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Academic, Professional, & General
Blackstone's Criminal Practice 2006
Updates
January 2006
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Blackstone's Criminal Practice 2006

January 2006

January Updates

The January 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.

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A3 General Defences

A3.30 Self-defence

In Rashford [2005] EWCA Crim 3377 the Court of Appeal held that a defendant need not as a matter of law be deprived of a defence of self-defence merely because it was he who instigated the confrontation at which the need for self defence allegedly arose. A person who kills in the course of a quarrel which he himself started, by provoking it or by entering into it willingly, might still act in self-defence if his 'victim' then retaliates or counterattacks. The question is whether the retaliation etc. was such that the defendant was entitled at that stage to defend himself. If the violence offered by the victim was so out of proportion to the defendant's initial act as to make the defendant fear he was in immediate danger from which he had no other means of escape, and if the violence which he then used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence.


A7 Human Rights Act 1998

A7.4 Interpretation Obligation

Ghaidan v Godin-Mendoza [2004] 3 All ER 411 was considered in Holding [2005] EWCA Crim 3185, a case involving an alleged offence under the Representation of the People Act 1983, s. 75(1) (prohibition of expenses not authorised by election agent) in which it was argued that the court should 'read and give effect to' the provision in a way which was compatible with the right to freedom of expression under the ECHR, Article 10, pursuant to the Human Rights Act 1998, s. 3.

Agreeing with this submission, the court held that the following propositions could be extracted from Ghaidan.

  1. Section 3 is an interpretive and not an amending provision. Parliament has retained the right to enact legislation which is not ECHR-compliant;
  2. In looking for the intention of Parliament, due weight must be given to the intention evidenced by s. 3 of the 1998 Act itself;
  3. Section 3 is not dependent on finding an ambiguity or absurdity in the text in order to bring it into conformity with a Convention right;
  4. Where s. 3 comes into play, it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions;
  5. But s. 3 cannot be used to go "against the grain" of the legislation;
  6. Section 3 is the primary means of ensuring compatibility with Convention rights, and a declaration of incompatibility is a last resort;
  7. The precise form of words read in for the purpose of s. 3 is of no significance. As Lord Nicholls said at [35]. "It is their substantive effect which matters".

In R (on the application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69, the House of Lords (affirming the earlier decision of the Divisional Court ([2004] EWHC 2753 (Admin)) adopted a radical reinterpretation of the Criminal Justice Act 2003, sch. 22, para. 11 in order to avoid incompatibility with the ECHR, Article 6. See E4.1 below. As their lordships explained, however, the Secretary of State had expressly accepted the need for such reinterpretation should the House find para. 11 to be incompatible as it stood and the House was therefore not asked to decide whether such a bold exercise in "interpretation" would otherwise have been permissible. Arguably it may have infringed propositions (i) and/or (v) from Ghaidan v Godin-Mendoza (above).


A8 Jurisdiction

A8.12 Offences committed at sea

In Goodwin [2005] EWCA Crim 3184, the Court of Appeal held that a jet ski, or indeed any other craft used merely for the purpose of 'having fun on the water' is not a ship, even if it is buoyant and capable of carrying passengers, because such craft are not used in navigation (i.e. for the purpose of conducting a voyage). It makes no difference if a jet ski is registered (as many are) under the Merchant Shipping Act 1995.

It is submitted that a different conclusion might have to be reached should a future case arise involving a jet ski that was indeed being used for the purpose of navigation on short voyages or journeys. The definition of a ship in the Merchant Shipping Act 1995, s. 313 is not dependent on size or on whether the craft is capable of conducting deep ocean voyages.

PART B OFFENCES

B1 Homicide and Related Offences

Note the publication on 20 December 2005 of the Law Commission's Consultation Paper No 177, "A New Homicide Act for England and Wales". This is available for download free of charge.


B3 Sexual Offences

B3.1 Sexual Offences Act 2003

In A (Prosecutor's appeal) (2006) The Times, 5 January 2006 the Court of Appeal was faced with the same kind of problem as that which arose in Newbon [2005] Crim LR 738, [2005] Arch News 6, and came to the same conclusion, although in this case the offences in question were indecent or sexual assaults, rather than offences of rape as alleged in Newbon. The court noted that the Secretary of State is empowered by s. 141 to make transitional arrangements to deal with this kind of problem, but has failed to exercise his powers, and it was not open to the court to cure the inactivity of the Secretary of State by way of statutory interpretation.

