on each count. The question then arose as to whether he should be subjected to notification requirements under the 1997 Act, and the judge eventually ruled that he should indeed be subject to such a requirement for a period of five years.
The House of Lords disagreed. A conditional discharge was not in their view a 'conviction' to which the notification requirements in part I of the 1997 Act attached, because by the Powers of Criminal Courts (Sentencing) Act 2000, s. 14(1), 'a conviction of an offence for which an order is made . . . discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made . . . '
Under the Sexual Offences Act 2003, however, a person conditionally discharged in respect of a listed offence is expressly subject to notification requirements for a period of that conditional discharge. No such obligation arises under either Act where the defendant receives an absolute discharge.
The House of Lords also confirmed that the obligation to register as a sex offender arises upon (and must be measured from) the date of conviction rather than sentence. But Lord Mance, in giving the opinion of the Appellate Committee, recognised (at [29]) that this might sometimes give rise to a problem:
"In many cases involving an absolute or conditional discharge, such sentence will be passed on the same date as conviction (or it will be made clear that such will be the sentence, as it was by the judge in this case). However, that will not always be so. Accordingly, if the trigger to any notification requirement is conviction rather than sentence, there will be cases where it is uncertain at conviction not merely how long the period of notification will be (a matter of irrelevance to the initial notification), but also whether or not the conviction gives rise to requirement to notify for any period at all. No such requirement can exist, or at all events survive, under the 1997 Act in the event of an absolute or conditional discharge, or under the 2003 Act in the event of an absolute discharge. If the sentence passed is such a discharge, there could be no problem. Indeed, as I have pointed out, s 14(1) would preclude the Crown from proceeding under s 3 of the 1997 Act or s 91 of the 2003 Act, even it would ever occur to anyone to think of doing so. The potential problem arises if there is a real likelihood of such a discharge, but in the event the judge imposes a heavier sentence. By this time, the period (of 14 or now 3 days) within which notification must be effected is likely to have expired. The practical answer to this anomaly under the current legislation is likely to be that an offender will never be prosecuted under s. 92(1)(a) for failure to notify at a date when he has not yet been sentenced, if prior to sentence he had good reason to believe that he would be absolutely discharged. Though we did not hear argument on this point (and I mention it for completeness, without expressing any view), he might even be able to argue, if he was prosecuted, that he had a legal defence to any prosecution under that subsection, in that he had "reasonable excuse" for not complying with a requirement to notify which had only become clear at a later date."PART F EVIDENCE
F1 General Principles of Evidence
F1.12 Lies
Gultutan [2006] All ER (D) 230 (Jan), 30 January 2006, CA confirms that a Lucas direction is not needed in cases where there is a simple conflict between the prosecution's evidence and that of the defendant and his witnesses. The mere fact that the defendant's alibi was precise and supported by witnesses did not make it more likely that a jury would treat a rejection of such an alibi as supporting the prosecution case.
F4 Competence and Compellability of Witnesses
F4.16 Children and Persons of Unsound Mind
The problems that may be caused by attempts to admit evidence from very young children were considered by the Court of Appeal in Powell [2006] EWCA Crim 03. The witness in this case was a child aged 3½ who had complained of a very serious sexual assault (involving cunnilingus) allegedly committed by the appellant. She had made a complaint within a short time of the alleged incident, and had appeared competent when interviewed on video, but her memory seemed to have deteriorated by the time of the trial itself and she had been unable to deal intelligibly with the defence's attempt at cross-examination.
The Court of Appeal quashed his conviction, even though it was supported in some respects by DNA evidence. Scott Baker LJ said:
'[33] . . . While evidence in chief through the pre-recorded video indicated the child just about passed the competence threshold, the position was different when one looked at the whole of her evidence including the largely abortive attempt at cross-examination. What is relevant is the complainant's competence to give evidence at the time of the appellant's trial. It may be it was due to the lapse of time and lack of memory that the complainant was unable to understand the questions or give answers to them which could be understood. One simply does not know. The problem is that her answers simply were not intelligible in the context of the case. She was not, in our view, a sufficiently competent witness for the defence to be able to put its case. The onus of proof was on the Crown to establish competence and they failed to discharge it.[34] In our judgment the judge should have reconsidered the question whether the complainant was a competent witness at the conclusion of the complainant's evidence. Had she done so she would, or should, have concluded that she was not and then withdrawn the case from the jury.'
It is possible that the outcome of the case would have been more satisfactory had the trial not been delayed for several months. Scott Baker LJ was highly critical of these delays:
'[41] Explanations can be found for each element of the delay in this case. However the plain fact is that where a case depends on the evidence of a very young child it is absolutely essential (a) that the ABE [achieving best evidence] interview takes place very soon after the event and (b) that the trial (at which the child has to be cross-examined) takes place very soon thereafter. As the expert evidence in this case showed, very young children simply do not have the ability to lay down memory in a manner comparable to adults. Looking at this case with hindsight, it was completely unacceptable that the appellant should have been tried for an offence proof of which relied on the evidence of a 3" year old when the trial did not take place until over nine months had passed from the date of the alleged offence. Special efforts must be made to fast-track cases of this kind and it is simply not an option to wait weeks for example for forensic evidence to become available.
[42] In our judgment this conviction is not safe. The child was very young, just 3". That was not in itself necessarily an insurmountable obstacle for the prosecution. Had she been interviewed appropriately and promptly and had the trial taken place very soon after the event it is possible that when she was cross-examined by the defence she would have given intelligible answers that indicated she was a competent witness. Unfortunately the answers that she gave indicated that she was not. Competency to give evidence relates to the whole of a witness's evidence and not just to part of it. The judge should have stopped the case at the conclusion of the complainant's evidence.'