B3.34 Rape of a Child: Sentencing

In A [2005] EWCA Crim 3104 the Court of Appeal considered the appropriate level of sentence in a case where the defendant, aged 15, 'befriended' the complainant, aged 11, over the Internet, arranged to stay at her house and had intercourse with her on four separate occasions with her full cooperation. The defendant's own youth was clearly a factor in mitigation, but he had been reprimanded not long before for offences of making indecent photographs of children and his conduct towards the complainant and her mother was marked by persistence and deceit. The trial judge stated that the starting point in this case was ten years' detention. In the light of the defendant's guilty pleas, he was sentenced to seven years' detention under the Powers of Criminal Courts (Sentencing) Act 2000, s. 91.

Having considered Corran [2005] EWCA Crim 192 and other authorities, the court of Appeal held that the judge's starting point had been too high, but that in light of the defendant's interest in child pornography and the risk of future offending an extended sentence was required, so the final sentence was an extended sentence of seven years comprising a custodial element of three and half years and an extended licence period of three and a half years. Orders were also made disqualifying him from working with children and banning him from using Internet chat rooms for a period of ten years.


B13 Offences affecting Enjoyment of Premises

B13.69 Trespass on a Designated Site

The Serious Organised Crime and Police Act 2005 (Designated Sites) Order 2005 (SI 2005 No. 3447) designates sites for the purpose of the Serious Organised Crime and Police Act 2005, ss. 128 (sites in England and Wales) and 129 (sites in Scotland). Northwood Headquarters, nine RAF sites and three naval establishments are designated.


B20 Offences related to Drugs

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment( (No. 3) Regulations 2005 (SI 2005 No. 3372) amend part 1 of sch. 4 to the principal regulations, which lists some of the drugs which are subject to the record-keeping, information and destruction requirements imposed by regs. 22, 23, 26 and 27, by inserting Ketamine in the list.

PART C ROAD TRAFFIC OFFENCES

C3 Offences relating to Driving Triable on Indictment

C3.39 Driving while Disqualified

As to proof of previous disqualification (and in particular as to the problem of proving that the present defendant is the same person as the defendant who was previously disqualified), see Pattison v DPP [2005] EWHC 2938 (Admin), in which the court accepted the following propositions.

  1. As with any other essential element of an offence, the prosecution must prove to the criminal standard that the person accused was a disqualified driver.
    2. It can be proved by any admissible means, such as an admission (even a non-formal one) by the accused, that he was a disqualified driver.
  2. If a certificate of conviction is relied upon, pursuant to the Police and Criminal Evidence Act 1984, s. 73, then it is an essential element of the prosecution case that the accused is proved to the criminal standard to be the person named on that certificate.
  3. Three clear ways which this can be proved are the three ways identified in Derwentside Justices, ex parte Heaviside [1996] RTR 384.
  4. There is, however, no prescribed way that this must be proved. It too can be proved by any admissible means.
    5. An example of such means is a match between the personal details of the accused on the one hand and the personal details recorded on the certificate of conviction on the other hand.
  5. Even in a case where the personal details such as the name of the accused are not uncommon, a match will be sufficient for a prima facie case.
  6. In the absence of any evidence contradicting this prima facie case, the evidence will be sufficient for the court to convict.
  7. The failure of the accused to give any contradictory evidence in rebuttal will be a matter to take into account. If it is proper and fair to do so and a warning has been given, it can additionally give rise to an adverse inference under the Criminal Justice and Public Order Act 1994, s. 35(2).

PART D PROCEDURE

D1 Police Powers

D1.2 Power to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code A includes changes covering the power to search for a firework, and indication that a person's religion cannot be a reasonable ground to search, a change in respect of recording "stop-only" encounters and a new annex distinguishing between a constable and a community support officer's powers.

D1.12 Powers of Arrest without Warrant

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia ss. 110 and 111 of and sch. 7 to the Act. These provisions concern powers of arrest and are fully described in the main work. The repeal of the Police and Criminal Evidence Act 1984, s. 25 and sch. 1A are also brought into force by this Order.

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect.

D1.20 Detention and Treatment of Suspects

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code C includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 to test for drugs and search for drugs using x-rays and ultrasound.

D1.39 Entry under Warrant

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia ss. 113 and 114(1) to (8) of to the Act. These provisions concern search warrants and are fully described in the main work.

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The main changes to Code B reflect the changes made by the Serious Organised Crime and Police Act 2005 relating to multiple premises warrants, all premises warrants and warrants permitting multiple entries.

D1.45 Entry under Warrant: Safeguards

The Serious Organised Crime and Police Act 2005 (Amendment) Order 2005 (SI 2005 No. 3496) amends provisions of the 2005 Act and provisions of the Police Act 1997 and the Police and Criminal Evidence Act 1984 which are prospectively inserted by it. In particular, ss. 15 and 16 of the 1984 Act are amended to correct mistakes arising from sloppy drafting of the 2005 Act.


D7 Asset Recovery and Confiscation

D7.2 Civil Procedures: Recovery Orders and Taxation

The scope and application of civil procedures for the recovery of criminal property was examined by Sullivan J in Director of the Assets Recovery Agency v Green and others [2005] All ER (D) 261 (Dec). The issue in question was that of what exactly must be proved before a recovery order can properly be made.

By the Proceeds of Crime Act 2002, s. 241(3), the court must decide on a balance of probabilities whether it is proved - (a) that any matters alleged to constitute unlawful conduct have occurred, or (b) that any person intended to use any cash in unlawful conduct.

In civil proceedings for a recovery order under part 5 of the 2002 Act it is not necessary to allege or prove the commission of any specific criminal offence, but it is necessary to set out and prove the matters that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property in question is alleged to have been obtained. A claim for civil recovery cannot be sustained solely upon the basis that a defendant has no identifiable lawful income to explain his lifestyle and purchases. If Parliament had intended that a claimant should be able to recover property simply by persuading the court that it must have been obtained by or in return for some unspecified unlawful conduct, it would have said so.


D11 Arraignment and Pleas

D11.16 Unfitness to Plead In R (on the application of Hasani) v Blackfriars Crown Court [2005] EWHC 3016, the Divisional Court addressed the question of what procedure should be adopted when the defendant has been found unfit to plead, and (on a trial of the facts) is found to have committed the acts alleged but before any order is made following those findings he recovers sufficiently well to stand trial. It was held that a further hearing is required under the Criminal Procedure (Insanity) Act 1964, s. 4, even if this is only a formality. If the defendant is indeed found fit to stand trial, ss. 4A and 5 at once cease to be applicable and the court should then proceed to arraignment.


D16 Trial on Indictment: Close of Defence Evidence to Retirement of the Jury

D16.9 Closing Speeches

The permissible limits of what may be said in the course of a prosecutor's closing speech to the jury were considered by the Privy Council in Ramdhanie and others v The State [2005] UKPC 47, in which counsel had improperly implied that there was incriminating material which had not been put before the jury, and had also used emotive and unjustified comments as to the supposed weakness of the defence case and the strength and soundness of the prosecution's case.

The Privy Council advised that these faults gave rise to a material irregularity and unfairness in the trial process and rendered the jury's verdicts unsafe.


D22 Trial of Juveniles

D22.3 Determining Mode of Trial

In Crown Prosecution Service v South East Surrey Youth Court [2005] EWHC 2929 (Admin) the Court sought to reconcile the conflicting provisions of the Magistrates' Courts Act 1980, s. 24(1) with those of the Crime and Disorder Act 1998, s. 51A (added by the Criminal Justice Act 2003, sch. 3, para. 18) as presently in force.

The anomalies or points of conflict which may at present be faced by a youth court in deciding whether to send a child or young person to the Crown Court for trial are these:

  • the Magistrates' Courts Act 1980, s. 24(1) requires summary trial of a person under 18 unless the offence is grave and may require a sentence of long-term detention. In this case the defendant must be committed for trial. The definition of "grave offence" in the 1980 Act differs from that of "a serious offence" under the Criminal Justice Act 2003; but
  • the Crime and Disorder Act 1998, s. 51A as presently in force requires a child or young person to be sent to the Crown Court for trial if the offence is of the type specified in the Criminal Justice Act 2003, sch. 15 and, if the child or young person is found guilty, it appears that the criteria for an indeterminate sentence under s. 228 would be met.