F16 Exceptions to the Rule against Hearsay
F16.17 Hearsay Admissible in the Interests of Justice
The obligation imposed by the Criminal Justice Act 2003, s. 114(2) was examined by the Court of Appeal in Taylor (2006) The Times, 7 February 2006. The requirement that the court or judge 'must have regard to the following factors', should not be taken to mean that a trial judge must embark upon a detailed investigation (perhaps involving the hearing of evidence) in respect of each of the nine factors listed in s. 114(2). There is nothing in the wording of the statute that requires a court or judge to reach a specific conclusion in relation to each listed factor. If it did have that meaning, trials would become greatly elongated. Section 114(2) does however require an exercise of judgment in the light of any particular factor identified in accordance with that provision.
APPENDICES
Appendix 1 Criminal Procedure Rules 2005
The Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353) make a series of amendments to the Criminal Procedure Rules 2005.
Appendix 2 Codes of Practice under the Police and Criminal Evidence Act 1984
Home Office Circular 56/2005 includes corrections to errors in the PACE Codes B and C. The corrections relate to applications under the Police and Criminal Evidence Act 1984, sch. 1 or the Terrorism Act 2000, sch. 5 (which must still be made to a circuit judge) and to the disposal of drug testing samples.
NEW LEGISLATION
Racial and Religious Hatred Act 2006
This Act received the Royal Assent on 16 February but is not yet in force. It will be more fully considered in next month's update. The main content of the Act is to be found in the Schedule, which will insert a new series of provisions (ss 29A to 29N) into the Public Order Act 1986 once it is brought into force. For the full text, click here.
Proceeds of Crime Act 2002 and Money Laundering Regulations 2003 (Amendment) Order 2006 (SI 2006 No. 308)
This Order makes amendments to the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2003. In order to give full effect to EU Directive 2001/97/EC, art. 2(2) of the Order amends s. 330(6)(b), (9A)(a) and (10) (failure to disclose: regulated sector) to extend the persons to whom the defence applies to a "relevant professional adviser", as defined by s. 330(14), which is inserted by art. 2(5). The amendments made by art. 2(3) and (4) provide a defence for a person who is employed by (or in partnership with) the professional legal adviser or other relevant professional adviser to provide assistance or support. The Money Laundering Regulations 2003 also give effect to that Directive and art. 3 of the Order makes matching amendments to reg. 7 (internal reporting procedures).
Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353)
These Rules make the following amendments to the Criminal Procedure Rules 2005:
A new part 15 (preparatory hearings in cases of serious fraud and other complex, serious or lengthy cases in the Crown Court) is substituted for the existing one. The new version makes provision for applications for preparatory hearings on the ground that the prosecutor wants the court to order that the trial be without a jury under the Criminal Justice Act 2003, s 43 or s 44.
Part 18 (warrants) is substituted so as to simplify the existing rules. Rule 34.1 (hearsay evidence: when this part applies) is amended to confine the application of part 34 to cases where 11the evidence is admissible on one or more of the following grounds, namely where (a) it is in the interests of justice for it to be admissible, (b) the witness is unavailable to attend, (c) the evidence is contained in a business or other document, or (d) the evidence is multiple hearsay (i.e. where ss. 114(1)(d), 6, 117 and 121 of the Criminal Justice Act 2003 apply).
In part 35, two amendments are made. Rule 35.2 (introducing evidence of non-defendant's bad character) is amended to provide that an application to introduce the previous convictions of a prosecution witness must be made within 14 days of the date when the prosecutor discloses those convictions (rather than within 14 days of the date when the prosecutor complies or purports to comply with his initial duty of disclosure under s. 3 of the Criminal Procedure and Investigations Act 1996 as previously required). Rule 35.6 is amended to extend the time limit for a defendant's application to exclude evidence of his own bad character from 7 days to 14 days.
A new r 39.2 (appeal against refusal to excuse from jury service or to defer attendance) is added. It incorporates the provisions which were formally found in r. 25 of the Crown Court Rules 1982.
Rule 57.15 (external requests and orders) is added. It applies the rules in parts 57, 59 to 61 and 71 to proceedings under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.
A new r 65.11 (appeal against order following discharge of jury because of jury tampering) applies part 65 to appeals under s. 47 of the Criminal Justice Act 2003.
Part 66 (appeal to the Court of Appeal against ruling adverse to prosecution) is amended to ensure that the Registrar is not required to give or serve notice to a defendant or an interested party in a "public interest ruling" case, unless a judge or the Court of Appeal otherwise directs.
Part 68 (appeal to the Court of Appeal against conviction or sentence) and part 74 (appeal to the House of Lords) are amended so that those parts will apply, where appropriate, to appeals made under the Criminal Justice Act 2003, sch. 2, para. 14. Paragraph 14 provides a right of appeal against decisions of the High Court in cases where the Secretary of State has, prior to the commencement of sch. 21 to that Act, given notice of a minimum period to be served by the prisoner before being released on licence or, that the prisoner should never be released on licence, and the prisoner has exercised his right under the transitional provision contained in sch. 22, to have that decision reviewed by the High Court.
The opportunity has also been taken to correct some typographical errors in the rules and to bring up to date references to other legislation.
Criminal Defence Service (Funding) (Amendment) Order 2006 (SI 2006 No. 389)
This Order confers a limited right for solicitors to apply for the reclassification of certain offences when having their fees determined.
Anti-social Behaviour Act 2003 (Commencement No. 6) (England) Order 2006 (SI 2006 No. 393)
This Order brings ss 48 to 52 into force in England on 6 April 2006. These sections relate to graffiti removal notices.
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