The Criminal Justice Act, sch. 3, para. 9 (by which the Magistrates' Courts Act 1980, s. 24(1) will be amended so as to read "Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence he shall, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, be tried summarily.") has not as yet been implemented; and nor, according to the Divisional Court, is implementation contemplated for many months.

Faced with this conflict, the Court held that a youth court cannot ignore either of these provisions. In considering the applicability of these inconsistent provisions in a particular case, justices should however bear in mind the following:

  • The policy of the legislature, which is that those under 18 should, wherever possible, be tried in a youth court which is best suited to their particular needs.
  • The guidance given in Lang [2005] EWCA Crim 2864 at [17](iv), which states that if a foreseen specified offence is not serious there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant (and note what is said about sexual cases).
  • In most cases, where a non-serious specified offence is charged an assessment of dangerousness will not be appropriate until after conviction when, if the dangerousness requirements are met, the child or young person can be committed to the Crown Court for trial.
  • When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the youth court when assessing the competing presumptions in favour of (a) joint trial of those jointly changed and (b) the trial of juveniles in the youth court. Relevant factors include the age and maturity of the youth, the comparative culpability of each in relation to the offence, the previous convictions of each, and whether the trial can be severed without either injustice or inconvenience to witnesses.

    • D23 Anti-social Behaviour Orders

    D23.12 Relevant Statutes

    The Serious Organised Crime and Police Act 2005 (Amendment) Order 2005 (SI 2005 No. 3496) amends provisions of the 2005 Act, including s. 142(2) which amended the Crime and Disorder Act 1998, s. 1. The amendments corrects a typographical error in that the s. 142 amendment was intended for s. 1(1A) of the 1998 Act, not s. 1A(1).


    D24 Appeal to the Court of Appeal

    D24.8 Trial judge's certificate

    In Inskip [2005] EWCA Crim 3372 the Court of Appeal warned trial judges against over-readiness to certify a case as fit for consideration on appeal. The court expressed concern as to fact that the trial judge had granted a certificate to appeal in the case before them. Such a certificate should be granted only in truly exceptional circumstances. The normal rule is that it is for the Court of Appeal to consider whether a case is suitable for the granting of leave (Bansal [1999] Crim LR 484). The mere fact that a judge has had a difficult exercise of his discretion to decide whether or not a case should go to the jury is plainly not sufficient to amount to a ground of appeal.

    PART E SENTENCING

    E4 Mandatory Life Sentences

    E4.1 Murder: Life Imprisonment

    The transitional provisions in the Criminal Justice Act 2003, sch. 22 (and in particular para. 11(1)) were examined and found to be wanting by the House of Lords in R (on the application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69, [2005] All ER (D) 02 (Dec). Affirming the earlier decision of the Divisional Court ([2004] EWHC 2753 (Admin)), the appellate committee held that para. 11(1), by which an application under para. 3 or a reference under para. 6 is to be determined by a single judge of the High Court without an oral hearing, is (as it stands) incompatible with the ECHR and should be read subject to an implied condition that the judge has a discretion to order an oral hearing, where such a hearing is required to comply with a prisoner's rights under Artcile 6(1). This discretion may be exercised when, and only when, an oral hearing is necessary to meet the requirement of fairness under the Convention.


    E5 Custodial Sentences for Dangerous Offenders

    E5.5 Imprisonment for Public Protection

    In Duncan [2005] All ER (D) 150 (Dec) the Court of Appeal held that in a case involving a defendant who had a serious addiction to child pornography and had downloaded a huge number of photo images and video clips (including some of the worst kind) after previously trying to stop, a judge had been right to impose a sentence of imprisonment for public protection under the Criminal Justice Act 2003, s. 225. There was a significant risk of the defendant committing further specified offences. It followed that there was a significant risk of serious harm to the public, and in those circumstances the trial judge had no choice but to impose such a sentence.

    See also Lang and other appeals [2005] EWCA Crim 2864.


    E23 Exclusions and Disqualifications

    E23.7 Sexual Offences Prevention Orders

    In D [2005] EWCA Crim 2951, the defendant had committed a number of serious sexual offences against his daughter and a sexual offences prevention order was made under the Sexual Offences Act 2003, s. 104, which prohibited him from, inter alia, 'approaching, seeking to approach or communicating directly or indirectly with' his daughter or his son L (against whom no such offences had been committed). The Court of Appeal found that the sentencing judge had exercised his powers wrongly in respect of L, but nevertheless held that there was evidence justifying the making of such an order.

    The court went on to hold that the jurisdiction of the family court should in this case be reflected in the order because it was possible that L might one day wish to re-establish contact with the defendant, and would not himself be entitled to seek a variation or discharge of the order under the Sexual Offences Act 2003, s. 108. The original order was accordingly varied so as to provide: 'The [defendant] shall not, without the order of a judge exercising jurisdiction under the Children Act 1989, communicate or seek to communicate, whether directly or indirectly with L whilst he remains under the age of 16 years'.

    PART F EVIDENCE

    F6 Examination-in-Chief

    F6.13 Recent Complaints

    In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. See F16.17 below.


    F11 Admissibility of Previous Verdicts

    F11.1 Proof of Convictions and Acquittals

    See Pattison v DPP [2005] EWHC 2938 (Admin), (examined at C3.39 above).


    F12 Character Evidence: Evidence of Bad Character of Accused

    F12.1 The Criminal Justice Act 2003

    Hot on the heels of Renda [2005] EWCA Crim 2826, and Weir [2005] EWCA Crim 2866 (as to which see last month's update), Enright and others [2005] EWCA Crim 3244 provides the latest Court of Appeal guidance as to the proper interpretation of the 'bad character' provisions in the Criminal Justice Act 2003. Giving the judgment of the court, Scott Baker began by making these general observations (at [1]):

    1. "Often the first enquiry is whether it is necessary to go through the "bad character" gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the definition of bad character evidence which "has to do with the alleged facts of the offence" or evidence "of misconduct in connection with the investigation or prosecution of that offence". While difficult questions can arise as to whether evidence of background or motive falls to be admitted under those exclusions in section 98 or requires consideration under section 101(1)(c), it does not follow that merely because the evidence fails to come within the section 101 gateways it will be [inadmissible]. Often the first enquiry is whether it is necessary to go through the "bad character" gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the definition of bad character evidence which "has to do with the alleged facts of the offence" or evidence "of misconduct in connection with the investigation or prosecution of that offence". While difficult questions can arise as to whether evidence of background or motive falls to be admitted under those exclusions in section 98 or requires consideration under section 101(1)(c), it does not follow that merely because the evidence fails to come within the section 101 gateways it will be inadmissible. Where the exclusions in section 98 are applicable the evidence will be admissible without more ado.
    2. Applications to admit bad character evidence may well arise at an early stage giving rise to real difficulty for the trial judge. Some applications e.g. under section 101(1)(b) cannot be refused; others, for instance brought under section 101(1)(e) may well be difficult to refuse (of which more in a moment).The parties would be well advised to reflect, at the time of the application, as to the use to which such evidence is likely to be put and be in a position to assist the judge in this regard. There can be difficulties for the judge in summing up when bad character evidence that has been admitted turns out, for whatever reason, to have only marginal relevance to the issues before the jury.
    3. Under the new regime it is apparent that Parliament intended that evidence of bad character would be put before juries more frequently than had hitherto been the case. The judge's role is to determine admissibility under the statutory gateways and any questions of exclusion, for example under sections 101(3), 103(3) or section 78 of the Police and Criminal Evidence Act 1984. Once evidence of bad character is admitted (and not excluded) questions of weight are for the jury, subject to: (a) the judge's powers under [section] 107 (stopping the case where the evidence is contaminated) and (b) the judge's direction as to relevance and to other matters, as to which see R v Hanson [2005] 2 Cr App R 21, para 18 and R v Highton [2005] 1 WLR 3472 para 11.
    4. Where evidence of bad character is admitted, the judge's direction is likely to be of the first importance. It will need to cover the matters canvassed in Hanson and Highton. It may also need to pull threads together on an issue where the ground may have shifted considerably since the evidence was admitted. In an appropriate case, the judge's direction may need to underline that, given the course taken by the trial, the evidence of bad character is by then of very little weight indeed.
    5. Simply because an application to admit evidence of bad character is made by a co-defendant, the judge is not bound to admit it. The gateway in section 101(1)(e) must be gone through. Sections 101(1)(d) and (e) give rise to different considerations. In determining an application under [section] 101(1)(e) analysis with a fine tooth comb is unlikely to be helpful; it is the context of the case as a whole that matters. Section 112 makes this clear by its definition of what amounts to an important matter in issue.
    6. There are a number of other points about the position of co-defendants:
      1. the gateways under sections 101(1)(d), (f) and (g) are not open to them as only prosecution evidence, as defined in section 112, is admissible: see sections 103(6), 105(7) and 106(3).
      2. section 104(1) is not exhaustive of the scope of section 101(1)(e). It limits evidence relevant to a defendant's propensity to be untruthful.
      3. whether a defendant's stance amounts to no more than a denial of participation (see R v Varley 75 Cr App R 24), or gives rise to an important matter in issue between a defendant and a co-defendant will inevitably turn on the facts of the individual case.
    7. Whilst we note the observation of the Vice-President in R v Bovell [2005] 2 Cr App R 27 para 21 that the court entertained considerable doubt whether the mere making of an allegation is capable of being evidence within [section] 100(1), we are persuaded that it is so capable, at any rate when considering the effect of section 109 in relation to an issue under section 101(1)(d). This is an area, however, in which it is important to guard against satellite litigation (see Bovell para 22). Further, it is appropriate to proceed with caution and with due regard to the judge's discretion to exclude evidence.
    8. Finally we reiterate two points that have been made in the previous decisions of this court but which we think are worth repetition:
      1. 'admissibility' and 'use' give rise to different questions;
      2. the 'feel' of the trial judge is very important and this court will only interfere where the conviction is unsafe.

    F14 Character Evidence: Evidence of Bad Character other than Accused

    F14.7 Evidence of Substantial Probative Value

    Evidence as to spent convictions of a witness other than a defendant may still have substantial probative value so as to be admissible under the Criminal Justice Act 2003, s. 100: see Gadsby [2005] EWCA Crim 3206.


    F16 Exceptions to the Rule against Hearsay

    F16.17 Hearsay Admissible in the Interests of Justice

    In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. X appealed against his convictions for false imprisonment, rape, threats to kill and control of prostitution for gain. The complainant was a young Latvian girl who fell into his clutches. The issue concerned the admissibility (1) of statements made by this girl to her father's neighbour, to her mother and father by telephone, and to a security guard, and (2) of statements made by the security guard and a woman to a police officer of what the complainant had told them.

    The complainant was able to escape and flee to York but was found by X's associates and brought back to London. The prosecution adduced evidence that two Albanian men had, during this period, gone to her father's flat and inquired after her whereabouts, saying that she had gone missing.

    The Court concluded that the evidence of first-hand hearsay was admissible both under s. 120(7) and in the interests of justice generally. The complainant was a witness. It was highly probative. The offences were ones to which the proceedings related, the statement was of a complaint about conduct which, if proved, would constitute the offence, and it was made as soon as could reasonably be expected. In this case the complaints were made while she was still being held captive. The complaints were made freely and before they were adduced she had given evidence about the matter. In addition, under s 114(1)(d), it was clearly in the interests of justice that the hearsay statements be admitted because the defence case could at that stage have been that the complainant never made the alleged statements, rather than that they were false (which was the defence in fact advanced), and to any such assertion the evidence would have been material for the jury to consider. Evidence of what the two Albanians said of the complainant's disappearance was material to support her story of her escape to York. Insofar as this evidence was to the effect that the two men were trying to ascertain her whereabouts, it was evidence of fact rather than hearsay. Insofar as it was evidence that the two men had stated that she had disappeared it was hearsay. This was a significant part of the story in that it fitted in with the complainant's evidence of her escape to York.

    The multiple hearsay evidence (or double hearsay), of what was said to the police officer by those to whom the complainant had previously related her plight, was admissible - if not under s. 121(1)(a) then in the interests of justice under s. 121(1)(c).

    The court also ruled that s 114 is not incompatible with the ECHR, Article 6 or the Human Rights Act 1998. The issue of incompatibility arises only if the legislation cannot be construed and applied in accordance with the 1998 Act and the Convention. The court has a discretion to refuse to receive hearsay where its reception could contravene the statute. It is therefore capable of compatible operation. Furthermore, Article 6 does not convey an absolute right to examine every witness whose evidence is adverse to a defendant; the touchstone is whether the fairness of the trial requires this. Here, the witness was available for cross-examination and it was from her that all the statements came. X's appeal was accordingly dismissed.

    F16.48 Criminal Justice Act 2003: Additional Requirements for the Use of Multiple Hearsay

    In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. See F16.17 above.

    F18 Evidence of Identification

    F18.27 Photographing Suspects

    The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia s. 116 of the Act, which extends the power to photograph suspects. The effect is fully described in the main work.

    The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code D includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 mentioned above.

    F18.32 Fingerprints and Footwear Impressions

    The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia s. 118 of the Act, which inserts s. 61A into the Police and Criminal Evidence Act 1984, which concerns the taking of impressions of footwear. The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code D includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 mentioned above and the extended power to take fingerprints elsewhere than at a police station and without consent.

    APPENDICES

    Appendix 2 Codes of Practice under the Police and Criminal Evidence Act 1984

    The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect.


    Appendix 7 Human Rights

    Human Rights Act 1998, ss. 2 to 4, 6 and 10

    The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (SI 2005 No. 3429) transfers functions under certain enactments from the Secretary of State to the Lord Chancellor. The provisions affected include the Human Rights Act 1998, s. 2(3).

    NEW LEGISLATION

    National Police Records (Recordable Offences) (Amendment) Regulations 2005 (SI 2005 No. 3106)

    These Regulations amend the Schedule to the principal Regulations of 2000 (SI 2000 No. 1139), which lists those offences which are recordable despite the fact that they do not attract a custodial sentence. They add various offences under the Licensing Act 2003 and remove references to the Licensing Act 1964 and certain offences under the Sporting Events (Control of Alcohol etc) Act 1985.


    Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005 No. 3181)

    This Order makes provision relating to requests from an overseas authority for orders similar to restraint orders, the registration of external orders, the appointment of receivers and recovery orders relating to external proceedings.


    Misuse of Drugs (Amendment No 3) Regulations 2005 (SI 2005 No. 3372)

    These Regulations amend part 1 of sch. 4 to the principal regulations, which lists some of the drugs which are subject to the record-keeping, information and destruction requirements imposed by regs. 22, 23, 26 and 27, by inserting Ketamine in the list.


    Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (SI 2005 No. 3429)

    This Order transfers functions under certain enactments from the Secretary of State to the Lord Chancellor. The relevant enactments include the Courts and Legal Services Act 1990, the Access to Justice Act 1999 and the Human Rights Act 1998.


    Serious Organised Crime and Police Act 2005 (Designated Sites) Order 2005 (SI 2005 No. 3447)

    This Order designates sites for the purpose of the Serious Organised Crime and Police Act 2005, ss. 128 (sites in England and Wales) and 129 (sites in Scotland). Under those sections, a person commits an offence if he enters or is on any designated site as a trespasser (in Scotland, without lawful authority).


    Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495)

    This Order brings into force, on 1 January 2006, the following provisions of the 2005 Act:

    1. s. 1(3) (power in relation to NCS and NCIS);
    2. ss. 8 to 10 (general duty; priorities; codes of practice);
    3. ss. 17 and 18 (grants);
    4. s. 27 (regulations);
    5. s. 39 (directions about prosecutions);
    6. s. 42 (interpretation of chapter 1);
    7. s. 44(2) (designations);
    8. s. 52 (modification of enactments);
    9. s. 54 (interpretation of chapter 2);
    10. s. 58 and sch. 3 (transfers to SOCA);
    11. s.59 (minor and consequential amendments relating to the SOCA) insofar as it relates to sch. 4, para. 42 (amendment of s. 87 of the Road Traffic Regulation Act 1984);
    12. ss. 110 and 111 (powers of arrest) and sch. 7 (powers of arrest: supplementary);
    13. ss. 113 and 114(1) to (8) (search warrants);
    14. s. 116 (photographing of suspects etc.) to the extent not already in force;
    15. s. 118 (impressions of footwear);
    16. s. 122(7) (powers of designated and accredited persons) insofar as it relates to fully implementing sch. 8;
    17. s. 174(1) (minor and consequential amendments, repeals and revocations) and sch. 16 (remaining minor and consequential amendments (search warrants));
    18. s. 174(2) insofar as it relates to the entries in part 2 of sch. 17 (repeals and revocations) which are brought into force, namely those relating to the Unlawful Drilling Act 1819, the Vagrancy Act 1824, the Railway Regulation Act 1842, the Companies Clauses Consolidation Act 1845, the Railway Clauses Consolidation Act 1845, the Licensing Act 1872, the Public Stores Act 1875, the London County Council (General Powers) Act 1894, the London County Council (General Powers) Act 1900, the Licensing Act 1902, the Protection of Animals Act 1911, the Official Secrets Act 1911, the Public Order Act 1936, the Street Offences Act 1959, the Criminal Justice Act 1967, the Ministry of Housing and Local Government Provisional Order (Greater London Parks and Open Spaces) Act 1967, the Theft Act 1968, the Port of London Act 1968, the Criminal Law Act 1977, the Theft Act 1978, the Animal Health Act 1981, the Local Government (Miscellaneous Provisions) Act 1982, the Aviation Security Act 1982, ss. 15, 25, 66, 116 and 118 of, and schs. 1, 1A, 2, 5 and 6 to, the Police and Criminal Evidence Act 1984, the Sporting Events (Control of Alcohol etc.) Act 1985, the Public Order Act 1986, sch. 15 to the Criminal Justice Act 1988, ss. 4 and 163 of the Road Traffic Act 1988, the Road Traffic (Consequential Provisions) Act 1988, the Football Spectators Act 1989, sch. 3 to the Aviation and Maritime Security Act 1990, the Football (Offences) Act 1991, the Road Traffic Act 1991, the Transport and Works Act 1992, the Trade Union and Labour Relations (Consolidation) Act 1992, the Criminal Justice and Public Order Act 1994, para. 9 of sch. 1 to the Drug Trafficking Act 1994, the Reserve Forces Act 1996, the Offensive Weapons Act 1996, the Public Order (Amendment) Act 1996, the Confiscation of Alcohol (Young Persons) Act 1997, ss. 27 and 31 of the Crime and Disorder Act 1998, the Terrorism Act 2000, sch. 2 to the Football (Disorder) Act 2000, the Criminal Justice and Court Services Act 2000, ss. 42 and 47 of the Criminal Justice and Police Act 2001, the Anti-terrorism, Crime and Security Act 2001, para. 14 of sch. 11 to the Proceeds of Crime Act 2002, ss. 48 and 49 of, and sch. 6 to, the Police Reform Act 2002, para. 93 of sch. 6 to the Licensing Act 2003, the Aviation (Offences) Act 2003, the Communications Act 2003, s. 17 of the Crime (International Co-operation) Act 2003, ss. 4, 32 and 37 of the Anti-social Behaviour Act 2003, the Courts Act 2003, the Sexual Offences Act 2003, s. 3 of the Criminal Justice Act 2003, the Domestic Violence, Crime and Victims Act 2004, the Hunting Act 2004, the Prevention of Terrorism Act 2005 and the Serious Organised Crime and Police Act 2005.

    It also provides that s. 9(2)(a) of the 2005 Act (which concerns consultation procedures in determining the strategic priorities for the Serious Organised Crime Agency) does not apply during the period from 1 January 2006 to 31 March 2006.


    Serious Organised Crime and Police Act 2005 (Amendment) Order 2005 (SI 2005 No. 3496)

    This Order amends provisions of the 2005 Act and provisions of the Police Act 1997 and the Police and Criminal Evidence Act 1984 which are prospectively inserted by it. The amendments correct typographical errors and mistakes arising from sloppy drafting of the Act.


    Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503)

    This Order appoints 1 January 2006 as the date on which revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect.

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